Utah v. Strieff (United States Supreme Court): The Supreme Court Further Restricts the Reach of the Exclusionary Rule

by Jack E. Call, Professor of Criminal Justice, Radford University, E-mail: jcall@radford.edu

                On June 20, 2016, the Supreme Court decided an important case dealing with the exclusionary rule.  The Court’s 5-3 decision is important both for its practical impact and its conceptual implications.  There was also a passionate and controversial dissenting opinion that has already generated a good deal of discussion and is likely to inspire more.[1]

                Let’s begin with a discussion of the opinion itself.  The case began with an anonymous tip to the drug-tip line of the South Salt Lake City (Utah) police that considerable drug activity was taking place at a particular residence.  A South Salt Lake City detective, Officer Fackrell, observed the house for about three hours over a week’s time.  According to the opinion of the Utah Supreme Court in this case, while Officer Fackrell did observe some people enter the house (the actual number is never specified in any of the judicial opinions in the case) and stay a short time before leaving again, the traffic observed by Fackrell was not “terribly frequent.”  Nevertheless, Officer Fackrell was suspicious about the possibility of drug activity in the residence, so he decided that he would approach the next person to leave the residence.

                That person was the defendant in this case, Edward Strieff.  Officer Fackrell did not observe Strieff enter the home, so he could not say whether Strieff was a short term visitor.  He followed Strieff to a convenience store, pulled alongside Strieff’s car, approached him, asked him to identify himself, and ran a warrants check on Strieff after he produced identification.  The warrants check revealed that there was an outstanding “small traffic warrant” out for Strieff.  Based on that warrant, Officer Fackrell arrested Strieff and searched him.  That search revealed the presence of methamphetamine in Strieff’s possession.

                The government in this case conceded that Officer Strieff lacked reasonable suspicion to stop Strieff initially.  The issue was whether discovery of the outstanding warrant nevertheless permitted the arrest and search of Strieff.  More particularly, the issue was whether discovery of the outstanding warrant was an intervening cause that broke the connection between the illegal detention of Strieff and the discovery of the methamphetamine under the attenuation exception to the fruit of the poisonous tree doctrine, described below.

                For at least a hundred years, in federal criminal cases the U.S. Supreme Court has been suppressing evidence obtained by law enforcement officers in violation of the 4th Amendment.[2]  The landmark case of Mapp v. Ohio in 1961 required the states to apply this exclusionary rule to violations of the 4th Amendment in state criminal cases as well.[3]  The basic reasons for this rule are to encourage the police to educate themselves about the meaning of the 4th Amendment and to follow those rules by depriving them of the benefit of evidence they obtain in violation of constitutional rules.  In order to obtain the full deterrent effect of the exclusionary rule, the Court has also held that not only evidence obtained directly as a result of unconstitutional behavior must be excluded, but additional evidence derived from that unconstitutionally obtained evidence must also be excluded (the so-called “fruit of the poisonous tree” doctrine).

                However, the Court has also recognized three exceptions to the fruit of the poisonous tree doctrine.  The common denominator with each of these exceptions is that it is fair to say that the police were no longer exploiting the evidence they had obtained directly in violation of the Constitution.  The first exception is called the independent source exception.  If the government can demonstrate that the police had a source of information about the existence and location of evidence obtained unconstitutionally that was independent of their unconstitutional actions, the evidence is admissible.  For example, assume that the police search a home in violation of the 4th Amendment and find a diary that tells the police the location of the weapon used in a murder case that they are investigating.  The fruit of the poisonous tree doctrine holds that both the diary and the weapon are inadmissible.  However, if a witness came forward before the police obtained the weapon and informed the police as to the weapon’s location, the weapon would be admissible because the police knew its location from an independent source unrelated to their unconstitutional behavior.

                The second exception, the inevitable discovery exception, is similar to the independent source exception.  It provides that if the government can show that it would have discovered the tainted evidence even if they had not engaged in their unconstitutional behavior, the evidence is admissible.  For example, in Nix v. Williams,[4] the police had learned the location of a murder victim’s body as a result of an unconstitutional interrogation of the suspect.  The Supreme Court ruled that evidence relating to the body was admissible because of testimony that the police were planning to search the area where the body was located, and they would have found the body two or three days later even if they had not interrogated the suspect unconstitutionally.

