Fourth Amendment

How Scalia's Absence Could Protect the Exclusionary Rule

SCOTUS seems evenly divided on a drug search arising from an illegal stop.


NYU Law School

Although Antonin Scalia's critics on the left tended to portray him as a law-and-order conservative who automatically sided with cops in search-and-seizure cases, the late justice frequently defended the Fourth Amendment, a point that becomes clear when you consider his mixed record in cases arising from the war on drugs. But Scalia was no fan of the exclusionary rule, which deters violations of the Fourth Amendment by making illegally obtained evidence inadmissible. A case the Supreme Court heard this week suggests how Scalia's absence could help shore up that principle.

The case, Utah v. Strieff, began with a tip that the Salt Lake City Police Department received in December 2006. In response to a message from an anonymous caller who claimed "narcotics activity" was occurring at a house in South Salt Lake City, Officer Douglas Fackrell watched the place intermittently, for a total of three hours over the course of a week. He did not see much. Visits to the house were not "terribly frequent," but they were frequent and short enough to arouse Fackrell's suspicions. He decided to stop and question one of the visitors leaving the house so he "could find out what was going on" inside. That visitor happened to be Edward Strieff, who happened to have an outstanding warrant for a minor traffic offense, a fact that Fackrell discovered after asking for Strieff's ID and running a record check. Based on the warrant, Fackrell arrested Strieff and searched him, finding a bag of methamphetamine and drug paraphernalia in his pockets.

Since Fackrell did not have reasonable grounds to suspect Strieff was involved in criminal activity before stopping him, the initial detention was clearly illegal. Strieff argued that the evidence against him should be thrown out, since he would not have been searched if he had not been arrested, and he would not have been arrested if he had not been illegally detained. The Utah Supreme Court agreed, rejecting the government's claim that the intervening discovery of an outstanding warrant "attenuated" the connection between the Fourth Amendment violation and the search enough to make the evidence admissible.

Of the six justices who spoke during oral argument in the case on Monday, three seemed inclined to accept the attenuation argument, while the other three seemed likely to side with Strieff. George Washington University law professor Orin Kerr, a Fourth Amendment specialist, suggests that even split is likely to hold up when a vote is taken:

[Sonia] Sotomayor and Elena Kagan were clearly on the defense side, with Justice Ruth Bader Ginsburg probably there, too. Justice Samuel Alito and Chief Justice John Roberts seemed clearly on the government's side, with Kennedy probably with them. Justice Clarence Thomas maintained his usual silence, and Justice Stephen Breyer also asked no questions. In the past, Thomas has generally been a vote against the exclusionary rule and Breyer has generally been a vote in its favor.

If the vote is 4 to 4, the Utah Supreme Court's decision will stand, although the case will not set a national precedent. If Scalia were still on the Court, by contrast, the outcome might well have been yet another decision whittling away at the exclusionary rule.

Illustrating how such decisions encourage police abuses, Sotomayor noted that outstanding warrants for minor offenses are very common in some jurisdictions. According to the Justice Department's 2015 report on law enforcement in Ferguson, Missouri, more than three-quarters of the city's residents had outstanding warrants at the end of 2014. "There may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, 'Give me your ID; let me see your name,'" Sotomayor said. "And let me hope, because I have an 80 percent hance that you're going to have a warrant."

Kagan drove home Sotomayor's point. "There are a variety of circumstances in which police officers would really like to talk to somebody and really like to search them but don't have reasonable suspicion," she said. "And I think that the question that Justice Sotomayor is asking is if you're policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gained in that search."

In such a situation, cops would effectively be empowered to search many or most people at will, since a search is allowed following an arrest. Although police would be violating the Fourth Amendment by initiating such encounters, there would be no real consequences, since they could still use any evidence they found.

Alito's response to that concern was revealing. "There's a downside," he said. "If the officer makes an illegal stop, the officer exposes himself or herself to all sorts of consequences." In theory, yes. In practice, no. "Police rarely face consequences when they shoot innocent civilians," Slate's Mark Joseph Stern notes. "Does Alito really think they'll get in big trouble for detaining somebody unlawfully for a few minutes?"

