Ghosts of Ferguson, Mo., Don't Scare High Court

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By Alisa Johnson

June 20— An officer's lack of reasonable suspicion to stop a pedestrian doesn't taint evidence gained in a search conducted after the officer has discovered that the person has a valid arrest warrant, the U.S. Supreme Court held June 20 ( Utah v. Strieff, 2016 BL 195654, U.S., No. 14–1373, 6/20/16 ).

The decision garnered strong reactions. Michael B. Kimberly, a partner in the Supreme Court and appellate practice of Mayer Brown LLP in Washington, described the decision as “another step toward complete marginalization of the exclusionary rule.”

On the other hand, Kent Scheidegger, legal director and general counsel for amicus Criminal Justice Legal Foundation, characterized the case as “another significant step in the right direction of allowing the jury to consider all reliable evidence.”

The court said the evidence seized incident to Edward Joseph Strieff Jr.'s arrest is admissible based on an application of the attenuation factors from Brown v. Illinois, 422 U.S. 590 (U.S. 1975).

Under the attenuation doctrine, evidence “is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance,” the court noted.

In this case, the court said that in the absence of “flagrant police misconduct,” the arresting officer's discovery of an outstanding arrest warrant “attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

Initial Stop Unlawful

A police officer stopped the defendant after he walked out of a residence suspected of being involved in drug activity. The officer had noticed a number of visitors enter the house and leave after a suspiciously short time. The defendant, however, had not been seen to enter the residence so the officer didn't know whether he lived there or how long he had been inside.

During the stop, the officer ran the defendant's identification and discovered an outstanding arrest warrant. A search incident to the execution of the warrant turned up drugs and paraphernalia used to convict the defendant.

The state conceded that the initial stop of the defendant did not meet the standard required for an investigative detention under Terry v. Ohio, 392 U.S. 1 (U.S. 1968).

Post-Ferguson Concerns Discounted

In an opinion by Justice Clarence Thomas, the majority held that even in the absence of reasonable suspicion, the evidence was saved by the attenuation doctrine, with the intervening circumstance being the discovery of a “valid, pre-existing, and untainted arrest warrant.”

The court said that the attenuation doctrine is not limited to intervening acts committed by the defendant. On the contrary, it said, the doctrine applies here, where the intervening circumstance is the discovery of the valid warrant.

The court pointed to three factors articulated in Brown. It said the first factor, the temporal proximity between the initially unlawful stop and the search, favors suppression. However, the second factor, the presence of intervening circumstances, “strongly favors the state.”

It said the third factor, “the purpose and flagrancy of the official misconduct,” also “strongly favors the state.” The court said the arresting officer was “at most negligent.”

It added that after the unlawful stop, the officer's conduct was lawful, “and there is no indication that the stop was part of any systemic or recurrent police misconduct.” It characterized the officer's actions as being motivated “not to conduct a suspicionless fishing expedition” but instead “to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs.”

Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer and Samuel A. Alito Jr. joined Thomas's opinion.

Same Planet, Different Worlds

During oral argument, the issues brought out stark differences in the perspectives of the justices regarding encounters between police and citizens (98 CrL 475, 2/24/16). These differences are reflected in the dissenting opinions as well as the reactions from experts in the field.

Although the case has no racial component, looming large in the minds of Justices Sonia Sotomayor and Elena Kagan was the shadow of recent revelations about discriminatory law enforcement in Ferguson, Mo. A Department of Justice report found direct and “substantial” evidence of “racial bias and stereotyping” by both police and court officials in that town, which led to disproportionate issuance of traffic citations and uses of police force against black drivers (96 CrL 631, 3/11/15).

Sotomayor said, “Do not be soothed by the opinion's technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

She added: “Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death' of discrimination by employers, landlords, and whoever else conducts a background check.”

In a portion of the opinion joined by Justice Ruth Bader Ginsburg, Sotomayor pointed out that the defendant was stopped only because he “happened to be the first person” to walk out of a suspected drug house. Rather than being an intervening circumstances, the warrant check and its fruit were part and parcel of an “expedition for evidence,” she said.

After this decision, she said, the law is now that “the mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.” She also said the “most striking” aspect of the majority's decision is its insistence that the situation is isolated and unusual. On the contrary, Sotomayor said, unpaid traffic tickets regularly lead to the issuance of arrest warrants.

Kagan, also joined by Ginsburg, said that given the “staggering number” of outstanding warrants for millions of people in large cities, the discovery of a warrant is a “run-of-the-mill result” of a police stop and “nothing like what intervening circumstances are supposed to be.” She said that California alone has 2.5 million outstanding arrest warrants, which equals around 9 percent of its adult population.

The majority decision “practically invites” the police to stop without reasonable suspicion, she said.

Strong Reactions

Kimberly told Bloomberg BNA that “the court did not seriously consider how its ruling will encourage officers to make illegal stops, in hopes (and with the expectation) of turning up unpaid parking tickets.”

Echoing Sotomayor, he noted that “this is not an isolated case—a warrant check is a feature of virtually every police stop, and outstanding warrants are astoundingly common.” Kimberly participated in an amicus brief for the American Civil Liberties Union and the National Association of Criminal Defense Laywers.

Joan C. Watt, Salt Lake City, who argued for the defendant, said the decision is “a blow to our right to be free from police interference” that “presents serious consequences for us all.”

Scheidegger said that “complaints about police search practices should be a separate matter, and they have no proper place in the criminal trial unless they affect the reliability of the evidence.”

To contact the reporter on this story: Alisa Johnson in Washington at

To contact the editor responsible for this story: C. Reilly Larson at

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