The Vanishing Fourth Amendment
Walk into criminal court some time to listen to closing arguments. Odds are you will hear the prosecution talk about holding the defendant accountable for his crimes. But who holds the government accountable when it errs?
Judges are extremely reluctant to do so.
Consider this week’s 5-3 decision by the U.S. Supreme Court in Utah v. Strieff. At issue was what consequences should follow when the government violates the Fourth Amendment’s prohibition against unreasonable searches and seizures in seizing evidence.
The facts of the case are simple enough.
A Salt Lake City narcotics detective was watching a local residence after an anonymous tipster called police to report drug activity. The officer saw folks make brief visits to the house. He stopped a man he saw leaving the house, briefly detaining the man, and asked the man what he was doing at the home.
After Mr. Strieff identified himself, the officer called in to his department to see if there were any warrants out for the man’s arrest. There was one. Mr. Strieff had a warrant involving a traffic offense. He was taken into custody and searched; in his pockets, the officer found methamphetamine and drug paraphernalia. He was charged with felonies.
So what? you say. He was guilty of a crime — he possessed illegal narcotics.
Not so fast.
There was no legal justification for the police officer to stop the man. Why should he then be searched, arrested and, as was the case here, ultimately convicted of a felony?
The exclusionary rule prohibits prosecutors from using illegally seized evidence against a defendant. Law-and-order types grouse that the Constitution is silent about this rule. It’s a creation of those dread creatures — judicial activists — who are bringing the country to ruin. Unlawfully seized evidence is, lawyers say, suppressed.
Mr. Strieff’s lawyer moved to suppress the evidence taken from his client. The Utah Supreme Court agreed with the defense, and the conviction was reversed — no evidence means no crime. Utah asked the United States Supreme Court to consider the case. This week, the highest court in the land said that, although the stop was illegal, the search was legal. Mr. Strieff’s conviction stands.
Let’s unpack this mess and learn a little about the Fourth Amendment.
In general terms, the government — that means state or federal law enforcement agents — cannot unreasonably search or seize a person. Warrantless searches and seizures are, the courts say, presumptively unreasonable.
There are, of course, exceptions to the warrant requirement. There are so many exceptions, criminal defense lawyers complain, that the Fourth Amendment is losing its bite — it’s a toothless smile, a mortician’s mask.
I doubt Salt Lake City was quaking in terror as a result of Mr. Strieff’s methamphetamine. But I suspect that all Salt Lake City residents are now more likely to be the subject of an illegal stop by police officers as a result of the Supreme Court’s decision.
Police officers cannot stop folks without reason. The law speaks in terms of standards — the amount of information required to trigger action. To stop a person on the street and question him, an officer needs an “articulable suspicion” that the person was, or is, involved in criminal conduct. The standard is low — it involves no more than being able to put into words the reasons for suspicion.
Such a stop is called a “Terry stop,” the name arising from a case involving the stop of a man named Mr. Terry who challenged a brief detention by officers after he was observed behaving in a suspicious manner outside an Ohio jewelry store.
In Mr. Strieff’s case, the parties agreed there was no articulable suspicion to stop him. He was seen leaving his home but not entering it. There is no telling how long he was in the home. He may not have fit the profile of suspected drug purchasers.
One of the law’s best-known metaphors arises in the context of suppressing evidence seized in violation of the Fourth Amendment. The government cannot use the “fruit of a poisonous tree” against a defendant. In other words, evidence the government can only have obtained by way of illegal conduct is off bounds — it is fruit plucked from infirmity.
Why this exclusionary rule?
Police officers should be accountable too. The only way to assure that police officers follow the rule is to attach consequences to violation of the law. If their job is to enforce the law, it only makes sense to make them obey it, or so the theory goes.
The trouble is that those in love with the crime-control theory of criminal justice care more about the ends than the means. We must detect, arrest, convict and incarcerate those who commit crimes. If lawmen break the law to do so, that’s the price we must pay to get the bad guys.
Hence the courts chatter about balancing the social cost of suppressing evidence against the value of assuring the cops obey the law. When judges start talking about balancing tests, hide your wallet — your pocket is about to be picked.
In Mr. Strieff’s case, the court reasoned that because the warrant for his arrest predated his unlawful stop, there was no suggestion he was stopped as a pretext for arresting him.
The cop broke the law, all right. But he didn’t do so for an evil motive. Once the officer learned of the warrant, it was his duty to arrest.
What about the search of Mr. Streiff’s pockets? One exception to the warrant requirement is a search incident to arrest: The court held it was lawful to pick the defendant’s pocket.
The cop broke the law. He stopped a man without legal justification or excuse. The court then bent the rules to justify what followed.
To what end? We’re a better society because police can break the law — trample on a fundamental right — with impunity?
We get the government we deserve. When the courts permit the police to break the law with impunity, respect for the law suffers. It is that simple.