The Sotomayor and Kagan Dissents in Utah v. Strieff

In Utah v. Strieff, the Supreme Court has again weakened Fourth Amendment rights. The Sotomayor and Kagan (joined by Ginsburg) dissents are excellent and important. Sotomayor summarizes the basic issue in the case:

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. 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. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

If outstanding warrants were few and far between and distributed more or less randomly the case would have been wrongly decided but of little practical importance. Outstanding warrants, however, are common and much more common in some communities than others. As I wrote in 2014, in Ferguson, MO a majority of the population had outstanding warrants and not because of high crime:

You don’t get $321 in fines and fees and 3 warrants per household from an about-average crime rate. You get numbers like this from bullshit arrests for jaywalking and constant “low level harassment involving traffic stops, court appearances, high fines, and the threat of jail for failure to pay.”

Sotomayor and Kagan understand all this and the incentives the case now creates for bad policing. Here’s Kagan (who cites some of my work):

…far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision…As Fackrell testified, checking for outstanding warrants during a stop is the “normal” practice of South Salt Lake City police….And find them they will, given the staggering number of such warrants on the books.

…The majority’s misapplication of Brown’s three-part inquiry creates unfortunate incentives for the police— indeed, practically invites them to do what Fackrell did here….Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove.

Sotomayor is at her most scathing in explaining the indignity and serious consequences of an arrest even without a conviction (citations removed for clarity):

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.’”

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.” 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.” 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. 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.

…[all of this, AT] implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.

Comments

How many Justices have unpaid traffic tickets?

This might be fun.

Bend over, Justice Thomas.

4th Amendment (?).... What 4th Amendment (??) --- the 4th Amendment has been dead for decades.

This SCOTUS travesty is just another stab to a corpse. SCOTUS and lower courts gutted the 4th in a long series of non-Constitutional decisions.

The courts will not protect your basic rights--- SCOTUS is the government... not some separate angelic guardian.

This is what an emerging Police-State looks like.

The Fourth Amendment is one sentence. I don't think it is at all easy to interpret how it should apply in every situation.

As a law school dropout, I can speak with some authority on this issue. Indeed, the Fourth Amendment has been dead for decades, maybe even a generation, starting with the Reinquist court, so Sotomayor's dissent language that implies this case is 'novel' is flat out wrong.

For the longest time a cop can do an 'inventory search' of your car, including your person, if there's any sort of road violation. They impound the car and can tear it apart "French Connection" style. Also, for this road violation they can give a full cavity body search, even with women, and there's no law saying a woman police officer has to do the body cavity search (though usually it is a woman). Also a so-called Terry Stop can be done at any time for anybody on a public street, meaning if you look dangerous (i.e., Black) you can get stopped and searched by the police, and anything they find on your person can be used to arrest you.

Just be happy you're not in China. There, a negative performance review includes being stripped naked and spanked in public by your boss, even and especially if you are an attractive woman. Google it in the news today...

Strange story about the spanking. I saw that one. But the reality is that people don't get spotchecks the way they do in the USA. When it comes to random ID checks for BS reasons, the US is far more a police state than China (promoting anti-CCP perspectives, another issue altogether).

Having today just witnessed a group of police randomly spot-checking people as they walked down a Shanghai subway corridor (something I have never seen in the US but have seen before in China), I am pretty sure this is flat out wrong.

JFactorial - actually ... I was in Shanghai about a week ago. It seems there is somewhat of a special situation there right now, although it's difficult to separate between my specific experience and what's going on more broadly, so I don't think there's much value in getting into specifics.

Indeed, it is rare to see that (spot checks) in China. However, in considering the non-random aspect of a subway check in China, it should also be recalled that ubiquitous scans of bags prior to entering subway areas is normal in most Chinese subway systems.

Curious. Were they checking ID or bags? I've seen lots of extra checks for bags in surprise second layers of bag checking security in Chinese transportation, but it's never attached to identity checks (and in any case I've seen is universal rather than "discriminatory", although I'm not sure whether that's better...).

Also a so-called Terry Stop can be done at any time for anybody on a public street, meaning if you look dangerous (i.e., Black) you can get stopped and searched by the police, and anything they find on your person can be used to arrest you.

This is a dramatic overstatement of the doctrine, which allows police to perform protective sweeps of a person to check for weapons. It does not formally extend to more invasive searches for evidence of contraband such as a dime bag, and such evidence is routinely suppressed--though admittedly not always--when officers treat the sweep as a full-blown search.

The proposition in Terry was that the search for weapons is reasonable to police safety and minimally.invasive. But factually, the search needed to determine you are not carrying a dangerous weapon is anything but minimally invasive. It's one of the cases where one is left wishing that precedent be damned, SCOTUS may be the highest authority on questions of law, but they are obviously factually mistaken.

No, a Terry Stop cannot be done on anybody for any reason. There has to be reasonable suspicion of a violation of law. The lawful patdown of outer garments comes nowhere close the to "indignities" described by Sotomayor. She has turned a Fourth Amendment case into a soapbox for her personal favorite issue: race.

You fit the description of someone who committed a crime: black, male, kinky black hair.

Of course, you might have shaved off your kinky black hair...

Thus 45% of the people walking in some communities are suspects. 50% are female and 5% have white hair.

Given one gun per person in the US, clearly everyone you stop is likely armed and if you can't see it or find it, it must be well hidden.

