Pubdate: Thu, 30 Jun 2016
Source: Orange County Register, The (CA)
Copyright: 2016 The Orange County Register
Contact:  http://www.ocregister.com/
Details: http://www.mapinc.org/media/321
Author: Erwin Chemerinsky
Note: Erwin Chemerinsky is dean of the UC Irvine School of Law.

EXPANDING POLICE POWER

Sometimes the Supreme Court seems oblivious to the real-world effects 
of its decisions and that certainly seems to be true for its ruling 
that allows police to use evidence that results from illegal stops of 
individuals. The decision, Utah v. Strieff, provides an incentive for 
police to violate the Fourth Amendment knowing that the fruits of the 
illegal stop still will be admissible as evidence.

Police in South Salt Lake City, Utah received an anonymous tip that 
drug dealing was occurring in a house. Police were watching the house 
and saw Edward Strieff briefly enter and then leave. The officer 
stopped Strieff and asked him his name and what he was doing there. 
The officer did a check to see if there was an outstanding warrant on 
Strieff. A warrant was found and Strieff was arrested based on it. A 
search was done and he was found to be in possession of illegal drugs.

No one disputed that the police stop of Strieff was illegal and in 
violation of the Fourth Amendment. Police may stop a person only if 
there is "reasonable suspicion" that the person has committed, is 
committing or is about to commit a crime. Even the prosecutors 
conceded that there was not reasonable suspicion to justify stopping 
Strieff; briefly entering and leaving a house under these 
circumstances does not provide a legal basis for a police stop.

The issue before the Supreme Court was whether the evidence had to be 
excluded from the trial because it was the direct result of the 
police officers violating the Fourth Amendment and illegally stopping 
Strieff. Long ago, the Supreme Court held that the products of police 
violations cannot be used as evidence by prosecutors because they are 
"the fruit of the poisonous tree." Otherwise, police would have too 
great an incentive to violate the law.

But the Supreme Court, in a 5-3 decision, held that the evidence was 
admissible against Strieff. Justice Clarence Thomas wrote the opinion 
for the court and said that, once the police officer discovered that 
there was an outstanding warrant on Strieff, that made the resulting 
search as part of his arrest permissible. The court said that the 
outstanding arrest warrant for Strieff's arrest was a critical 
intervening circumstance that was independent of the illegal stop. In 
the court's view, the discovery of the warrant broke the causal chain 
between the unconstitutional stop and the search.

This provides police a great incentive to illegally stop individuals 
knowing that, if there is a warrant, there then can be a search and 
anything found will be admissible as evidence. Outstanding warrants 
are surprisingly common. For example, if a person with a traffic 
ticket misses a fine payment or a court appearance, a warrant is 
issued. The Department of Justice found that, in the town of 
Ferguson, Missouri, with a population of 21,000, 16,000 people had 
outstanding warrants against them.

Justice Sotomayor wrote a strong dissent and said: "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."

Justice Sonia Sotomayor rightly expressed great concern over this 
especially in minority communities. It is common to hear of police 
stopping motorists just for "driving while black" or "driving while 
brown." She spoke of how police stops are degrading,s "[T]his 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."

Over a century ago, the Supreme Court said that, in order to deter 
police misconduct, evidence gained as a result of constitutional 
violations must be excluded from being used against a criminal 
defendant. Ending illegal and abusive police stops means making sure 
that the police cannot benefit from their constitutional violations. 
The court's decision in Utah v. Strieff does just the opposite: it 
gives an incentive for police to violate the Fourth Amendment and 
engage in illegal stops of individuals.
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MAP posted-by: Jay Bergstrom