Seemingly Simple Police Stop Touches Raw Nerves

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By Alisa Johnson

Feb. 22 — A seemingly simple issue in front of the U.S Supreme Court at oral argument Feb. 22 involving a police stop prompted the justices to raise concerns about the emergence of a police state and Ferguson-style law enforcement nationwide.

If there is no deadlock, the justices will decide whether execution of a valid arrest warrant discovered during an unconstitutional seizure acts to purge the taint of the constitutional violation from evidence discovered during a search incident to the arrest on the warrant.

Breaking the Chain

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 (1968).

The state argued that the evidence was nonetheless admissible under the attenuation doctrine. The attenuation doctrine requires courts to look at “the totality of the circumstances,” which includes not only the existence of an intervening circumstance, but also the “temporal proximity” between the unlawful detention and the discovery of the evidence, and the “purpose and flagrancy of the official misconduct.”

In rejecting the state's argument, the Utah Supreme Court observed that “the lower courts are in disarray in their application of the attenuation doctrine to the outstanding warrant scenario” . It sorted rulings by courts in other states into two competing camps that widely differ as to how much weight they give the existence of an outstanding warrant in the taint analysis set out in Brown v. Illinois, 422 U.S. 590, 1975; and Wong Sun v. United States, 371 U.S. 471, 1963.

Joan C. Watt, Salt Lake City, who argued for the defendant, Edward Joseph Strieff Jr., said that in order to save the evidence, an intervening circumstance needs to be independent and break the causal chain between the illegal stop and the discovery of the warrant. “Because the warrants check is an inherent part of the detention, it's not an intervening circumstance,” Watt argued.

Arguing for the state, Utah Solicitor General Tyler R. Green, Salt Lake City, said the intervening circumstance here was the warrant—a “prior finding of probable cause by a neutral and detached magistrate on a crime completely unrelated to the facts at issue in this particular stop.”

Justice Sonia Sotomayor pointed out that finding drugs on a person during a stop provides probable cause to arrest, but the Fourth Amendment doesn't let the drugs come into evidence merely because it was a ground for the arrest. What matters is whether the evidence was lawfully obtained, she said. She added that she saw no difference between finding drugs during an unlawful stop and finding out about a warrant.

Green said the difference here is that the drugs were found during a lawful detention justified by the warrant.

Basis for Stop

Early on, Sotomayor asked Green to explain why the stop of the defendant was objectively reasonable. She said the officer admitted “that the person he saw coming out of the house in question wasn't doing anything. He didn't know that he lived there, he didn't know what he had done, if anything. He didn't even really know that there was drug dealing going on in the house. He was trying to figure that out.”

Green acknowledged a “miscalculation” by the officer, but added that it was a “close call.” Green said that the officer had received an anonymous tip that the house was involved with drugs and corroborated the tip through a week of observation.

Sotomayor, noting that the officer had no idea how long the defendant had been in the house, said she didn't see how this was “any different than stopping the first person you see.”

Justice Anthony M. Kennedy asked Green whether a court should consider a subjective component to the officer's decision to stop a person, “whether there was a purpose to see if there was a warrant.” Green responded that it would be inconsistent with “the way the court's Fourth Amendment jurisprudence has evolved.”

Kennedy agreed that it would be a step beyond the court's prior decisions, but he added that the alternative, to say that police have less of a justification to stop a person in a high-crime area where people are more likely to have warrants, would be “ very odd.” Kennedy said a “subjective purpose component might serve an important purpose here, so that a police officer can't just say, ‘I'm going to see if there's a warrant for this fellow. That's the reason I'm going to stop.' That seems to me quite wrong.”

Formulating ‘Flagrancy Safety Valve.'

John F. Bash, of the U.S. Solicitor General's Office, Washington, argued for the federal government as amicus curiae supporting Utah. He suggested that the way the court “could formulate the flagrancy safety valve in this case is to say does this stop appear objectively designed to exploit the ability to search incident to arrest on a warrant.”

Justice Ruth Bader Ginsburg pointed to a statement Green made in his reply brief that says, “the Fourth Amendment does not require officers to have reasonable suspicion before they check for warrants.” If that's true, Ginsburg said, “then any officer can say, what's your name, I'll check you for a warrant.” Green agreed, but said that didn't happen here.

