The Supreme Court term that just concluded has been noted by many commentators, myself included, as one in which the Court turned left, upholding affirmative action and striking down unjustifiable restrictions on women’s access to abortion. In these landmark cases, the Court took account of the realities of continuing discrimination, on the one hand, and hostility toward women’s reproductive freedom, on the other, and issued rulings that advance the cause of justice on both fronts.
In another area, however, the Court has been much less willing to acknowledge injustice and its own part in enabling it: criminal law enforcement. Notwithstanding the widespread Black Lives Matter protests over the past two years, growing bipartisan agreement that criminal sentences for many drug-related and other nonviolent crimes are too harsh, viral videos depicting police shootings of unarmed young black men, and class action lawsuits establishing that police surveillance and stop-and-frisk policies have disproportionately targeted minority communities, the Court continues to approach criminal justice cases without confronting the reality of race-based policing. As a result, the rules it promulgates too often exacerbate rather than curtail discrimination by police.
Nothing makes the Court’s ostrich-like approach more clear than a little-noticed decision issued in the second-to-last week of the term, Utah v. Strieff. As a technical matter, the case involved the application of the “attenuation” doctrine to the “exclusionary rule.” (The exclusionary rule bars admission of evidence seized illegally, as well as evidence found later as a result of the initial illegal stop and search; the attenuation doctrine qualifies the rule by providing that as the causal connection between the original illegal stop or search and subsequently discovered evidence becomes sufficiently distant, later-found evidence may be admissible.)
In practice, however, the case concerned whether police officers will be held accountable for subjecting citizens to illegal stops—an indignity disproportionately suffered by young black and Hispanic men. Countless studies have shown that when police officers have the discretion to apply an enforcement tool to anyone, they will disproportionately apply it to young black and Hispanic men; police officers, like the rest of us, are affected by implicit biases that make them more suspicious of the young than the old, of men than women, and especially, of blacks and Hispanics than whites.
In Strieff, the state admitted that its officer had conducted an illegal stop. He confronted Edward Strieff without having even the minimal “reasonable suspicion” constitutionally required for brief forcible stops conducted to confirm or dispel suspicion of ongoing crime. The officer saw Strieff leave a house that the police suspected, based on an anonymous tip, might be a site for drug transactions. But it is well established that an anonymous tip is insufficient to satisfy “reasonable suspicion,” and in any event the police had no basis for suspecting Strieff himself of engaging in such transactions.
Had the police officer immediately frisked Strieff and found drugs, there is no dispute that the drugs would be inadmissible as evidence. The Court has long ruled that evidence found in an illegal search is excluded from criminal trials, as this is the only effective way to deter illegal searches in the first place. In this case, however, before searching Strieff, the officer transmitted his name and identification to the dispatcher, who checked police records and found an outstanding arrest warrant, based on a traffic violation. The police officer then arrested Strieff pursuant to the warrant, searched him “incident” to the arrest, and found drugs.
The question in the case was whether the drugs should be excluded, because they were found as a result of an illegal stop, or whether the fact that the police had discovered a pre-existing warrant should allow the government to use the evidence, even though they would not have come across it absent the initial illegal stop. In a decision written by Justice Clarence Thomas, the Court ruled, 5-3, that the evidence could be admitted, because the arrest warrant was an “intervening circumstance” that broke the chain of causation between the illegal stop and finding the drugs. After all, Justice Thomas reasoned, the warrant was issued before the illegal stop, and was not based on the stop. Therefore, even though the encounter began with a patently illegal stop, the evidence could be used.
Justices Sonia Sotomayor, Elena Kagan, and Ruth Bader Ginsburg dissented. As Justice Kagan persuasively pointed out in her dissent, all the circumstances deemed relevant under the Court’s precedent favored suppression of the evidence. The evidence was found almost immediately after the illegal stop, and the search wouldn’t have happened absent the stop. The stop itself was blatantly illegal, because the police did not have reasonable suspicion, and indeed conceded as much; this was not a close call. And, contra Thomas, she maintained that the arrest warrant was not an unforeseeable “intervening circumstance,” since police routinely search for outstanding warrants when they conduct stops, and such warrants are common. In Ferguson, Missouri, for example, 16,000 of the town’s 25,000 residents have outstanding arrest warrants (often for unpaid traffic tickets). In Cincinnati, Ohio, one in three residents has an outstanding arrest warrant, again mostly for minor offenses. In the state of California, there are 2.5 million arrest warrants, amounting to 9 percent of the population. Moreover, because African-Americans and Hispanics are disproportionately arrested, they are also more likely to be the subject of an outstanding warrant.
The point of the exclusionary rule, the Court has said, is to deter unconstitutional conduct. But Strieff achieves the opposite; it gives a green light to police lawbreaking. After Strieff, the police can stop anyone they please, without any basis for suspicion, run an arrest warrant check, and conduct a search only after they get confirmation of an outstanding warrant. Whatever they find will be admissible, even though the stop was unconstitutional. And because the Court has previously held that there is no constitutional bar on arresting individuals even for minor offenses that do not merit a prison sentence upon conviction, there is no impediment to using the most technical offenses to generate arrest warrants. (In the case establishing that principle, a woman was arrested for failing to use a seat belt, an offense that under state law was punishable only by a small fine). Fail to pay your parking ticket, and you become vulnerable to illegal stops and searches.
The majority noted that police can be sued for damages for illegal stops, even if the evidence they find is not excluded from criminal trials, and that prospect might deter illegal conduct. But even assuming a victim can locate an attorney, doctrines granting immunity to the officer unless the violation is especially egregious make such suits virtually impossible to win. Even if one could overcome the immunity doctrine, moreover, the damages one could win for an illegal stop are so small that it is unlikely to be worth a lawyer’s time. As the Court recognized when it imposed the exclusionary rule half a century ago, absent this rule there is often no deterrent to police lawbreaking.
In theory, Strieff reduces constitutional protection for us all, as the case illustrated; Strieff himself is a white man. But in practice, as Justice Sotomayor pointedly insisted in an impassioned section of her dissent, in which she wrote “only for myself, and drawing upon my professional experiences,” the ruling will not affect everyone equally. “It is no secret,” she noted, “that people of color are disproportionate victims of this type of scrutiny.” Citing W.E.B. DuBois, James Baldwin, and Ta-Nehisi Coates, she noted that “black and brown parents” across the nation have had to give their children “the talk” about how to behave when confronted by an officer, “out of fear of how an officer with a gun will react to them.” And then, in language the likes of which has never before appeared in a Supreme Court opinion, she described the consequences of the Court’s ruling:
By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
Black and brown lives matter, she may as well have said. The truth of her words will be instantly recognizable on the streets of South Los Angeles, the Bronx, Ferguson, and many other heavily-policed communities. That no other justice would join her in candidly acknowledging the true costs of the Strieff ruling reveals just how far the Court still has to go if it is going to confront the continuing and pervasive injustice of the way police treat minority populations in America. In her opinion, Sotomayor did not quote from Coates’s Between the World and Me, but if she had, she might have cited this passage, in which he tells his son, “the law has become an excuse for stopping and frisking you, which is to say, for furthering the assault on your body. But a society that protects some people through a safety net of schools, government-backed home loans, and ancestral wealth but can only protect you with the club of criminal justice has either failed at enforcing its good intentions or has succeeded at something much darker.”