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 . . .