Yesterday the Supreme Court announced a decision in Utah v. Strieff. It's a case about whether to surpress evidence a cop found while illegally searching a suspect. Since 1961's Mapp v. Ohio, the Exclusionary rule applies to evidence obtained from illegal searches, it is excluded from trial because including it (a) isnt' fair to the defendant and (b) encourages police to perform future illegal searches. There are some exceptions (as we'll see a lot). Here are the facts of this case from the Syllabus:
Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop.
So everyone agrees that the detective could talk to Strieff on the street, but this was more than that, note the word "detained". The police can't "stop" or "detain" you without probable cause. Thomas' opinion says "Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so." Thomas called this "a good-faith mistake". He went on to apply three factors in a decision process to see if the evidence needed to be excluded and concludes it doesn't.
It's not surprising that Alito, Roberts and Kennedy joined this opinion. Conservatives in general don't like the exclusionary rule. If there's evidence you commited a crime the law should use it to prosecute you. Apparently they don't agree with the idea of encouraging the police with incentives to not break the law. Sotomayor, Kagan and Ginsburg dissented. I don't know why Breyer joined the majority in this, in the past he's supported the exclusionary rule.
So both Kagan and Sotomayor argued against the majority's logic. The opinion and two dissents are short, 31 pages in all (including the Syllabus). Read those or Orin Kerr's excellent SCOTUSBlog post. But what is getting the post press is Sotomayor's "blistering dissent". This is referring to the last section, which is powerfully written (perhaps moreso after making it through Thomas' boring prose). Scalia would approve (though he clearly would have voted with the majority). Here is the last section of Sotomayor's dissent with the references turned into the best links I could find. The referenced cases are mostly Wikipedia pages, so you can find a summary about them.
Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience suggested by the name. 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. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact. Whren v. United States (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, but it may factor in your ethnicity, United States v. Brignoni-Ponce, (1975), where you live, Adams v. Williams, (1972), what you were wearing, United States v. Sokolow, (1989), and how you behaved, Illinois v. Wardlow, (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, (2004); Heien v. North Carolina, (2014).
The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over. 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, (1991). Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” Terry. 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.” Atwater v. Lago Vista, (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; Maryland v. King, (2013). 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. Chin, The New Civil Death, (2012); see J. Jacobs, The Eternal Criminal Record (2015); Young & Petersilia, Keeping Track, (2016). 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 (2014).
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. See M. Gottschalk, Caught 119–138 (2015). But 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); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
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. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). 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.
Apropos to this, yesterday I saw this story, Boston Students Learn To Exercise Their Rights. 8th graders know the Miranda speech from TV but are being taught what it actually means.