But more objectively, from PBS NEWS HOUR

JACKIE JUDD: According to the most recent FBI statistics, Oakland has more violent crime than any other U.S. city except for Detroit and Memphis. It was in this supercharged atmosphere that city officials took an unprecedented step. They decided to have outsiders analyze their officers’ behavior, knowing the results wouldn’t be pretty.

Oakland Mayor Libby Schaaf:

MAYOR LIBBY SCHAAF, Oakland: It is incredibly important that we ask these hard questions, so that we can get to the bottom of making the department something that the community trusts and that is, in fact, bringing justice.

WOMAN: So, this when I just broke down the entire stops into both race and gender.

JACKIE JUDD: Researchers at nearby Stanford University spent two years analyzing vast amounts of data, field reports from 28,000 stops officers made on the streets and roads during a 13-month period, and body-cam video from 2,000 of those encounters. They expected to find about 7,800 stops of African-Americans. In fact, there were more than double, almost 17,000 stops.

What surprised everyone involved even more was the huge gap in handcuffing.

REBECCA HETEY: Even when we took out stops that resulted in arrests, we found that one in four black men, for example, were handcuffed, compared to one in 15 white men.

http://www.pbs.org/newshour/bb/study-slams-troubled-oakland-police-department-for-racial-bias/

And this is after a decade of outside review by courts demanding the police end civil rights violations.

Remember, Oakland is what spurred the gun control movement, but by Republicans. Reagan was governor and black citizens sought protection in the second amendment and formed the Black Panthers for Self Defense which used civilian patrols in Oakland, with legal carry of hunting rifles, to defend the citizens from abusive government police power. The Republican legislature prohibited public carry of guns in California with Reagan's signature.

I argue for black civil rights activists to organize blacks and browns to join the NRA by the millions, for at least a decade in order to vote and change the NRA leadership, as well as ensure blacks and browns swamp gun shows and NRA meetings with attendance. I'm pretty sure the Oakland effect will lead to Republicans seeking strict gun control laws.

Just another nail in the coffin of 4A. Nailed pretty tightly down now. Why is there no video of the arrest?

Since the identities of the justices are already known, the police could already check whether they have arrest warrants for unpaid traffic tickets, then arrest them and legally search them in the process. This was established precedent that is not changed by this ruling.

It's like Bush and his 'waterboarding is not torture' schtick. Let's do it to him and his family routinely and see if he still maintains his position. He's got grandkids, right? Same with Justices and this. Subject them to daily "random" stops and searches. And their families and friends. Its all legal. Fascists.

you realize that waterboarding is done routinely to certain members of the armed forces, don't you?

With their prior consent as they have joined such units knowing full well what the "anti-torture" training will entail.

In general, when Breyer and Alito agree, it's bad news for civil liberties. I can think of good things (and bad) to say about most of the Justices, but am most skeptical of those two.

his 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.

The good news and bad news is that you're always doing something wrong.

Which part of that is the good news?

That Sotomayor's specific concern isn't an actual, real world issue.

Hmmm, Tyler you left out some important information on this. I'm not convinced it's a good decision, but this case was not about a random stop.

"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. The
trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the
evidence suppressed. "

Oops Alex posted this.

Whatever the merits of the stop, the prosecution conceded that stopping Strieff was illegal, so the decision does apply to illegal random stops.

Not so fast. Here's the court's summary of its holding:

"Assuming, without deciding, that Officer Fackrell lacked reasonable suspicion to stop Strieff initially, the discovery of that arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to his arrest."

and

"Officer Fackrell was at most negligent, but his errors in judgment hardly rise to a purposeful or flagrant viola- tion of Strieff’s Fourth Amendment rights. After the unlawful stop, his conduct was lawful, and there is no indication that the stop was part of any systemic or recurrent police misconduct. Pp. 6–9.
(2) Strieff’s counterarguments are unpersuasive. First, neither Officer Fackrell’s purpose nor the flagrancy of the violation rises to a level of misconduct warranting suppression. Officer Fackrell’s pur- pose was not to conduct a suspicionless fishing expedition but was to gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs. Strieff conflates the standard for an illegal stop with the standard for flagrancy, which requires more than the mere absence of proper cause. Second, it is unlikely that the prevalence of outstanding warrants will lead to dragnet searches by police. Such misconduct would expose police to civil liability and, in any event, is already accounted for by Brown’s “purpose and flagrancy” factor. Pp. 9–10."

The court assumed, but did not hold, that the stop was illegal. There's a crucial difference between the two.

And, Sotomeyer is not being completely honest in her hypothetical fear mongering. The holding, in discussing the third prong of the attenuation exception ("flagrancy of the offence") clearly anticipates and rules out the possibility that merely randomly stopping someone as pretext for a "fishing expedition" would be considered "flagrant" (see above).

The fact this was *not* merely a "random stop", as pointed out by JWatts, was crucial to the finding.

Thanks for the correction; I had missed that nuance.

This does indeed significantly undermine Alex's point.

Good comment. I think a distinction needs to be maintained btw/ the Fourth Amendment right (assumed to have been violated here) and the remedy, of which the Court is denying one remedy (exclusionary rule) where the conduct was at most negligent.

