Monday, June 20, 2016

Justice Sotomayor's Ringing Dissent
Citing writers from W.E.B. Du Bois to Ta-Nehisi Coates, the U.S. Supreme Court Justice Sonia Sotomayor takes issue with a ruling on unlawful searches.
The Atlantic

The U.S. Supreme Court weakened the Constitution’s protections against unlawful police stops on Monday, ruling that evidence found during those interactions could be used in court if the officers also found an outstanding arrest warrant along the way.

Justice Clarence Thomas, writing for a five-justice majority in Utah v. Strieff, concluded that a Utah police officer’s “errors in judgment hardly rise to a purposeful or flagrant violation of [Edward] Strieff’s Fourth Amendment rights.”

But in a thundering dissent, Justice Sonia Sotomayor was less forgiving. “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights,” she wrote, joined by Justice Ruth Bader Ginsburg. “Do not be soothed by the opinion’s technical language: 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.”

Later, writing only for herself, Sotomayor also added that the ruling “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”

The case began, as many Fourth Amendment cases do, with an apparently unlawful search. In 2006, Douglas Fackrell, a narcotics detective with the South Salt Lake City Police Department, conducted surveillance of a local house after receiving an anonymous tip. For a few hours over the course of a week, Fackrell watched people enter and leave the house for short periods of time.

Based on his experience, he interpreted these short visits as a possible sign that “drug activity” was taking place inside. Fackrell did not see when Edward Strieff entered the house, so he could not determine whether Strieff’s visit was short enough to arouse suspicions about a drug deal. But Fackrell followed Strieff to a nearby 7-11 parking lot nonetheless, where he stopped and questioned him about his visit to the house.

During that questioning, Fackrell also relayed Strieff’s personal information to a police dispatcher—a routine practice during police stops—and learned Strieff had an outstanding traffic warrant. He then arrested Strieff based on that warrant and searched his person, discovering a small amount of methamphetamine. Strieff was then charged and convicted for unlawful possession.

Generally speaking, evidence found during unlawful searches is supposed to be tossed out of court under the Fourth Amendment’s exclusionary rule. The rule’s rationale is fairly straightforward: If cops and prosecutors can still benefit from unlawful searches, what motivation would there be to not perform them?

Utah defended its prosecution of Strieff during his appeal by relying on the “attenuation doctrine,” an exception to the exclusionary rule that lower courts have struggled to coherently articulate. The doctrine ponders the connection between illegally obtained evidence and the misconduct that produced it. Put simply, if the connection between them is strong—if one directly led to the other—then the evidence is thrown out. If the connection is remote or if some intervening act “attenuates” or alters that connection, then the evidence can be used at trial.

For the majority, that calculus favored Utah. “The outstanding arrest warrant for Strieff ’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop,” Thomas wrote. “The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff.”

In her dissent, Justice Elena Kagan disputed the majority’s portrayal of warrant checks as unusual. “They are the run-of-the-mill results of police stops—what officers look for when they run a routine check of a person’s identification and what they know will turn up with fair regularity,” she noted. “In short, they are nothing like what intervening circumstances are supposed to be.”

Thomas also excused Fackrell’s mistakes as “at most negligent.” First, he wrote, Fackrell didn’t know when Strieff had entered the house, so he had no way of knowing whether his visit was a short-term one, which could suggest “drug activity,” or not. Second, Thomas suggested, Fackrell should have approached Strieff differently by asking him to cooperate. But Thomas concluded these errors were made in good faith and did not justify the exclusion of evidence.

Kagan saw things differently. “Far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality,” she wrote.

In her separate dissent, Sotomayor also denounced the majority’s ruling for misapplying the Court’s precedents on curbing unlawful searches.

“To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence,” she wrote. “This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.”

Citing federal civil-rights investigations like the Ferguson Report, she also pointed out how some police departments conduct otherwise unlawful searches under the guise of checking for outstanding arrest warrants. At least 7.8 million Americans have active warrants against them, she added, often for minor crimes.

“The majority does not suggest what makes this case ‘isolated’ from these and countless other examples,” she wrote. “Nor does it offer guidance for how a defendant can prove that his arrest was the result of ‘widespread’ misconduct. Surely it should not take a federal investigation of Salt Lake County before the Court would protect someone in Strieff ’s position.”

In one sense, her opposition to the ruling is unsurprising. Sotomayor has repeatedly voiced her concerns about weakening the Fourth Amendment’s protections. But Monday’s dissent is also extraordinary for its breadth and intensity, especially in the last of its four sections.

“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,” she wrote. Sotomayor then went on to detail how personally degrading a police search can be, shifting her literary style to address the reader directly. (I’ve removed the citations for ease of reading.)

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. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. 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.

The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” 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.’”

“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,” she noted, citing academic works by criminal-justice scholars Gabriel Chin and James Jacobs.

Sotomayor then pivoted into the racial dimension of suspicionless stops and unconstitutional searches. Her citations, which I’ve omitted for ease of reading, double as a canon for modern critiques of mass incarceration: the landmark texts of Michelle Alexander and Marie Gottschalk, as well as the writing of W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates.

“The white defendant in this case shows that anyone’s dignity can be violated in this manner,” she wrote. “But it is no secret that people of color are disproportionate victims of this type of scrutiny. 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.”

Few institutions in American life have grappled with race and racism like the U.S. Supreme Court, for better or worse, but rarely does it speak about it with this level of detail. Sotomayor’s dissent also ends with what could be read as a veiled nod to the Black Lives Matter movement.

“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,” she wrote, citing a 2002 book by two legal scholars who argued abuses against people of color often foreshadow broader injustices. (One could also read it as a reference to the death of Eric Garner.)

“They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives,” she concludes. “Until their voices matter too, our justice system will continue to be anything but.”

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