                The third exception to the fruit of the poisonous tree doctrine is called the attenuation or purged taint exception.  Under this exception, derivative evidence is admissible if some intervening circumstances occur that break the connection between the police’s unconstitutional behavior and evidence later discovered through the apparent use of the earlier unconstitutionally-obtained evidence.  In this situation, the Court has said that the intervening circumstances act to purge the derivative evidence of the taint imposed by the initially unconstitutionally-obtained evidence (the “poisonous tree”).  For example, in Wong Sun v. U.S.,[5] the police had arrested Wong Sun unconstitutionally.  He was released from police custody.  A few days later, he came to the police station on his own, was advised of his right to remain silent, and confessed to the police.  The Court held that the confession was admissible, even though arguably the police would not have obtained it if they had not arrested Wong Sun unconstitutionally, because Wong Sun’s unilateral decision to come to the police station where he was advised of his rights broke the connection between the unconstitutional arrest and the confession to a sufficient degree that it was fair to say that the police were not exploiting their illegal arrest when Wong Sun confessed.

                It is this latter attenuation exception that was at issue in Strieff.  Did the discovery of the outstanding warrant by Officer Fackrell purge his search of Strieff of the taint of the illegal stop of Strieff without reasonable suspicion?  Justice Thomas, writing the Court’s opinion, and four other Justices concluded that it did. 

                In evaluating the attenuation exception, Justice Thomas relied on three factors articulated by the Court in its decision in Brown v. Illinois:[6]  1) the “temporal proximity” between the unconstitutional actions of the police and the subsequently-obtained evidence; 2) the presence of any intervening circumstances, and 3) the purpose and flagrancy of the initial unconstitutional behavior by the police.  According to Justice Thomas, the first factor works against the government because the search of Strieff occurred soon after the unlawful stop. 

However, the second factor, according to Thomas, works in favor of the government.  In support of this conclusion, the Court cites Segura v. U.S.[7]  In that case, the police had entered a residence unconstitutionally and remained there while a search warrant was obtained.  While conducting a security check (as efforts to obtain a search warrant were underway), the police found evidence of drug activity.  The Court admitted the evidence found during the security check.  The Court conceded that Segura was an independent source case (because the probable cause to search and the warrant were independent of the unconstitutional entry of the residence) – not an attenuation case – but concluded nevertheless that the critical similarity between Segura and the present case is that the unconstitutional police behavior “did not contribute in any way to discovery of the evidence seized” (under the warrant in Segura; under the search incident to an arrest based on a warrant in Strieff).  “In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop.”

The third factor – purpose and flagrancy of the police misconduct – also works in favor of the government.  The Court characterized Officer Fackrell’s behavior as “at most negligent”:

In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so.   

Of course, how to weigh the three Brown factors is extremely unclear.  However, in this case, the Court concluded that

the evidence discovered on Strieff's person was admissible because the unlawful stop was sufficiently attenuated by the pre-existing arrest warrant. Although the illegal stop was close in time to Strieff's arrest, that consideration is outweighed by two factors supporting the State. The outstanding arrest warrant for Strieff's arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell's illegal stop reflected flagrantly unlawful police misconduct.

Justice Kagan wrote a dissenting opinion (joined by Justice Ginsburg).  Not surprisingly, she agreed with the majority’s analysis of the “temporal proximity” factor, so the big issues for her were the Court’s analysis of the other two Brown factors.  As to the “purpose/flagrancy” factor, Justice Kagan rejected the majority’s assertion that Officer Fackrell’s actions constituted merely a “couple of innocent ‘mistakes.’”  On the contrary, she characterized the officer’s seizure of Strieff as “a calculated decision, taken with so little justification that the State has never tried to defend its legality.”

Justice Kagan also takes issue with the notion that discovery of the outstanding warrant against Strieff was an intervening circumstance that broke the connection between his illegal detention of Strieff and the search that ensued after Strieff was arrested on the outstanding warrant.  Instead, she viewed discovery of the warrant as “an eminently foreseeable consequence of stopping Strieff.”  Officer Fackrell testified that running a check for outstanding warrants is the normal practice in South Salt Lake City.  (And it seems fair to assume that South Salt Lake City is not an outlier in this regard).  Given the huge number of outstanding warrants in the nation’s computerized criminal information systems, there is a good chance that any stop of an individual will turn up an outstanding warrant.