That said, the limitation of the civil remedies are worth noting. Criminals are not sympathetic plaintiffs and the inconvenience of most arrests is not going to to result in much in terms of damages. OTOH, Sotomeyer goes too far in implying that the ruling will give rise to "institutionalized" practices which encourage violations of Constitutional rights. What makes a civil remedy worthwhile is tracing the violation back to institutional practices and training.

This is a very good catch, but I'm not sure it refutes this dissent. I am conflicted.

If there was reason to search the defendants car based off observation of the persons actions in and around a residence, the officer should be able to get a search warrant, no?

Also, regardless of the lack of systematic behavior in this case, I think the majority is being a bit blase about the incentives this piece of case law creates. How much harassment constitutes a systematic policy? Flagrancy is the kind of thing that gets watered down at lower courts and incentives matter!

@Brian, there is a precedent that police can stop people if they observe behavior that reasonably leads them to suspect a crime. This is important and necessary.

For example, if the police hear gun shots, then hear someone scream, and then see someone run by with a gun, surely they ought to be able to stop this person without obtaining a warrant. Even though this scenario could happen without a crime occurring, there is very good reason to suspect that one did occur. But of course, what is the cutoff point for suspicious behavior? This is a complicated question.

At issue here is how flagrant of a violation this was. Strieff was seen coming out of a house that was being monitored for suspected drug activity, so his stop wasn't random. It didn't meet the threshold for police to be able to legally stop him, but that could be plausibly considered an error rather than an intentional violation of his rights.

I'm amazed you think this somehow makes it better. In any case, don't play stupid, As always, it's not just the particular case that matters, but it's implications for other and future cases.

This post is Alex's, by the way.

While this case's stop wasn't completely random, the logic of the majority decision would have it apply to random stops as well. That's what Alex and Sotomayor are concerned about.

So what? You don't lose your human rights just because you buy meth, and especially not because an officer of the law happens to believe that someone you met briefly is selling meth.

But, if there is a warrant out of for your arrest, you might just get arrested on sight. That's what a warrant means.

The issue isn't the arrest, it's the search. Yes, there is a difference, and yes, the difference is important.

Yes, there's a difference, and it was found trivial in the case. Argue that it isn't trivial, don't just dismiss the evidence.

I'll assume by the fact that you're no longer pursuing the "warrant for his arrest" angle that you've conceded my point and leave you to sort the rest out yourself. :)

Of course, but the legality of the arrest is not at issue. The police did not stop the defendant in this case and ask for ID because they had reason to believe he had an outstanding warrant. As mentioned above, the prosecution conceded that the original stop was illegal as the police at the time did not have sufficient basis for "reasonable suspicion" that the defendant was engaged in any illegal activity as required by Terry v. Ohio.

What human right? The court just affirmed that this 'human right' is a figment of your imagination. You seem to imagine that somehow you can depend on someone in power to put your interests first.

Be disabused of that notion. This is what happens when you pay taxes. They have money to hire people to harass you and ruin your life.

Don't deal meth. Pay your parking tickets. Be a good little boy and nothing bad will happen to you.

Or use the second amendment to make sure that the fourth (and first) is respected by those in power.

"You seem to imagine that somehow you can depend on someone in power to put your interests first."

I have no idea how you extracted that impression from my comment, but it's best not to jump to conclusions.

"Be a good little boy and nothing bad will happen to you."

JACKIE JUDD: Researchers at nearby Stanford University spent two years analyzing vast amounts of data, field reports from 28,000 stops officers made on the streets and roads during a 13-month period, and body-cam video from 2,000 of those encounters. They expected to find about 7,800 stops of African-Americans. In fact, there were more than double, almost 17,000 stops.

What surprised everyone involved even more was the huge gap in handcuffing.

REBECCA HETEY: Even when we took out stops that resulted in arrests, we found that one in four black men, for example, were handcuffed, compared to one in 15 white men.
http://www.pbs.org/newshour/bb/study-slams-troubled-oakland-police-department-for-racial-bias/

So, being stopped, handcuffed, delayed, being late for work or school and being fired or reported for truancy, is "nothing bad".

"Or use the second amendment to make sure that the fourth (and first) is respected by those in power."

You mean the Black Panthers for Self Defense!?

That led Republicans to pass gun control laws to make the legal public carry of rifles illegal, signed by Gov Reagan.

The IRS BOLO list for poltical non-profits had 2 liberal groups vs. 300+ conservative groups.

No one was held accountable and progressives claim there was no scandal.

So, I'm supposed to get excited by this data? Yawn. Not a smidgen of scandal.

"Or use the second amendment to make sure that the fourth (and first) is respected by those in power."

This kind of nonsense is always hilarious to read. You do realize that we have a long historical tradition of idiots engaging in armed rebellion against the US government. The most successful rebellion lasted several years and STILL ended in ignominious defeat. The most recent attempts at armed rebellion haven't even given the plotters a good death. They've just been arrested and charged with crimes that will keep them in jail for years.

I guess if you want to fantasize about dying in a failed rebellion that's your prerogative. It's just a pretty weird fantasy to have.

-- You do realize that we have a long historical tradition of idiots engaging in armed rebellion against the US government. --

And presumably you realize that but for idiots engaging in armed rebellion, there would not be a US government to speak of. Or, rather, you would have realized such if you were a bit smarter than you appear to be.

over the course of a week !
Surely they could have found a pliant judge who would find a week(!) of observation of suspicious activity constitutes probable cause. In fact it probably does.

