On Monday, June 20th 2016, the Supreme Court released a Fourth Amendment-related ruling on the admissibility of evidence obtained via unwarranted stops. The ruling has resulted in outrage both inside and outside the Supreme Court chambers. So, we sat down with the Court’s ruling and Justice Sonia Sotomayor’s dissenting opinion and asked a few questions.
What’s the verdict?
5-3 decision: Overturned.
What does that mean?
Police officers can make illegal stops and use this evidence in court if they then (subsequent to the stop) find out that there was a warrant out for the individual’s arrest.
Why is this important?
The Fourth Amendment isn’t so robust anymore.
Justice Thomas, what is your opinion on the ruling?
The evidence Officer Fackrell seized incident to Strieff’s arrest is admissible based on an application of the attenuation factors from Brown v. Illinois, 422 U. S. 590. In this case, there was no flagrant police misconduct. Therefore, Officer Fackrell’s discovery of a valid, pre-existing, and untainted arrest warrant attenuated the connection between the unconstitutional investigatory stop and the evidence seized incident to a lawful arrest.
Okay, got it. That makes sense—the officer didn’t do that much wrong in comparison with the defendant. An eye for an eye. But Justice Sotomayor—you disagree? Justice Sotomayor, is it not true that even though the initial stop was illegal, the ultimate outcome of the stop allowed the officer to catch the bad guy?
It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right. See Weeks v. United States, 232 U. S. 383, 392 (1914).
I know, I know, but still surely the court has decided before now that arresting someone with a warrant is more important than protecting a criminal’s privacy, right?
When “lawless police conduct” uncovers evidence of lawless civilian conduct, this Court has long required later criminal trials to exclude the illegally obtained evidence. Terry, 392 U. S., at 12; Mapp v. Ohio, 367 U. S. 643, 655 (1961).
So… you’re saying that even if I’m doing something wrong, I’m supposed to be protected until the police have an untainted warrant?
For example, if an officer breaks into a home and finds a forged check lying around, that check may not be used to prosecute the homeowner for bank fraud. We would describe the check as “‘fruit of the poisonous tree.’” Wong Sun v. United States, 371 U. S. 471,488 (1963).
Okay, so if the police collect evidence after stopping me without a warrant, then everything subsequent to the stop has been “tainted” by the illegal stop and therefore must be excluded from evidence—why is this important to me?
This “exclusionary rule” removes an incentive for officers to search us without proper justification. Terry, 392 U. S., at 12. […] When courts admit only lawfully obtained evidence, they encourage “those who formulate law enforcement polices, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.” Stone v. Powell, 428 U. S. 465, 492 (1976).
So basically what you’re saying is that our laws need to make police officers follow the same rules that regular citizens do in terms of respecting the constitution—is that correct?
The Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better. Even officers prone to negligence can learn from courts that exclude illegally obtained evidence. Stone, 428 U. S., at 492. Indeed, they are perhaps the most in need of the education, whether by the judge’s opinion, the prosecutor’s future guidance, or an updated manual on criminal procedure. If the officers are in doubt about what the law requires, exclusion gives them an “incentive to err on the side of constitutional behavior.”
United States v. Johnson, 457 U. S. 537, 561 (1982).
Okay, but what’s the big deal about an officer stopping me from time to time? I know I’m not doing anything wrong. If someone isn’t doing anything wrong, they shouldn’t care.
The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U. S. 429, 438 (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry, 392 U. S., at 17. 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.’” Id., at 17, n. 13.
Yeah, that doesn’t sound very pleasant. But then I would just move on, right?
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.” Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). 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.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28).
Yikes, that doesn’t sound fun. Does it get worse?
Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civilvdeath” 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. A. Goffman, On the Run 196 (2014).
But how does this relate to the ruling on Monday—the one that we were talking about before?
This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner.
Woah woah woah hold on—why are you bringing race into this?
It is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). For generations, black and brown parents have given their children “the talk”— 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. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903).
Jeez, that’s not just at all. What does this case mean then, for us as citizens?
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.
Thanks, Justice Sotomayor. That makes sense and is certainly unnerving. I think I need to talk myself through what you’ve said one more time…
Sotomayor delivered a dissenting opinion in response to Justice Thomas’ decision. Why? She foresees the detrimental loophole in Fourth Amendment that the court’s ruling could open up and disdains the endorsement of racial profiling that the ruling implies.
If the Fourth Amendment is meant to protect us from unwarranted search and seizure, then this ruling undermines such protection by allowing police officers to stop citizens on the street for no apparent reason. What ensues? The officer asks for identification and checks it for outstanding warrants. Any evidence obtained from this unsolicited stop can be used in court.
Before this week’s ruling, evidence obtained from unwarranted stops could not be used in court. Now, random stop and frisk activity will merit reward, rather than solicit punishment, for police officers as the evidence obtained therein could be used in court. So, stops that before served as an essential component of the defendant’s case are now being served up to the prosecution on a proverbial silver platter: good bye Defense a la Police Misconduct, hello Prosecution con Carne with a side of crushed Amendment.
The belittlement of the Fourth Amendment and the racial implications of the ruling are what concern Sotomayor most:
“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.”
Her dissent concludes with the implication that our legal system is only as just as is its most unjust law:
“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.”
Why does her opinion make history? Well, many arguments could be made for that. But let’s stick to three:
- It’s poignant—a chilling mix of fact and emotion that calls our attention to the humanity of our Justices and the inhumanity of our justice system.
- It’s some darned good writing. Justice Sotomayor is thorough, concise, and vulnerable; she writes directly to us—to “you,” and to herself.
- It’s a wake up call. It’s the sounding of an alarm: don’t be deceived by technical language, legalese, or tit for tat. Sotomayor’s dissent should be read, read again, and read aloud. It should be questioned and criticized and fact-checked—because it will always come back with the troubled truth and an eloquent entreaty for action.