Justice Sotomayor wrote a separate dissenting opinion (also joined in large part by Justice Ginsburg) that is already attracting a good deal of attention.  In most respects, her criticisms of the majority opinion are similar to Justice Kagan’s.  However, in support of the criticism of the majority’s conclusion that discovery of the outstanding warrant was an intervening circumstance unconnected to the illegal stop of Strieff, Justice Sotomayor cited extensive statistics to demonstrate just how common outstanding warrants are.  For example, she cited a recent Bureau of Justice Statistics report that federal and state criminal databases listed nearly eight million outstanding arrest warrants, most of which are for minor offenses.  Utah’s database listed more than 180,000 misdemeanor warrants in its database.

The most controversial part of Justice Sotomayor’s opinion is undoubtedly its closing section, the only part of the opinion that Justice Ginsburg did not join.[8]  She begins the section by indicating that she is writing only for herself and is “drawing on my professional experiences.”[9]  After describing in some detail the indignity associated with a police stop, she suggests that, while the person stopped in this case was white, “it is no secret that people of color are disproportionate victims of this type of scrutiny.”  She mentions “the talk” that parents of color give their children, “instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger – all out of fear of how an officer with a gun will react to them.”  She concludes with comments that are sure to be quoted frequently in the future:

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.

We must not pretend that the countless people who are routinely targeted by police are "isolated." They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner's Canary 274-283 (2002). 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.

The practical implications of this decision are readily apparent.  As the dissenters suggest, this decision provides considerable “cover” for officers who make a good faith mistake in stopping someone, at least where an outstanding warrant for that person is discovered.

Another potential practical impact of the decision relates to language in the opinion suggesting that the Court may be very generous to the police in assessing whether reasonable suspicion to stop is present.  The Court indicates that, because Officer Fackrell did not know when Strieff entered the apartment and therefore did not know how long Strieff had been in the apartment, he “lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction.”  The implication of this comment seems to be that if Fackrell had known Strieff was a short-term visitor, he would have had reasonable suspicion to stop him.  This seems highly questionable.  Fackrell had only an anonymous report of drug activity at the apartment – a bare assertion of unknown reliability that his surveillance of the apartment had failed to confirm.  Even if Strieff was a short-term visitor, why would this provide reasonable suspicion to think he was involved in drug activity?  There are any number of reasons why a person might make a short visit to a residence.  The suspicion that Strieff was involved in drug activity would be based on only two things – an unsubstantiated report that the residence was a site of drug activity, and a short visit to the residence by Strieff.  If that constitutes reasonable suspicion to stop Strieff, then the police authority to stop persons against their will is exceedingly broad indeed.

The conceptual significance of the decision is less clear.  In recent years, the Court has demonstrated a considerable lack of enthusiasm for the exclusionary rule.  That trend became apparent in U.S. v. Leon in 1984,[10] when the Court ruled that evidence obtained by the police in reliance on a search warrant that lacked probable cause to support it was admissible in court.  The Court stressed that the police had done nothing wrong in that case; therefore, exclusion of the evidence would do nothing to change police behavior.[11]

The Court’s negative trend toward the exclusionary rule continued in 2006 in Hudson v. Michigan.[12]  In that case, a 5-person majority of the Court declined to exclude evidence obtained in violation of the knock-and-announce rule – a rule requiring the police to knock, announce their presence to search, and wait a reasonable period of time before entering a home without consent.  The Court explained that

[s]uppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs,”… which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it,… and “have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application”… We have rejected “[i]ndiscriminate application” of the rule, and have held it to be applicable only “where its remedial objectives are thought most efficaciously served”-- that is,”‘where its deterrence benefits outweigh its 'substantial social costs' “.

The tone of the approach taken by the Court’s opinion in its discussion of the exclusionary rule was so negative that one of the Justices in the majority felt it necessary to assure the public in a concurring opinion that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”  But the Court’s decisions dealing with the exclusionary rule since then have not been reassuring to proponents of the exclusionary rule. 

Perhaps the most troubling of the recent exclusionary rule cases from the perspective of the rule’s advocates is Herring v. United States.[13]  The specific ruling in that case is less significant than some of the language used by the Court to explain it.  The Court held that evidence obtained by the police from a search of person arrested was admissible even though the warrant on which the arresting officer had relied was invalid.  This time it was the police who had made the error in question by failing to remove a withdrawn warrant from a computer database.

Writing for the Court, Chief Justice Roberts indicated that

The extent to which the exclusionary rule is justified by …. deterrence principles varies with the culpability of the law enforcement conduct…. Indeed, the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional.