This is a case where Scalia could've influenced the decision to go the other way. He had a long history of ruling in favor of criminal defendants in Fourth Amendment issues, and I think he could've reigned in Thomas and maybe even Souter.

But my lib friends assure me that Scalia was nothing but poisonous to civil liberties during his tenure.

He ruled in favor of defendants in determining whether a search had occurred. In terms of what to do with the evidence, he was a standard conservative jurist.

Agreed, in cases like these Breyer is always the outlier, I wish Scalia was still around. His King dissent is fantastic. I don't think Thomas would have changed his view though.

Unlikely, to say the least. Scalia was not a fan of the exclusionary rule at all. Typical of conservative jurists on the S.Ct., he was weak as regards to 4th amendment protections where police tactics were involved. Where he was better was in cases where the citizen/suspect/defendant had been handed off to the prosecutors and judges. Between arraignment and a final decision by the jury/judge, Scalia could be more moderate. Otherwise, no.

*I meant Breyer, not Souter.

If only Sotomayer and Kagan see a clear violation of fourth amendment rights, am I skeptical? Yes.

This ruling is about the limits of the controversial "fruit of the poison tree" concept, which is complicated and can't be resolved with a simple appeal to the constitution (what is an "unreasonable search"?).

While I don't know what the right answer is in this case, the issue of too many arrest warrants for petty reasons seems like a red herring. That is an issue that ought to be addressed directly.

Agreed. Imagine an officer stops someone randomly. Turns out this person is wanted for one murder. Officer finds the perp carrying a duffel bag full of human heads, pictures, bloody weapons, signed confession. Alex would have us give the murderer his weapons and human body parts and send him along his merry-way, because of bad Ferguson police strategy.

Yes, that is precisely how the law is supposed to work. If police search people for no good reason, someone with a bag of body parts would get off.

And in so doing, the rest of us would be protected from a police state ending, which is far worse than the occasional "mere murder".

That's OBVIOUSLY not how the law is supposed to work, and a majority of Supreme Court justices disagree with you. It is supposed to protect you from unreasonable search and seizure. It does not protect you from small oversight when you were supposed to get arrested anyways.

The idea was to construct a system of incentives that would keep the police from invading our rights too much. It isn't about protecting the one guy with severed heads and a murder warrant, it is about incentivizing the police not to stop 999,999 other people who were doing nothing wrong and who have no warrants out for them in search of that 1 murderer.

But the majority seemed to leave open the possibility of ruling differently if the police behavior were systematic. Here, they appear to believe that they are not creating an incentive to generally violate rights, because the officer made good faith mistakes that led to his detention, rather than systematically stopping everyone on the street to see if they have outstanding warrants.

Correction: how it WAS supposed to work.

I guess SCOTUS is OK with welcoming the police state? Seems increasingly so.

Correct, Turkey, I agree with your point, that's how the Majority sees this case, and they said as much. The murderer example is the evidence of why: obviously we wouldn't want to let the murderer go free because of a small mistake by an honest police officer. That's not "creating a police state," that's pointlessly jeopardizing our safety, and creates overly cautious police officers.

I think we need to see how the Court rules in the face of a situation where standard operating procedure is to randomly stop and detain people to check for outstanding warrants. If that is allowed and this case is cited as support, then it was truly an important erosion of civil liberties. If it is disallowed, then this case is of very little importance as a practical matter.

I think the police state claims are overwrought. This case fiddles at the margins of when evidence obtained after improper police action is admissible. This is already a complex area with lots of rules and exceptions.

The ruling is in part based on the fact that stopping Strieff was an error, not a flagrant or intentional violation of his rights (see Vivian Darkbloom's comment above). So it will only apply in limited cases. It cannot become the basis of stopping everybody in hopes that they have an arrest warrant.

Well, I think if the Court were so inclined as to allow random stops to search for arrest warrants, they could cite approvingly to this case and ignore all their caveats about it not being flagrant or intentional. It would weaken their argument but I don't think it would automatically fail the laugh test.

But yes, from what I know of this Court and its possible future composition, it seems highly unlikely that truly random stops to check for outstanding warrants will be approved in the near to medium-term future. Though the line for what is acceptable may be shifted a little nearer to random.

"That’s OBVIOUSLY not how the law is supposed to work, and a majority of Supreme Court justices disagree with you. It is supposed to protect you from unreasonable search and seizure. It does not protect you from small oversight when you were supposed to get arrested anyways."

So, why not have the police stop everyone driving I-70 every 100 miles and search them and their vehicle?

Wouldn't a hundred arrests and convictions per week justify these searches as reasonable? The convictions would prove the arrests should have occurred, and the arrests would prove the millions of stops and searches were reasonable because they found crimes that should result in convictions.

As I recall, SCOTUS has ruled previously that a rule that requires stopping and searching everyone is reasonable because it's applied equally and without bias.

ADBG - letting a murdered off for a mistake of an officer is precisely the kind of thing that ensures that the cops don't go rogue. Just one case like that, and it'll keep cops clean for decades.

Worth it.

Law enforcement may celebrate this ruling but combined with Heien, it demonstrates the court's opinion that law enforcement is too stupid to know the law, whereas LE celebration of this ruling demonstrates the intent to creat more such 'mistakes'.

