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Opinion analysis: The exclusionary rule is weakened but it still lives
By Orin Kerr
on Jun 20, 2016 at 9:35 pm
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Utah v. Strieff is a signi�cant win for the
police. It goes a long way toward creating
an exception to the exclusionary rule for
searches of persons who have outstanding
warrants (which turns out to be a lot of
people). At the same time, it’s perhaps less
of a win than the police might have
enjoyed if Justice Antonin Scalia were still
on the Court.
I. Wong Sun lives, at least as formal
doctrine
I want to start with a big-picture doctrine
point. This case is the Supreme Court’s �rst
decision on the Fourth Amendment
exclusionary rule in �ve years. As I
explained in my argument preview, the
exclusionary rule has been in tremendous
�ux before this case. A big question lurking
in the case was whether the Court would
adopt preexisting exclusionary rule
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adopt p ee st g e c us o a y u e
doctrine or use this case to announce new
limits on the suppression remedy.
It should be noted, then, that Justice
Clarence Thomas’s majority opinion does
not purport to break new doctrinal ground.
The opinion applies the factors from
1975’s Brown v. Illinois and concludes
that suppression is unwarranted. Some
will complain about how the Court applied
those factors – I will do that myself below –
but it’s worth pausing to note that the
majority opinion did not overturn or
substantially revise Wong Sun v. United
States. This case instead reconciles the
pre-2000 case law on the “fruit of the
poisonous tree” doctrine (such as Wong
Sun and Brown) with post-2000 case law
(such as Hudson v. Michigan and Davis v.
United States). According to today’s
opinion, all of the cases are ultimately
about cost-bene�t weighing.
As a matter of formal doctrine, then, Wong
Sun lives. That’s notable in part because it
might not have been the case had Scalia
remained on the Court. Scalia was a
committed opponent of the exclusionary
rule. This case was argued nine days after
Scalia’s death. It’s possible that a Court
with Scalia would have ruled more broadly.
II. Applying the Brown factors
On to the opinion itself. Today’s opinion
applies the three “factors” that the Court
recognized as particularly relevant to
attenuation in Brown. The Court presents
the Brown three-factor test as if it were
obviously the settled doctrine a court
should apply. It’s worth noting that this is
hardly so.
First of all, Brown itself does not say that
the attenuation doctrine is a three-factor
test. Brown suggests more of a “totality of
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the circumstances” analysis, with no
exclusive list of considerations. As Brown
stresses, there is no “talismanic test” for
attenuation. Second, post-Brown
attenuation cases have not focused on
Brown or applied a three-factor test.
Given that, it’s a little odd that the Court
proceeds through the three factors from
Brown in an almost mathematical way.
Two factors are strongly against
suppression and only one is for it, the
Court rules, so on balance the evidence
isn’t suppressed.
I think that’s an unfortunate framing. The
core question raised by attenuation is
proximate cause. As Anthony Amsterdam
once put it, attenuation marks “the point of
diminishing returns of the deterrence
principle.” You can miss the forest for the
trees if you isolate the three “factors” that
happened to have been listed in Brown
without paying attention to the underlying
causation question. But that was the
approach the Court adopted.
All the Justices agreed on how to apply the
�rst factor, which concerns the temporal
proximity of the violation. The evidence
was discovered just minutes after the
illegal stop, so that weighs pretty clearly in
favor of Edward Strieff. The Justices then
divided on the remaining two factors, and I
think the majority’s argument on these
points was unpersuasive.
Consider the second factor, which looks to
whether “intervening circumstances” made
the discovery of evidence remote from the
violation. The Court concludes that the
of�cer’s discovery of the warrant was an
“intervening circumstance” that was
“entirely unconnected with the stop.” I’m
unpersuaded. In the context of causation, I
think of an “intervening circumstance” as
an outside event that changes what is
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an outside event that changes what is
expected to happen. But here, the stop
unfolded exactly as the of�cer expected it
would. The existence of the warrant is only
an intervening circumstance if you didn’t
expect Strieff to have a warrant out for his
arrest. But stops lead to requests for ID
which lead to checks for warrants. As
Justice Elena Kagan noted in her dissent,
this played out just as you would expect.
I was also unpersuaded by the Court’s
application of the third Brown factor, the
purpose and �agrancy of the violation.
Although the majority opinion nowhere
notes it, the government has the burden of
proof in establishing attenuation. (Note the
holding of Brown: “We conclude that the
State failed to sustain the burden of
showing that the evidence in question was
admissible under Wong Sun.”) And in
recent decades, the Court has gone out of
its way to make clear that an of�cer’s
intent is completely irrelevant to whether
the Fourth Amendment was violated. That
means that there is usually nothing in the
record relevant to the of�cer’s purpose.
