Constitutional Brief: SCOTUS Condones Illegal Searches and Seizures

In a 5-3 decision Monday, the U.S. Supreme Court held that evidence seized after a search incident to arrest could be used to convict an individual, even though the initial stop was unlawful.

South Salt Lake City, Utah’s police department received an anonymous tip that drug activity was occurring at a particular residence.  Narcotics detective Douglas Fackrell was dispatched to investigate, and observed the residence at various times over the course of a week.  It became Officer Fackrell’s opinion that drug deals were occurring at the residence, as he observed frequent visitors staying for only a few minutes at a time.

During the stop in question, Fackrell observed Edward Strieff leave the house and walk to a nearby convenience store.  Fackrell had not observed Strieff enter the house, however, and so had no idea if Strieff was one of the short-term visitors Fackrell believed was involved in drug deals, or not.  Fackrell stopped Strieff in the convenience store parking lot and demanded his identification, which he provided, and asked him a few questions about his visit at the house.  Fackrell then ran Strieff’s information, discovered that he had a warrant, and subsequently arrested him, conducting a search of his person at the time of the arrest.

The courts in Utah were conflicted on the admissibility of the evidence, since the State conceded that the initial stop of Strieff was unlawful, as there was no reasonable suspicion that Strieff was engaged in criminal activity (in order to establish that, Officer Fackrell would have had to know how long Strieff was in the house; merely being present in a place where past or future criminal activity has or will take place is not reasonable suspicion under the law).  To clarify the law, the Supreme Court granted cert to hear the case.

The Court analyzed the relevant precedents, concluding that the “attenuation doctrine” was the relevant analysis here.  That doctrine holds that where the connection between the unconstitutional conduct and the evidence is too attenuated, the evidence should not be suppressed.  Intervening circumstances can contribute to that attenuation.

Here, the Court found that the discovery of the warrant requiring Strieff’s arrest constituted an intervening circumstance, and so the search incident to the arrest was a valid search.  A search incident to arrest has long been held to be a valid search, so long as the arrest is valid.  The Court did not seem particularly concerned that the warrant was only discovered as a direct result of the illegal stop (and therefore quite connected to the illegal stop).  Rather, the Court viewed the warrant as correcting the illegality of the stop and, essentially, creating an entirely new basis for a new, lawful stop.

In addition to the connection between the unconstitutional stop and the evidence seized, the Court looked to see whether Officer Fackrell’s actions were “purposeful and flagrant.”  His actions were “at most negligent,” according to the court.  While he did not have reasonable suspicion based on his observations and, as such, could not have demanded Strieff speak with him, the Court excused the admittedly unlawful stop.  “While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful.”  The warrant check was, according to the Court, simply precautionary for “officer safety.”  And because Fackrell’s actions were not “purposeful and flagrant,” the evidence found at the stop – illegal though it may have been – should not be suppressed.

The Court thus appears to be taking a “no harm, no foul” approach to the Constitutional protections of the 4th Amendment.  Because Officer Fackrell acted unlawfully “in good faith” all the way up to the point at which he began acting lawfully, his unlawful mistakes should be ignored.  And because a warrant already existed, Strieff essentially should have been arrested anyways.

What the Court conveniently dismisses, however, is that 4th Amendment was written and ratified precisely to protect against this type of unreasonable (read: illegal) search and seizure.  The 4th Amendment was a direct response to the British Writ of Assistance, or general warrant, which allowed searches of property in order to determine whether cause existed to bring charges.  In short, the Writ of Assistance was a legitimized government fishing expedition and the 4th Amendment was a direct prohibition of that.

Here, however, the Court has seemingly condoned the same practice.  While the Court briefly addressed the fishing expedition argument, it just as briefly dismissed it.  And while Officer Fackrell may, indeed, have been sincere in his desire to question Strieff solely on the activities of the house, the end result was that a warrant check was conducted on an individual solely based on an unlawful stop.  Had Officer Fackrell not illegally detained Strieff, he would not have conducted the warrant check and thus would not have arrested him and conducted the search.  (Also of note: the Court found that the warrant check was conducted for “officer safety,” despite the fact that there is no mention of any resistance or violence on Strieff’s part).