Even in the unlikely event that the victim of an illegal stop files a lawsuit and either wins in court or obtains a settlement, the money will not come out of the officer's pocket. Cops tempted to embark on illegal fishing expeditions will not be deterred by fines they will never feel, but they may very well be deterred by the knowledge that they will have to throw the fish back.

NEXT: Brickbat: About that Deal with Iran

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  1. How Scalia’s Absence Could Protect the Exclusionary Rule

    Tulpa and Gamblin’ Bill Bennett hit hardest.

    1. Gluttonous Gamblin’ Bill Bennent.

  2. Since Fackrell did not have reasonable grounds to suspect Strieff was involved in criminal activity before stopping him, the initial detention was clearly illegal.

    Illegal detention is a powerful law enforcement tool in the war on drug users. How could constitutional experts like Scalia tie the government’s hands?

    1. illegal detention is just that…. and no more. The FACT that the coppers engage in this illegal activity wint impunity is repugnant. It is at least as bad, in society’s health, as the mere possession of a few pills some gummint hooh hah has decided you oughtn’t have. This behaviour on the oart of LE is very much akin to that of the hated (justifiably so) British Redcoats with their “Writs of Assistence” and “General Warrants”, enabling them to detain anyone at any time in any place for any or no cause, search their persons, houses, papers, effects, and take whatever they wished to take. Government’s Job One is not finding contraband in the pockets of folks minding their own business at that time and place. No, it is to PROTECT THE RIGHTS of individual citizens…. including those detailed in the 4th and 5th Articles of Ammendment.

      Coppers violating our rights is every bit as illegal as, and in the long run far more dangerous than, what this guy has “in its pocketses”. The only difference is, the coppers are encouraged to break these laws, and in so doing generate revenue for their jurisdictions, incur VERY heavy expenses which burden the rest of us, and degereate the liberty and security we all have. Or should have. Meanwhile these law-breaking LE do these things with impunity.

      1. Since the entireity of the federal Controlled Substances Act is unconstitutional, (FedGov have NO authority to dictate what we may/mayn’t put into our bodies) and has the “unforseen consequence” of creating millions of “criminals” and costing we taxpayers biullions to process and incarcerate them, and engenders an entire criminal class protecting their turf and property at gunpoint, motivating users to engage in deeper criminal activity to support their “habits” that, in a free market, would cost next to nothing or could be produced at home for near nothing, the terms of the Bill of Rights in particular need to be upheld the more vigourously.
        And no, I do not use any of those “controlled substances” safe the occasional prescription pharmaceutical, and refuse ALL opioid prescriptions for whatever “treatment”.

  3. It’s pretty sad when cops engage in illegal behavior and the conversation is about illegally obtained evidence being used in court, not cops losing their jobs and being prosecuted for their crimes.

    1. And that situation is a strong argument for the exclusionary rule.

      That and the fact that if someone is sent to prison based on a search which violated his 4th Amendment rights, what happens to that amendment’s specific mandate that the freedom from unreasonable searches and seizures “shall not be violated”?

      1. We know that is negated by the FYTW clause.

      2. “Ah, yes, the ‘unalienable rights.’ Each year someone quotes that magnificent poetry. Life? What ‘right’ to life has a man who is drowning in the Pacific? The ocean will not hearken his cries. What ‘right’ to life has a man who must die if he is to save his children? If the chooses to save his own life, does he do so as a matter of ‘right’? If two men are starving and cannibalism is the only alternative to death, which man’s right is ‘unalienable’? And is it ‘right’? As to liberty, the heroes who signed the great document pledged themselves to buy liberty with their lives. Liberty is never unalienable; it must be redeemed regularly with the blood of patriots or it always vanishes. Of all the so-called natural human rights that have ever been invented, liberty is the least likely to be cheap and is never free of cost.