No, that's not how law is supposed to work. Law is designed to seek the truth in balance with protection of people's rights. There are severe social costs to ignoring the dufflebag of severed heads. A mere violation of rights does not make the truth value of the evidence any different unless the act of violating rights causes doubt as to the authenticity of the evidence. Suppression of evidence has always been limited and a last resort. The deterrent effect can be maintained through disciplinary action and civil constitutional tort actions.

I am skeptical that we can rely on disciplinary action and civil actions as deterrents. But I also think suppression isn't a very useful deterrent - still a good chance you can get the guy on something else, and if not, the cop at least knows he took the often-proscribed piece of evidence off the streets. A mixture of the three is probably our best hope of many bad options.

Ultimately the real solution is legislative and cultural. In terms of culture, I think both police-specific culture and our culture generally are relevant. When every cop show has civil liberties as a pesky nuisance in the way of catching the bad guys, and our heroes expertly pushing or stepping over the boundaries to achieve justice, I think that society generally and police culture specifically moves away from respecting and wanting to protect those liberties.

I am skeptical of the exclusionary rule as an effective deterrent. Frankly I don't think cops particularly care about the niceties of what evidence is and is not allowed in. I think they care about getting perps off streets, and aren't too concerned about what happens next. And reality seems to agree with me - if the exclusionary rule was an effective deterrent, you wouldn't see the number of fourth amendment cases that you do. I think if you want a deterrent you have to open up to actual suits against departments or individual cops - then they'll start to care. But that will never happen, for a number of reasons both good and bad. So we're stuck with what we've got.

Urso, I agree. I think that within the current world, only cop-specific penalties would act as truly effective deterrents, but that essentially any personal tort liability would shift things so far in the other direction as to make policing basically impossible.

So what we have may be ugly, but the best of the bad. Perhaps we could improve exclusion's deterrent effect legislatively by incorporating it into police performance reviews, and compensation and promotion decisions (those with a relatively excessive rate of exclusions per arrest, or some similar type of metric, would not receive promotions or pay increases or what have you), but it wouldn't take much for that to produce the same over-deterrence problems of individual tort liability.

It isn't a red herring. Prof. Tabarrok is not, as far as I can tell, making a Constitutional argument and he is not a lawyer. He is making a policy argument about how the issue of lots of outstanding warrants on dubious pretenses coupled with this decision greatly expands the power of the police and gives them an incentive to detain innocent people in hopes of finding a few with outstanding warrants. It's a legitimate point.

That might be a legitimate point, but it isn't the subject of the case at hand, and it isn't a good basis for Fourth Amendment jurisprudence. If you disagree with the contemporary proliferation of fines and consequent warrants for minor offenses, and you try to resolve that problem with a rule that prohibits searches--rather than getting rid of the proliferation of offenses directly--you end up with a rule that does indeed permit a mass murderer to go free, which is stupid (and not utility-maximizing).

One that should be addressed at the town level, not Constitutional.

The existence of incentive is not evidence of malpractice.

Yes it is. That's why, if a doctor takes a free pen from a drug company, every single thing they do after that is corrupt and wrong.

Alex clearly is making a constitutional argument. He starts off by saying "the Supreme Court has again weakened Fourth Amendment rights", approvingly quotes the dissent's points about the Fourth Amendment, and states the case was "wrongly decided".

The dubious outstanding warrants are not relevant to that argument, and thus I view them as a red herring in this context.

I do agree with his broader point and previous posts about excess fines and warrants; I just don't find the connection to this case compelling. Admittedly, though, I don't begrudge him writing a post about it when Supreme Court justices reference his work!

what is an “unreasonable search”?
One where no warrant has been issued. Especially in this case where a warrant surely could have been obtained.

This is all very persuasive from Justices Sotomayor, Kagan, and Ginsburg. Perhaps they should resign their Supreme Court Justice appointments and run for the type of offices where they aren't obligated to interpret the Constitution.

Sotomayor also injected various race/ethnicity-related issues into her dissent. As always, I think if your goal is to build a coalition and effect change (whether as a Justice or a private citizen), turning to race or ethnicity is a losing proposition. Your goal should be to make it to where any American can imagine themselves on the business end of the police and garrison state we have erected. The defendant in this case was a white guy. If you start talking about race and ethnicity, and particularly of minorities being on the losing end of a racist criminal justice system, you lead people to think of a white cop and minority citizens. This can lead whites to identify with the cop and end up supporting ever-greater violations of our constitutional rights, as the issue has now been put into an us-against-them racial identity framework. Ideally, you want everyone to imagine being on the losing end of these interactions, and to imagine that it is a cop who is otherwise just like them who is doing it.

Separately, we should also ask ourselves why we have put so much power in the hands of (currently 8) people to decide so many important societal issues.

I don't think this is quite right.

If you describe an unjust encounter between a white racist cop and a black man, I'm not going to identify with the racist and take his side simply because I'm white, too. I will be outraged by the injustice and want to change that. So will many others. This can be seen in the civil rights movement, where millions of white people supported and/or joined the cause.

The reason many white people react against racism talk is not because they tribally identify with other white people; it's because they don't agree with the facts of the situation: they don't think racism is really an important factor in whatever was being discussed. And a belief that the issue of racism is being exploited/exaggerated to achieve some end is what leads to an us-vs-them mentality.

I heartily agree with your last sentence, though.