In short, Justices Thomas, Kennedy, Alito, Breyer, and Chief Justice Roberts chose to penalize Edward Strieff for his ignorance of judicial interpretation of the 4th Amendment, rather than the detective who actually violated Strieff’s rights.  Officer Fackrell admittedly made mistakes and violated Strieff’s 4th Amendment rights.  Strieff’s mistake, according to the Court, was in listening to Fackrell’s demands.  One wonders how the incident may have played out had Strieff followed the Court’s advice and ignored Fackrell’s demands.

At the end of the day, the Court chose to side with a narcotics detective who, though supposedly trained in the basic precepts of the 4th Amendment, made several basic mistakes.  Those mistakes led to the unlawful seizure of an American citizen, which ultimately led to the incarceration of that individual.

The constitutional rights of the individual are not contingent upon the good faith of the government or its agents.  They are inherent to in the individual. Whether the violation of the rights were mistaken or purposeful does not make the right any less violated.  While that may matter when determining whether to penalize the violator, it should not matter at all in determining whether the individual’s right have been violated.

In this instance, the correct remedy was to suppress the evidence unlawfully seized (whether to find civil liability with Officer Fackrell would be an entirely different case).  In failing to suppress the evidence, the Supreme Court has essentially told the citizens of the United States that they have no 4th Amendment protections, so long as the police officer thought he was acting according to the law.  At least until the next case . . .


Constitutional Brief: Eighth Circuit Continues Erosion of Fourth Amendment Privacy Rights

In United States v. DE L’Isle, No. 15-1316 (8th Cir., June 8, 2016), the federal appeals court for a large portion of the mid-west ruled that an individual has no right to privacy in the information contained on the credit card strip or on the face of the card.

Eric-Arnaud DE L’Isle was pulled over by a Nebraska police officer in 2014 for following too closely to a semi.  The officer stated he smelled marijuana in the car and conducted a canine search, which indicated the presence of controlled substances.  The subsequent search produced no drugs, but the officers did find a duffel bag containing “a large stack of credit, debit, and gift cards” in the trunk.  Only about 1/5 of the cards had DE L’Isle’s name on the front.  The cards were seized at the stop and then scanned by the U.S. Secret Service, which discovered that the magnetic strips on the cards were either blank or contained American Express account information.  Needless to say, none of the information on the magnetic strips was associated with any legitimate account of Eric DE L’Isle.

According to testimony from fraud investigators and U.S. Secret Service agents, the magnetic strip on the back of a credit, debit, or gift card contains up to three lines of information.  The first two are omnipresent and consist of the account number, expiration date, and cardholder’s name.  The third line is discretionary based on the issuing entity, but can contain a particular identifier.

DE L’Isle argued that the search of the strip constituted an invasion of his 4th Amendment right against the unreasonable search or search of his personal papers and effects.  Under existing federal and Supreme Court precedent, this type of claim (contesting whether the search was reasonable) rests on a person’s actual expectation of privacy and on society’s expectation of privacy in the particular situation.  In this case, DE L’Isle would need to show that he actually expected his credit card strip information to be private and that society had the same expectation.

The Court expressly rejected his claim that he had an actual expectation of privacy.

Mr. DE L’Isle “could not have had a subjective expectation of privacy in any of the . . . cards because the purpose of a credit card, debit, or gift card is to enable the holder of the card to make purchases, and to accomplish this, the holder must transfer information from the card to the seller, which negates an expressed privacy interest.”  Thus, the user of the card “knowingly discloses the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”

Mr. DE L’Isle’s subjective expectation was irrelevant, however, as the 8th Circuit panel found that “this alleged privacy interest is not one society is prepared to endorse.”  In a rather broad definition of what is considered to be public, the court found that “any member of the public may see” the information on an individual’s credit card, so the information was therefore considered to be public.  (The dissent in the case focused on factual issues, rather than the general privacy issues).