        “The third ‘right’ — the ‘pursuit of happiness’? It is indeed unalienable but it is not a right; it is simply a universal condition which tyrants cannot take away nor patriots restore. Cast me into a dungeon, burn me at the stake, crown me king of kings, I can ‘pursue happiness’ as long as my brain lives — but neither gods nor saints, wise men nor subtle drugs, can insure that I will catch it.”

        1. Nature is a cruel bitch therefore we should have no principles. I like it.

        2. It takes a lot of insular thinking to reach the notion that the philosophers who coined the phrases “unalienable rights” and “natural rights” were too stupid to figure out that forces of nature are unconcerned with the interests of men.

          No shit. Those terms do not refer to man vs nature, they refer to man vs man. In a state of nature, you may be drowned by the seas, but no man has the right to drown you, nor to prevent you from saving yourself, or another from saving you, nor to prevent you from developing the means to avoid drowning, or any other danger of nature itself.

          On its face, the observation you’re quoting is both shallow and unoriginal. But it usually belies a disrespect for the rights of people with respect to other people. Basically, “nature can kill/harm/take from you, so why can’t I, or at least the government?”

    2. I have some illegally detained Albanian orphans locked in my basement. I’m sure when they get discovered there’ll be a long involved court case over whether or not I’m allowed to keep ’em. (Current state game regs say they gotta be over 48″ to be considered a keeper and there’s a bag limit of 5 – I have 7 midgets.)

    3. You’re talking about personnel issues which are private.

  4. It’s amazing when police get so lazy that they can’t even reach into their big grab bag of bullshit and at least invent a valid reason to detain somebody. “Matches the description of a suspect in the area” is a good starter…or how about an invented traffic violation? I was recently pulled over for “failure to signal” by a trooper who wanted to check me out and run my license. He knew that I could never prove it was a made up charge.

    In a perfect world these cops would be fired for abusing their authority, but in our imperfect world you’d think that police management would at least look to get rid of them for being lazy sacks of shit.

    1. Not sure about yours, but I happen to know that in MY state the law requiring me to signal has a caveat: WHEN OTHER TRAFFIC IS AFFECTED. If the copper is a quarter mile behing me in MY lane, and we two are the only vehicles on the road, I do NOT have to signal. And if stopped on this hare brained bit of silliness I will stand there and tell the officer to read the WHOLE law, and then explain to me how “OTHER TRAFFIC” was affected by my not displaying a signal. If he refuses, I will inform him that the stop is baseless, thus illegal. I will refuse to consent to any search, as any search has no grounds. IF he plays hardball, he will do so fully informed that his case has no grounds, and that anything he might find or discover as he proceeds illegally will not be admissible as evidence. If he goes Sullivan on me and detains, arrests, searches, seizes me anyway, I will let him… rather than “resisting arrest”, even though the arrest is groundless and false.

  5. Police “have every incentive to train the dog well,” said Justice Antonin Scalia, questioning the Florida court’s demand for detailed training, certification and field performance records in Aldo’s case. Lest we forget.

    1. They do train the dog well. The dog alerts whenever the cops want him to.

      1. You know that, I know that, we all know that. Scalia does not know that. This is why we need somebody from the Cochran Law Firm on the SCOTUS bench, the sleaziest damn TV DUI lawyer we can find, somebody that knows how the system really works.

        1. Better call Saul.

  6. Of course, the entire encounter was driven by the Court’s terrible decision in Hiibel. Thanks Scalia and Thomas.

    1. You know who else wanted his agents to be able to stop you at random and demand your papers?

      1. The train’s ticket master?

        That works two ways, doesnt it?

      2. George Three, the Kid King with delusions of grandeur and the head of a pig. That head got handed to him when he had to let LaFayette load all his troops on to England’s transport vessels for the long and constly voyage “home”, and sign a very infavourable treaty with those upstart Yankees at Yorktown.

  7. I tend to think the Exclusionary Rule is a very poor way to deter police misconduct. It has three major problems.

    1. It is not a penalty imposed upon the officer for misconduct, which means it is a weak deterrent at best. The officer violates one of the most fundamental rules in our society and the only penalty is that the State is prevented from using the evidence obtained.