"it’s because they don’t agree with the facts of the situation: they don’t think racism is really an important factor in whatever was being discussed"

See, I'd say the not agreeing with the facts of the situation is in part (if not large part) tribal or identity-related. The thinking would go: "I'm white. I don't think I'm racist. It's hard for me to imagine there are a bunch of white cops running around being racist. So I think, in the absence of specific evidence of the cop saying something racist, this probably isn't a racial issue. Those arguing for the defendant seem to be all about race, and I don't think it's a racial issue, so the cops were probably in the right here."

So let me add a bit more nuance to my point: in the face of explicit discrimination (racial segregation, or a police force or officer that specifically states there are racial motivations for their behavior), turning to race/ethnicity will be effective. But when the purported discrimination is implicit (in the system or in the individual officer, or both), turning to race/ethnicity will tend to lead to what I described in my first post: an-us-against them mentality that leads whites to identify with the police, brought about by the thought process described in this post.

If I don't believe accusations without evidence, is that automatically because I'm acting tribally? I hope not. I hope I will assume good faith on the part of others (whether they look like me or not) and therefore disbelieve claims unless there is some evidence to back them up.

Yes, tribalism exists. We tend to identify with people who are similar to us. However, I think you are overplaying its role here.

I think the tribalism starts after the process you have described. Before that, it could be identity-based (maybe we are more likely to identify with the white cop than the minority defendant, and more likely to believe in his good faith absent clear evidence to the contrary). Or it could be an identity-free, rational take on the situation. I don't think that ultimately matters.

But then, having come to that conclusion, we now see that the issue has been framed in racial terms. Those arguing for the defendant seem to be talking about a racist cop or racist system. We don't think the system/cop were racist here. Now, we may choose sides in a tribal manner: on the defendants side are a bunch of people calling a white cop, or a system with a bunch of white people in it, or white people generally, racist. We may err on the side of the white cop, without really thinking about or examining the underlying civil liberties issue too closely, because it seems like those arguing against the white cop are just saying all white people are racist. And we're not racist, so screw that.

I'm just trying to say that I think there are a lot of people (perhaps relatively less-informed or thoughtful people) who could end up at that destination, specifically as a result of framing an issue like this in racial terms. If instead care had been taken to make these same people imagine themselves as potential defendants, rather than potential cops (which should be easy since most of us aren't cops), I believe it would be much more likely that those who are concerned with the erosion of (or current lack of) civil liberties could get those in the muddled middle on their side.

I think Sotomayor was put on the bench to do exactly what she's done here. And if you read the typical blogs, they are absolutely eating her dissent up like it's the second coming of Marbury v. Madison. The reality is, the lay reader doesn't care about the history of the fruit of the poisonous tree doctrine. But this race stuff is bold & exciting.

Whose ox is being gored? The idea that it could be anybody is liberal fantasy. Most of us pay our traffic tickets, so we don't have to worry about being stopped and the cops finding the stolen goods, heroin, dead bodies, etc. in our trunk. Not baking that cake on the other hand will get you put out of business. I don't hear too many screams over the massive, unionized TSA necessary to managing all that vibrant diversity from immiscible cultures either.

I don't think this is true. Plenty of middle and lower class whites have negative experiences (or know people with negative experiences) with the police state. When it isn't presented in racial terms, many of these people will identify with the citizen over the cops.

I'm white, grew up middle class in a very white area, and yeah, police harassment of young men was common. That included finding dodgy pretenses to search vehicles to turn up trivial amounts of pot, leading to arrest. (This never happened to me, but it did to more than one person I knew.) The idea that this is only a problem for those people is dodgy even if it were true, and it's probably not true.

If we legalized pot, that problem would disappear, and the only group hurt would be those with heroin, stolen goods, dead bodies, etc. in their trunk. Your argument may be ideologically consistent but past a point it's going to fail cost-benefit analysis.

Yes, the central problem is an overabundance of legal prohibitions. But I believe that individual civil liberties are in part an alternative path to protect the individual against a majority (or active minority) that has legislated its behavior into illegality. Or a defense against arbitrariness in a world where everyone is violating some law.

This will all be moot soon because of technology. Police forces will be using wearable body cams and not just to defend their officers from civil rights complaints. The camera will have embedded Facial Recognition which will "call home" with faces from the crowd as the officers walk the daily beat. Each face will be run through the central Database to look for warrants in real-time and the officer will get a notification shortly after he walks past a wanted person. No illegal stop and search will be required; it will be automated.

Oops, I should have refreshed the comments before writing. This!

Rule 41 by the Justice Department will become law by default unless Congress gets together to vote against it. Previously, local judges could only authorize government officials to hack personal computers within their own jurisdiction. Under rule 41, a warrant signed by a judge allows security state agents to global hacking rights.

“Under the proposed rules, the government would now be able to obtain a single warrant to access and search thousands or millions of computers at once; and the vast majority of the affected computers would belong to the victims, not the perpetrators, of a cybercrime ...": http://arstechnica.com/tech-policy/2016/05/legal-quirk-enabling-surveillance-state-expansion-absent-congressional-vote.

If you're concerned about the 4th amendment, this might be even worse that the patently police state-esque practice of being required to produce proof of identity when you're not doing anything wrong and security state personnel are unable to cite a specific reason for concern relating to the individual situation.

