Gyroscopic Investing

The Supreme Court issued an extraordinarily disappointing 5–3 decision on Monday in Utah v. Strieff, a Fourth Amendment case about police searches. Yet the terrible ruling came with a bright spot: In a powerful and groundbreaking dissent, Justice Sonia Sotomayor lambasted the majority for its heartless and illogical rejection of Fourth Amendment freedoms, invoking the Justice Department’s Ferguson report, echoing Black Lives Matter, and even citing Ta-Nehisi Coates.

Strieff itself involves a fairly simple question of constitutional law. Typically, when police illegally stop an individual on the street without reasonable suspicion, any fruits of that stop—such as the discovery of illegal drugs—must be suppressed in court, because the stop was “unreasonable seizure” under the Fourth Amendment. Strieff gave the justices an opportunity to affirm this constitutional rule. But instead, Justice Stephen Breyer joined the court’s four conservatives to add a huge loophole to that long-established doctrine. In an opinion by Justice Clarence Thomas, the court found that if an officer illegally stops an individual then discovers an arrest warrant—even for an incredibly minor crime, like a traffic violation—the stop is legitimized, and any evidence seized can be used in court. The only restriction is when an officer engages in “flagrant police misconduct,” which the decision declines to define.

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This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens. Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more.

The indignity of the stop is not limited to an officer telling you that you look like a criminal. … If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.”

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” 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. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” 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. 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.

One of the many exceptions to the exclusionary rule—the attenuation exception— was of central importance in Strieff. This exception applies when the connection between unlawful police conduct and the discovery of the evidence sought to be introduced at trial is sufficiently remote or has been interrupted by some intervening circumstance. As Professor Orin Kerr notes, the Court has long relied on a totality-of-the-circumstances approach in evaluating whether the attenuation exception applies, stressing that the protection of the Fourth Amendment cannot turn on a “talismanic test.” The Utah Supreme Court concluded that the exception did not apply in Strieff because there was no intervening circumstance “so distinct from the threshold Fourth Amendment violation that it can be said that the challenged evidence is not a product of ‘exploitation’ of the illegality.” Thus, it excluded the methamphetamine and drug paraphernalia obtained through Fackrell’s search of Strieff.

The Supreme Court reversed. Writing for the Court, Justice Clarence Thomas relied upon a novel and decidedly talismanic test drawn from three factors considered in the case of Brown v. Illinois. The factors included (1) the temporal proximity between the rights-violation and the discovery of evidence; (2) the presence of an intervening circumstance; and (3) the purposefulness and flagrancy of the official misconduct. While Thomas conceded that the first of these three factors favored Strieff, he reasoned that the second and the third favored the government and thus ultimately concluded that exclusion was unwarranted. Specifically, he determined that the discovery of a warrant was an “intervening circumstance” because it “predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop,” and that, far from being “purposeful or flagrant,” Fackrell’s misconduct was “at most negligent.” He dismissed the possibility that Fackrell’s misconduct was part of “any systemic or recurrent police misconduct,” describing it instead as an “isolated instance.”

As Justice Elena Kagan detailed in a thoughtful and persuasive dissent, the majority’s analysis was insensitive to the underlying facts. “Far from Barney Fife-type mishap,” wrote Kagan, “Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality.” She noted that “Fackrell acknowledged that the stop was designed for investigatory purposes” and that “he had no basis for his action except that Strieff ‘was coming out of the house.’” Further, she observed that Fackrell’s “intervening” discovery of an arrest warrant “was an eminently foreseeable consequence of stopping Strieff”— Fackrell had actually testified that “checking for outstanding warrants during a stop is the ‘normal’ practice of South Salt Lake City police,” which is unsurprising given that (as Kagan pointed out) there are a “staggering number of such warrants on the books” for even the most minor of offenses. (For example, missed payments on traffic tickets.) That is to say, Fackrell’s misconduct was temporally proximate to his discovery of evidence; he deliberately sought to do what the Fourth Amendment forbids him from doing; and he had good reason to believe that the “intervening circumstance” (the discovery of a valid warrant) would take place if he performed the stop. All three factors in the majority’s test favored Strieff rather than the government.

http://www.fed-soc.org/blog/detail/utah ... lice-power

dragoncar wrote:"if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future."

Well, yeah. This is a bad thing?

MachineGhost wrote:

dragoncar wrote:"if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future."

Well, yeah. This is a bad thing?

Over a traffic ticket or other minorly revenue generators?

dragoncar wrote:Of course, you think people should be able to skip their court dates because they don't like the charges?

MachineGhost wrote:

dragoncar wrote:Of course, you think people should be able to skip their court dates because they don't like the charges?

My point is B.S. minor "crimes" like traffic tickets are an abuse of justice but not for JUST-US.