    2. In order to even get that weak deterrent effect the accused must actually get to trial, or at least have an attorney savvy enough, and involved enough in the client’s case, to realize that there is an issue and move for exclusion. In a system where prosecutors routinely overcharge defendants and judges routinely hand down much higher sentences after trial than after a plea, that means a defendant has to roll the dice with decades of their life on the line to enforce their rights.

    3. It does literally nothing to protect the rights of the innocent, and instead rewards the guilty. If officer Bob illegally searches 50 people and finds 5 carrying contraband, the 5 now have an exclusionary rule claim that may help them avoid jail, regardless of what they actually did. The 45 on the other hand have had a fundamental right violated and will basically have no chance of any recompense.

    1. cont.

      I don’t know how we can get there, but I would vastly prefer a situation where officers were actually personally punished for violations of fundamental rights with fines, demotions, firings, and in extreme cases jail. I find it almost incomprehensible that we have twisted the idea of justice around to the point where we think doing nothing to the officer and giving more or less randomly selected criminals a pass actually upholds our rights.

      1. We live in a police state jarflax.

        I don’t know how we can get there either but getting rid of police unions, or better yet, all pub sec unions is a good place to start.

        1. And immunity. You can’t have rule of law when a set of people is not subject to it.

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  9. “But Scalia was no fan of the exclusionary rule”

    I am begining to think that Scalia was an idiot. I will give him the benefit of doubt and say that perhaps Antonin was a highly principled man, that his primary motivation were his principles. This is not true for the vast majority of the rest of the world. Nearly everyone else operates by incentives and disincentives.

    The exclusionary rule exists as a disincentive for Fourth Amendment violations. If that disincentive is removed it is an absolute certainty that 4A violations will be rampant. More than that the 4A exists as a protection for the integrity of evidence and in my mind it is also a certainty that hollowing out that protection would mean that manufactured evidence would become far more common than it is now.

    Between this and his breathtaking naivety with regards to drug sniffing dogs I am not sure how much longer I can give him the benefit of doubt.

    1. To Scalia’s limited credit, no decision he ever rendered on the police couldn’t have been corrected by the legislature. Unlike, say, Earl Warren and his cronies, Scalia was not big on empowering the judiciary by fiat.

      Under Scalia’s jurisprudence, the remedy for abusive policing was generally statutory and not judicial.

  10. “If the officer makes an illegal stop, the officer exposes himself or herself to all sorts of consequences.”

    What fucking universe does this stupid cocksucker live in? Cops rarely face consequence. Taxpayers might (and I have no sympathy for them either)

    The rule I would make is something like if the defendant is convicted, and at any during the course of the investigations, evidence was acquired illegally, regardless of whether said evidence was used or admitted in court, regardless of whether it lead to a chain of discovering evidence, then those cops would share the same sentence as the defendant. You want to lie to get that murder conviction, you can get the death sentence too.

  11. Thats kinda crazy when you think about it.

  12. I find it more than troubling that, per this story, some jurisdictions have so many outstanding warrants, and tend to use “checking for warrants” on random “contacts” for nothing in particular as an excuse to not deal with the warrants outstanding, hoping that, in randomly checking for them, they’ll happen to hook some major “crimes” and reel in those bigger fish… fish they never could have caught with legal bait.

    In such cases, with no legal justification for the stop, when a warranted subject is discovered, I’d say let him be searched as a safety precaution, (having a guy with a handgun in his back pocket riding in the back seat of the patrol car mightn’t be such a great plan at least some of the time…) but ANYTHING found in that search can have no part, or cannot lead to, charging with anything beyond the outstanding warrant. Thus, hauling him in on the warrant would be fine, but NOTHING else could be cause for any action. Though if he IS found with something illegal, that can be zeized, but no charges laid in result of the discovery. In short, things would work out to be very close to what would happen if they’d go knocking up his door at home and find him there in his night robem no pockets in which to have anything. They got him on the warrant, that’s all they get. Seems the flimsy excuse of outstanding warrants is abused as bait for far more serious issues. End that game, quicklh.

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