While no one should have any particular sympathy for an individual who was, according to the evidence, clearly intending to engage in a substantial amount of identity theft and credit card fraud.  Simply stated, Mr. DE L’Isle belongs in jail.  The problem arises in how he ended up there and the implications for individual rights that the court’s needlessly broad analysis casts.

The courts (the 8th Circuit here is only the latest example) have fundamentally misunderstood the 4th Amendment.  The protections of the 4th Amendment apply solely to the government (we have criminal statutes to prosecute violations of privacy from individuals against other individuals).  Thus, it is entirely irrelevant to a proper 4th Amendment analysis that DE L’Isle offered the information on the card to a merchant.  The information on a credit card is inherently private and, generally speaking, individuals only offer that information to a select group of other private entities: merchants and financial institutions who are prohibited from releasing the information to the general public.

Indeed, the crime DE L’Isle is accused of is stealing other individuals’ information.  If there is no privacy interest in this “public” information, then what, precisely, is the criminal behavior DE L’Isle was prosecuted for and convicted of?  At the time of the search, there was no indication that DE L’Isle actually used the cards or stole any money – he was merely in possession of what the courts apparently view as public information.  The government’s criminal charges belie its arguments before the 8th Circuit.

Despite the 8th Circuit’s ruling, credit card information is private information.  Entire industries exist to protect that information from other individuals, much less the forcible seizure of that information by the government.  Class action lawsuits have been initiated against major companies for negligent handling of information that resulted in hacking.  To say that credit card information – even “just” the account numbers – is flawed, to say the least.

Thus, not only did DE L’Isle demonstrate an intent to keep the information private (he kept the cards in a duffel bag and/or wallet to keep them from the view of the general public – and police), but society does, quite obviously, expect credit card accounts, expiration dates, the connected names, and particular identifiers to be kept private.

The courts’ rulings on this issue have been frightening and dangerous, to say the least.  An individual’s release of private, personal information to another individual does not, by any stretch of common language or common sense, indicate any intention to make that information public.  The court’s interpretation means that any disclosure – to anyone – of information is no longer considered private and, as such, is subject to search by the government without a warrant.  This is not hyperbole, but the language of the court: DE L’Isle “knowingly disclose[d] the information on the magnetic strip . . . to a third party and cannot claim a reasonable expectation of privacy in it.”

Simply stated, the courts have been on a dangerous trend that dismissed the need for a warrant where it is evident that a warrant would likely have been issued.

This case is a prime example: large numbers of credit cards without the individual’s name on them stored in a duffel bag in the truck almost guarantee the probable cause needed to obtain a warrant to both seize and search everything in that car, much less the particular cards and their information.  Law enforcement only needed to apply for the warrant and there was no exigency demanding immediate action: DE L’Isle was in custody and therefore not putting any more charges on the cards.  Knowing the information on the card several hours sooner would not particularly help the victims, either.

The purpose of the exclusionary rule (suppressing illegally obtained evidence) is to discourage law enforcement from obtaining evidence improperly.  If the police and prosecutors are confident that their convictions will be overturned when the evidence is improperly gathered, the theory is that they will be more constitutionally careful.  Conversely, when law enforcement is comfortable that the court is more interested in upholding convictions it believes are worthy than upholding the Constitution, then they will be less inclined to be concerned about the procedural safeguards offered by the Constitution.

This case is a perfect example of the latter: DE L’Isle was probably engaging in counterfeit.  However, the evidence used to convict – the information gathered on the magnetic strips was not DE L’Isle’s – was not properly obtained, even though law enforcement easily could have obtained a warrant once they had possession of the cards (which was almost certainly obtained lawfully, at least according to the facts as outlined here).  At the end of the day, the courts here chose to uphold a particular conviction, rather than the Constitution.

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