It is all moot anyway. With the advances in facial recognition, you soon will be identified without a stop and hold. With the warrants clearly legally binding, you can simply be stopped and arrested at that point. If one is going to complain, it needs to be about the avalanche of infractions that give rise to the bench warrants. As someone above wrote- this is what an advancing police state looks like.

I think this is an unfortunately correct vision of the future.

The Supreme Court has (fairly ridiculously, I think) been presented to generations as a bulwark against the invasion of our civil liberties, and we have as a result put far too many eggs in that basket. The best solution is in legislation, not litigation.

Yes, I have made this point many, many times to civil rights advocates over the years, most recently to those who support gun-ownership rights. Depending on courts is a fool's errand.

The Court has turned out to be more than a parchment barrier because we (generally) respect its decisions and abide by them. But it also turned out to be ideological and political, rather than drawing from some ethereal True Law. So while the barrier is real, it is a barrier that can be destroyed at any moment by a slight change in the Court's composition.

And the cultural change (within the legal profession and within society generally) away from believing in a True Law has, I believe, opened the Court's ability to make purely ideological decisions ever wider. While belief in a True Law is illusory, I believe it acts (or acted) as a constraint on the Court's behavior. Once everyone acknowledges that the Court is purely ideological/political, then few decisions seem entirely out-of-bounds. The scope of the "laugh test" is ever broader, and the Court is expected to behave like any other political branch.

That was the point made by the great Antonin Scalia. Congress can pass laws for all the positive rights it wants. Instead, litigants run to the federal courts to get "rights" passed in accordance with the tastes of the elite-lawyer class. Judicial activism is the most insidious kind of anti-democratic rule.

It is conceivable that identifying everyone in public places via facial recognition will eventually be ruled a violation of fourth amendment rights. I don't think this question has been decided yet.

If not, I don't imagine it would be altogether difficult to eventually amend the constitution to make it so. Organizing the process would be difficult, but I don't think it would be difficult to get sufficient people on board. If it comes to that ...

This is possible, but I think unlikely. I don't know about any Court decisions on point, but I know that police cameras are placed in certain problem areas in some cities, and I have assumed (though I don't know) that sometimes these will be actively monitored, and if someone with a bench warrant is identified, a patrol officer (who could not have independently identified them) can be sent to detain the individual. But maybe I am wrong and these cameras are used almost entirely as deterrence.

Facial recognition may currently be used in some cases. I know it has at least been used in limited cases. However, this is not really decisive in the absence of a clear ruling on the matter.

The test is whether the practice violates a "reasonable expectation of privacy". Ubiquitous facial recognition would give police the ability to monitor all of your movements, and rulings on GPS tracking suggest the justices might rule against it as well.

This is why no one takes libertarians seriously. The Sotomayor opinion is an embarrassing reminder that she has no business on the bench. It reads like a high school essay. But, academic libertarians are just genteel anarchist, safely behind walls defended by armed men.

Seriously. Example: Part3B addresses the Majority Opinion: nothing about the officer's actions suggests widespread police misconduct. If the police were stopping everyone like Alex suggests they are about to, the Majority would change the precedent.
So, Sotomayor says traffic tickets are very common. Awesome, that traffic tickets are common has absolutely nothing to do with whether police misconduct is common. It is an irrelevant point.

Not sure what you mean. Almost all libertarians are well armed. Nothing in doctrine about walls. Aren't useful for defense as they reduce sight lines. Seem like more of a populist Trump thing.

Misconduct is widespread, they just avoid harassing justices and people known to be powerful, and sheep would never construe anything as misconduct.

I fail to see how this is a good dissent. They are mixing up several issues here, which makes it difficult to agree or disagree with the whole argument. First, the point of whether small violations are too harsh (traffic violations seem to be the biggest one). I tend to agree this is the case, but it should be fixed by changing those laws. The fact that these laws are being enforced is not really the problem... And furthermore, the whole "demoralizing" argument here is very weak. If the police stops you, you do what you are told and it has to be that way. Pat downs are a reality everywhere, from airports to sport events. Now, another issue just thrown in the mix is wrongful arrests. That is very serious, and I fail to see how this is connected to any of the issues above.

Anyway, this is usually the problem with liberal justices. Everything is just a game to get to race/discrimination/class agenda.

If the officer doesn't have a very good answer to the question "why are you asking me this question" or any such thing, you're well within your rights to give him/her the finger and just walk away.

I'm not saying that would work out well if you do so. But arbitrary search and police harassment is not anything that any citizen of any free country should tolerate. It is up to each and every one of us to resist the trend in this general direction.

(Also, if at all possible, be polite in the act of resisting abuse of police powers.)

But that is not what this case is about. Police officers are stopping people due to traffic violations. To say that traffic violations are "arbitrary" seems nonsense. We either have laws that need to be enforced or not. It seems to me that what Sotomayor and Kagan are really trying to say here is that police officers are "abusing" people who break the law by enforcing the law! That is just crazy.

In this case the stop wasn't for a traffic violation, it was for a 'hunch' that didn't meet RAS.

A foolish consistency is the hobgoblin of little minds. No, it's not. I admire Peter Boettke for his consistency. I admire Alex Tabarrok for his consistency. I may not always agree with them, but by being consistent there's the possibility, no the likelihood, of the intersection of ideas and room for agreement; it's when one side or the other is constantly moving about that intersection of ideas, and agreement, are impossible.