How can the government meet its burden
when there is no evidence in the record?
The majority largely �lls this in, concluding
that the Fourth Amendment violation was
“at most negligent” and was based on
“good-faith mistakes.” The majority adds:
But what’s the evidence either way?
[T]here is no indication that this
unlawful stop was part of any systemic
or recurrent police misconduct. To the
contrary, all the evidence suggests that
the stop was an isolated
instance of negligence that occurred in
connection with a bona �de
investigation of a suspected drug
house.
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But what s the evidence either way?
Looking at the record in Strieff, the
government could only point to a single
statement relating to the of�cer’s purpose.
In the direct examination at the
suppression hearing, the prosecutor asked
the of�cer, “Why did you stop [Strieff]?” I
gather this was a question about what
cause the of�cer had to stop Strieff; the
prosecutor was trying to establish
reasonable suspicion to justify the stop.
The of�cer responded with a general
statement of his motive:
The majority suggests that this establishes
the of�cer’s good faith. I don’t see how.
According to the of�cer, his goal in making
the stop was to investigate the case. But in
the context of the exclusionary rule, the
difference between “good faith” and “bad
faith” is measured with respect to violating
the Fourth Amendment in investigating the
case, not whether the of�cer was trying to
investigate the case at all. The Court has
made clear that an of�cer who
intentionally or recklessly violates the
Fourth Amendment is acting in bad faith.
The Court has also held that an of�cer
who is trying to follow the law but through
circumstances happens to miss the Fourth
Amendment standard is acting in good
faith. In light of this, I don’t see how a
generic statement that the of�cer was
trying to investigate the case can meet the
government’s burden of showing good
faith.
III. Looking ahead
[Strieff] was coming out of the house
that I had been watching and I decided
that I’d like to ask somebody if I
could �nd out what was going on the
house.
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In a practical sense, today’s opinion is
important. I think Justice Kagan is right in
her dissent that the majority’s approach
practically invites police of�cers to make
illegal stops. If you’re a police of�cer and
you want to search a suspect to help
investigate a crime, you just need to stop
the suspect and ask for ID to see if he has
an outstanding warrant. If there’s no
warrant out for his arrest, you can let him
go and he’s extremely unlikely to sue. If
there is a warrant, you can arrest him,
search him incident to arrest, and question
him later; the courts will allow that
evidence because you were acting in good
faith by trying to investigate the crime. The
police academies won’t teach of�cers to
violate the law, of course. At the margins,
though, of�cers will be encouraged to treat
almost anything as reasonable suspicion
to justify a stop. If in doubt, make the stop.
An important question is whether trial
courts will be open to developing a record
on the purpose and �agrancy of violations
and whether they focus more on the
burden of proof. In theory, the burden of
proving attenuation is on the government.
But in practice, I think a defense attorney
needs to build up a record to show
purpose and �agrancy. If the courts
presume that of�cers are acting in good
faith, defense lawyers need to put in
evidence at suppression hearings
indicating that this may be wrong.
IV. Part IV of Sotomayor’s dissent
Finally, I suspect that this case will become
most known for Part IV of Justice Sonia
Sotomayor’s dissent. Citing sources
ranging from Ta-Nehisi Coates to Michelle
Alexander, Sotomayor gives voice to the
anger and frustration of social movements
such as Black Lives Matter. According to
Sotomayor, the majority opinion “implies
that you are not a citizen of a democracy
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that you are not a citizen of a democracy
but the subject of a carceral state, just
waiting to be cataloged.” The voices of
those “who are routinely targeted by police
. . . are the canaries in the coal mine whose
deaths, civil and literal, warn us that no
one can breathe in this atmosphere.” “Until
their voices matter too,” she concludes,
“our justice system will continue to be
anything but.” That section will make her a
hero in some circles and a subject of
intense criticism in others. Notably,
however, no other Justice joined this
section of her opinion.
Posted in Analysis, Merits Cases
Cases: Utah v. Strieff
Recommended Citation: Orin Kerr, Opinion
analysis: The exclusionary rule is weakened
but it still lives, SCOTUSblog (Jun. 20, 2016,
9:35 PM),
https://www.scotusblog.com/2016/06/opinion-
analysis-the-exclusionary-rule-is-weakened-
but-it-still-lives/
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JUST IN: One new cert grant this morning: Berger v. North Carolina
State Conference of the NAACP. More on the case here:
https://www.scotusblog.com/case-�les/cases/berger-v-north-c...
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#SCOTUS adds one new case to its merits docket this
morning: Berger v. NC Conference of NAACP, in which
the justices will weigh in on an effort by Republican
legislators in the state to intervene to defend the
state’s voter-ID law. Here's the order:
https://www.supremecourt.gov/orders/courtorders/112421zr_7li8.pdf
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