Inside the Criminal Case: The exclusionary rule is on a losing streak

The latest defeat for the exclusionary rule came in the case of Utah v. Strieff. In Strieff, the Supreme Court of the United States held that law enforcement can detain a suspect illegally and still use evidence found subsequent to the illegal detention at trial, if, after the detention, it is discovered that the suspect had a valid arrest warrant. 2016 WL 3369419 (2016).

The facts of Strieff are not uncommon. Based on an anonymous tip, Salt Lake City police officers suspected that there was drug dealing at a local residence. Id. at 3. A police officer conducting surveillance saw Strieff exit the residence and without any justification, detained the suspect and requested identification. Id. As it turned out, Strieff had an arrest warrant for a traffic violation and was placed under arrest. Id. While being searched incident to the arrest, the officer located methamphetamine and drug paraphernalia. Id.

Strieff moved to suppress the evidence and the parties agreed that the officers did not have reasonable suspicion of criminal activity to justify the officer’s initial detention. Id. Based on Terry v. Ohio, the evidence found after an illegal stop would be suppressed, correct? Not so fast. The prosecutor countered that the evidence should not be suppressed because the existence of the arrest warrant attenuated the connection between the illegal detention and the seizure of the items. Id.

The United States Supreme Court agreed. Id. at 9. Justice Thomas, writing for the majority, began the opinion by relating that the “exclusionary rule” resulting from the “so-called ‘fruit of the poisonous tree’” doctrine was a “last resort, not our first impulse.” The court then analyzed Strieff’s situation with what has been referred to as the “attenuation doctrine.” Id. at 5. Under that doctrine, evidence located after unconstitutional police conduct may still be admitted into evidence provided that the period between the unconstitutional act and the discovery of the evidence is “remote or has been interrupted by some intervening circumstance.” Id. Justice Thomas ultimately concluded that there was a sufficient “break [of] the causal chain” between the illegal stop and the discovery of the contraband and that the Utah Supreme Court erred in suppressing it. Id. at 9.

In a dissent, Justice Sotomayor strongly disagreed. Id. Cautioning that one should not be “soothed by the opinion’s technical language,” she wrote that this is exactly the type of officer behavior that should be prohibited, not permitted. Id. Citing the temptation to forgive an officer, whose intuition proved correct, she noted that “a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.” Id at 10. And, for Justice Sotomayor, the officer’s conduct was just that: a wrong. She distinguished caselaw that excuses an officer’s innocuous discovery of subsequent information from one resulting from the “exploitati[on] [of] his own illegal conduct.” Id. at 11.

Finally, in a separate portion of her dissent, Justice Sotomayor, writing “only for herself” referenced her view of the practical applications of the majority opinion: “this case tells everyone … that an officer can verify your legal status at any time. … We must not pretend that the countless people who are routinely targeted by the police are ‘isolated.’ … They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.” Id. at 16.

It is hard to believe that the exclusionary rule does not apply to a case that starts with an anonymous tip, grows to a police officer’s hunch and results in an illegal detention of a suspect. But the reality is that the exclusionary rule is on a losing streak. Years ago, probable cause was replaced by an officer’s good faith. But now that doesn’t even seem to matter. In Strieff, the court gave the “OK” to what the parties agreed was police misconduct.

Strieff also illustrates how polarized the United States Supreme Court is when it comes to applying Fourth Amendment protections. On one hand, you have the majority calling the exclusionary rule a “last resort” and acting like the rule is an annoyance. While the exclusionary rule was designed to deter police misconduct, the majority makes it clear that the costs of applying the exclusionary rule to Strieff’s situation outweigh the deterrent benefits. On the other hand, you have a justice who, in her dissent, seems to argue that this case is proof that “our justice system” doesn’t work. Her words echo the voices of frustrated citizens in major cities who are begging for reforms in how police conduct business.

In the future, Strieff will likely allow police officers to stop an individual and then look for a reason to detain that individual. If a reason to detain the individual does arise, it will “attenuate” the illegal stop and the illegality of the stop will be forgiven. However, if no reason is found, then the innocent party and the police officer move on with their lives. Presumably, we lawyers may never hear about the latter situation unless it happens to someone we know. After all, practically speaking, what is the innocent person of limited resources likely to do after a situation like that?•

James J. Bell and K. Michael Gaerte assist lawyers and judges with professional liability and legal ethics issues. They also practice in criminal defense and are regular speakers on criminal defense and ethics topics. Bell is an attorney with Paganelli Law Group; Gaerte is an attorney with Bingham Greenebaum Doll LLP. They can be reached at [email protected] or [email protected]. The opinions expressed are those of the authors.