When I graduated from the police academy in 1988, I left knowing that police officers are limited by no less authority than the Constitution of the United States in just how and when we could stop a citizen and conduct an investigation. The instructors were quite clear: “You cannot lawfully stop someone unless you have at least ‘reasonable articulable suspicion.'”
They further warned that if you as a police officer don’t have that level of suspicion, any evidence you collect will be inadmissible in court. This was the same law I learned in my criminal procedure course in law school, the same thing that I have taught to undergraduate criminal justice students and to police, and the same law I have applied in court as a prosecutor and as a criminal defense attorney.
I’m referring to what’s known as the “Terry Rule” and the “exclusionary rule.” The “Terry Rule” was laid down by the U.S. Supreme Court in 1968 in the case of Terry v Ohio and means that police do not need an arrest warrant just to stop someone for investigative reasons so long as they can articulate reasonable suspicion (more than a mere hunch) that the suspect has committed or is about to commit a crime.
I’m also talking about the “exclusionary rule” which says that any evidence obtained by police unlawfully may not be used in court to prosecute someone. This rule — or some version of it — is ancient but it really grew teeth in 1961 in the case of Mapp v Ohio when the Supreme Court said the rule applied in a convoluted case connected to the attempted shakedown of boxing promoter Don King.
Everything changed Monday. In a 5-3 vote in the case of Utah v. Strieff, the Supreme Court ruled that even if the police stop someone without reasonable suspicion, evidence seized from them may — in many instances — be admissible.
Justice Sonia Sotomayor is correct in her dissent when she says: “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.”
The Strieff case underscores two things I’ve known for quite a while.
1. The 4th amendment is not quite dead, but it is on life support, and with a grim prognosis. (The amendment states, simply: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
2. Regardless of one’s politics, there’s a need for balance on SCOTUS.
Justice Thomas’ claim that this isn’t an excuse for police to illegally stop people because they could be sued civilly is a farce. It’s nearly an impossibility to successfully sue police for their official acts due to the legal immunity they enjoy.
Though the Court and the parties acknowledge that the initial stop in the Strieff case violated the Terry rule, and the Court did not go so far as to say it’s legal for an officer to stop someone for no reason, the Terry rule is now as clear as mud.
An unethical officer will most certainly purposefully stop someone without legal cause — hoping they may happen to have an outstanding warrant — and use Strieff as justification. The Justice Department’s 2015 report on Ferguson, Missouri, found that 16,000 of Ferguson’s 21,000 residents had outstanding warrants, many of them for unpaid traffic tickets and offenses that ordinarily would not carry any jail time. So in a place like that with so many outstanding warrants, officers have a good chance of randomly (illegally) stopping someone who is already in trouble with the law.
Most certainly Strieff will be taught starting immediately in police academies across the U.S.
I believe in the entire Constitution and the entirety of the Bill of Rights, including the right to equal protection for all people. I don’t think we should live in a nation with unbridled police authority. This unfortunate ruling literally gives the police a pass for an admittedly illegal stop simply because the defendant coincidentally had an active arrest warrant for something completely unrelated and also unknown to the officer at the time of the stop.
The national debate over the 2nd Amendment rages. Yet there is virtually no public debate over the 4th amendment. After all, most people simply shrug and say “he shouldn’t have had drugs on him.” But that misses the point — the 4th amendment is (was) the most important protection against government overreach and protects — in theory — every person.
I can’t help but believe the late Justice Antonin Scalia, who was very much a friend to the 4th Amendment, would have agreed with Justice Sotomayor and the so-called liberal wing of the Court just as he did in 2013 in the case of Florida v. Jardines where he wrote:
“At the Fourth Amendment’s ‘very core’, stands the right of a man to … be free from unreasonable governmental intrusion.”
There’s no telling who will succeed Justice Scalia, but we can hope that he or she will share some of his high regard for the 4th Amendment and help breathe some much-needed life back into it.