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

The generally accepted view of the exclusionary rule prior to Herring was that evidence obtained by means of any violation of the Constitution by the police is excluded, whether the violation was intentional or unintentional.  The language above, however, suggests that if the unconstitutional behavior is simply negligent behavior (at least where it is not part of a pattern of negligent behavior), the exclusionary rule does not apply.  Some observers view this language as a de facto adoption by the Court of a full-blown, good faith exception to the exclusionary rule.[14]  Such a rule would permit introduction of all evidence obtained as a result of unconstitutional behavior by the police, so long as the police honestly and reasonably thought they were not violating the Constitution.

One way to view the Strieff decision is as a continuation of the Court’s narrowing application of the exclusionary rule.  It examined the scope of the attenuation exception to the fruit of the poisonous tree doctrine in a manner that was quite generous to the police, suggesting that the Court will view the attenuation exception – one of the most ambiguous 4th Amendment concepts – very broadly in the future.

However, proponents of the exclusionary rule might choose to take a more optimistic view of the decision (while still bemoaning the Court’s broad view of the attenuation exception).  If the Court did in fact adopt a full-blown, good faith exception to the exclusionary rule in Herring, why didn’t the Court apply that exception in this case?  Since the majority of the Court viewed Officer Fackrell’s unconstitutional stop of Strieff as “at most negligent,” why not end the analysis there?  Under this argument, if the officer was only negligent in stopping Strieff and if it was not unreasonable for Fackrell to think he had reasonable suspicion to stop Strieff then all evidence discovered after that should have been admissible – whether there was an outstanding warrant or not. 

That was not the way the Court decided the case, however.  The failure to decide the case on this basis does not necessarily mean that the Court has not adopted a full-blown, good faith exception to the exclusionary rule.  It is possible that the Court has done so, but it did not consider this case to be the best set of facts for clarifying the situation.  Or perhaps only some of the five Justices in the majority wanted to decide the case on the basis of a full-blown, good faith exception, but others did not. 

Sometimes we never learn about internal disagreements amongst the Justices, but when we do, it is almost always quite some time after the fact.  When we do learn about internal disagreements, it is usually because of notes taken by one or more of the Justices during the Justices’ discussion of the case at conference.  These notes typically are not available to researchers until after the death of the Justice who took the notes.  One of the things we have learned from those cases where internal disagreements have been documented by researchers is that the Court’s journey toward a consistent, coherent position on an issue is not always smooth and perfectly logical.  So Strieff does not provide a final answer to the Court’s position on the exclusionary rule. 

The upcoming presidential election could be of critical importance in this regard.  Many of the recent exclusionary rule cases have been decided by 5-4 conservative majorities.  The appointment of a liberal, or even moderate, Justice to replace the late Justice Scalia could easily move the Court’s view of the exclusionary rule in a different direction.

[1] For two thoughtful, immediate reactions to the decision by well-respected law professors see Orin Kerr, “Opinion Analysis: The Exclusionary Rule is Weakened But It Still Lives,” SCOTUSblog (Jun. 20, 2016, 9:35 PM), http://www.scotusblog.com/2016/06/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives/ and Kent Scheidegger, “Connecting the Good Faith Exception and the Attenuation Doctrine,” Crime and Consequences Blog (June 20, 2016, 2:29 PM), http://www.crimeandconsequences.com/cgi-bin/mt/mt-search.cgi?search=strieff&IncludeBlogs=1&limit=20.

[2] U.S. v. Weeks, 232 U.S. 383 (1914).

[3] 367 U.S. 643 (1961).

[4] 467 U.S. 431 (1984).

[5] 371 U.S. 471 (1963).

[6] 422 U.S. 590 (1975).

[7] 468 U.S. 796 (1984).

[8] It would be inappropriate to assume from Justice Ginsburg’s decision not to join this part of Justice Sotomayor’s opinion that she did so because she disagrees with the sentiments expressed in the opinion.  The decision might have been based on the highly personal nature of that section of the opinion.

[9] Sotomayor was a criminal prosecutor for four and a half years and a federal district court judge (where she presided over federal criminal trials) for five years.

[10] 468 U.S. 897 (1984).

[11] This case also made it clear that the only purpose for the exclusionary rule was to control police behavior and not to control the behavior of other government actors.

[12] 547 U.S. 586 (2006).

[13] 555 U.S. 135 (2009).

[14] See the debate on this question between H. Lee Harrell and Jack Call in The Virginia Police Legal Bulletin, Vol. 4, No. 1 (December 2009).