Justice Elena Kagan pointed out that “most Terry stops do not happen in most neighborhoods. Most Terry stops happen in very high-crime neighborhoods appropriately, but where people have lots of arrest warrants.” She wondered “why doesn't that dramatically change the incentives for police officers in deciding whether to search somebody? If you know that there is a significant possibility that somebody you stop is going to have an arrest warrant, that's another reason to stop them.”

Sotomayor suggested that to defend the stop of the defendant is to say in effect “we no longer have reasonable suspicion at all.”

Ferguson's Shadow

Although this case has no racial component, looming large in the minds of some of the justices, especially Sotomayor and 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 .

The police regularly violated the Fourth Amendment by conducting stops without reasonable suspicion, making arrests without probable cause and using excessive force, the report said. The report also indicated that the Ferguson municipal court demonstrated a pattern of violating the 14th Amendment's due process and equal protection requirements by imposing “substantial and unnecessary barriers” to challenging or resolving violations, including “unduly harsh penalties.”

The report found that the Ferguson court operated “not with the primary goal of administering justice or protecting the rights of the accused, but of maximizing revenue” through the imposition of fines for minor offenses.

Watt told the court that allowing admission of the evidence in this case would create an incentive for police to conduct random stops. She said the concern is not just for Strieff but for “all of those innocent citizens walking around that are stopped, that a warrants check is run and nothing comes up and then they're sent on their way.” Such cases escape any scrutiny or oversight, she said, and “the officer is encouraged to engage in a catch and release type of approach with our citizenry.”

Looming Police State?

During the argument Justice Samuel A. Alito Jr. asked whether it was plausible that traffic court judges would “start issuing lots of warrants because they want to provide a basis for randomly stopping people.” Sotomayor pointed out that the issuance of an arrest warrant is automatic when a fine is not timely paid, and she chided Alito for not knowing that.

Chief Justice John G. Roberts Jr. then suggested that the automatic issuance of warrants makes it less likely that judges would issue warrants to facilitate the gathering of evidence from illegal stops. Watt responded that the incentive on the part of law enforcement is to put more people in a position where they face these fines and broaden the offenses and infractions for which nonpayment of fines leads to automatic warrants.

Kagan said that she was “staggered by the number of arrest warrants that are out on people” in “these very heavily policed areas.” For police working in certain areas, Kagan added, there's “a significant possibility that you're going to find an arrest warrant and be able to admit whatever drugs or guns or whatever it is you find.”

“What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”Justice Sonia Sotomayor

Sotomayor said Green seemed to be urging the adoption of a rule that once the police learn a person's name, “if there's a warrant out on you, that's an attenuating circumstance under every circumstance.” She added, “what stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”

Sotomayor added that “if you have a town like Ferguson, where 80 percent of the minority residents have traffic warrants out, 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. And let me hope, because I have an 80 percent chance that you're going to have a warrant.”

Green protested that a warrant by itself is not sufficient to justify admission of the evidence when the attenuation doctrine also requires a separate inquiry into whether the stop was flagrant. Kagan, seemingly unconvinced, added that “it does change your incentives quite dramatically, it seems to me, if you're policing a community where there is some significant percentage of people who have arrest warrants.”

Ginsburg addressed Green's argument that, reasonable suspicion or not, a person's name is not suppressible, and evidence derived from just knowing the name is not suppressible. “If you're right about that,” Ginsbsurg said, “then the police could stop anyone and say, whether I have reasonable suspicion or not, I want to know your name, and that's not suppressible.” Then the officer does the “warrant check, which you say is intervening circumstance. So it seems that your argument is arming the police with asking every person what is your name and doing a warrant check.”

Bash attempted to distinguish the situation in Ferguson by emphasizing the DOJ's finding that the municipal court was in cahoots with the police to use arrest warrants as a revenue-raising measure. He added that finding for the defendant in this case wouldn't prevent such tactics.

Officer Safety

Roberts seemed skeptical that “every time a police officer pulls somebody over and runs a warrant check, it's because he thinks it's likely there's a warrant.” Roberts suggested that the check might be to protect the officer when he walks up to the car. “He'd like to know that the person is wanted for murder, right?”

He later said it would be “bad police work to not run the warrant check until after you've had an interaction with the person.” Watt responded that the point is that the officer had no reasonable suspicion to interact with the defendant.

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

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

For More Information

Argument transcript at

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