With you on that. I've always hated that stupid quote. It's always struck me as a carte blanche for flagrant intellectual dishonesty.

"A foolish consistency is the hobgoblin of little minds."

Think about it as if it was referring to a petty bureaucrat or official. A person that will follow the letter of the law even when it clearly doesn't apply. Or to a hide bound intellectual who refuses to budge an inch on their orthodoxy even when confronted with evidence. That's the meaning of the phrase. There's nothing foolish about Alex T.s post.

"
I think we need to see how the Court rules in the face of a situation where standard operating procedure is to randomly stop and detain people to check for outstanding warrants. If that is allowed and this case is cited as support, then it was truly an important erosion of civil liberties. If it is disallowed, then this case is of very little importance as a practical matter."

Well the Supreme Court authorized "border checks" 60 driving miles north of the actual border where that happens every single day. (Most of San Diego County, a county bigger than a few whole states is south of those "border" checkpoints. )

San Diego County, a county bigger than a few whole states !!.
Actually 20. Yes San Diego county is larger than twenty states. It is about 8 times more populous than that large patch of high desert and even higher forest, Wyoming.

NYT article on this case:

http://www.nytimes.com/2016/06/21/us/supreme-court-says-police-may-use-evidence-found-after-illegal-stops.html?_r=0

QUOTE: "And according to the Justice Department, about 16,000 of the 21,000 residents of Ferguson, Mo., are subject to arrest warrants."

Some polities are guaranteed to fail.

This kind of number doesn't mean anything by itself. What if all these 16000 really broke the law? We either change the law or we should continue to enforce it! To say that the law is ok but enforcement of it is a problem is insanity in my opinion.

And of course, I'd like to understand exactly what should be changed in the law. If we issue parking tickets and have no way to enforce them we might as well not issue them at all.

The problem with Ferguson is not the law. The problem with Ferguson is the people.

It's an ordinary working-class suburb with unremarkable crime rates and filled with owner-occupiers.

Without some more details, I don't know that any of them necessarily broke the law. I assume a lot of them are behind on child support and don't show up to court. They owe money, either fines or civil debts, and are too stupid, afraid or embarrassed to show up in court, and have an arrest warrant issued for contempt of court.

To the surprise of no one, this post is a big nothingburger.

If a cop recognizes you and knows you have a warrant out, he can arrest you on sight, even if "you are doing nothing wrong" and handing out soup at the homeless shelter.

The faux-outrage here is that if he doesn't recognize you, and only knows you have a warrant out after getting your ID and looking you up, it is somehow imperative that he had ironclad video-proof of you committing a major crime before getting your ID. Mere traffic violations or visiting a meth dealer just aren't good enough.

This is garbage, and Alex knows it is garbage.

This post makes an excellent point. The real problem here is that we give out warrants for unpaid traffic tickets - but setting that aside, the underlying legal analysis is sound.

The alternative is to live in a state where any officer can approach you any time, demand ID and start interrogating you, for no good reason. Which is something I consider to be a defining feature of a police state. Places that do that are places that I don't want to be in. Which leads me to be more comfortable in the China of 2016 than the Toronto of 2013 - no matter that I have not broken laws of either country.

Being a lawyer who regularly deals with PRC activities, I can say with fair certainty that you have almost assuredly violated some laws in China, such as "undermining the authority of the state"; notwithstanding that such laws are rarely enforced.

The United States is better, but probably not as much as you think. https://www.amazon.com/dp/B00505UZ4G/ref=dp-kindle-redirect?_encoding=UTF8&btkr=1

Better a Terrorist Hegira Out of Europe Than Into Europe

http://www.unz.com/isteve/better-a-terrorist-hegira-out-of-europe-than-into-europe/

France now faces the dilemma of whether to get used to constant terrorism or introduce concentration camps for people who seem like they might commit terrorism.

Steve Sailer suggests trying to bribe troublesome people to leave France.

The appropriate level of harshness for policing depends on the population. It's really crazy to import people who will require brutal and intrusive policing.

The Fourth Amendment is not here to protect degenerates Alex, this whole case was just an example of the lawfare favoured by the President and his appointees.

This point is critical and often overlooked (although unpaid traffic ticket = degenerate? not sure about that). The overriding purpose of the 4th Amendment is to protect the innocent, not the guilty. The exclusionary rule is not a feature of the 4th Amendment, it is a necessary evil which the SC was forced to impose in order to make police departments start paying attention. Notably, the UK has no exclusionary rule whatsoever and yet no one ever hand-wrings about what a police state it is over there.

I will disagree on this, or perhaps on the relative percentages to apply to each purpose. I think the 4th Amendment is meant to protect the innocent, yes. But I think the 4th Amendment (and some others, such as the right to a jury) should also be seen as a second means of defending individual liberty against onerous or tyrannical laws, passed by a majority that wants to criminalize the minority or within a State captured by a minority of special interests. It is not purely about protecting the actually innocent, but about somewhat protecting those who, maybe, in an ideal world, should be innocent. It should be a roadblock to the aggressive enforcement of any prohibition that extends too deeply into our personal lives.

And I would add that I think many of the libertarian persuasion implicitly believe this to be the case, though I'm not sure many of them explicitly state it.

Well you can get a warrant to enforce an unjust law just as easily as to enforce a just one, and the 4A won't help you there. What you're talking about sounds more like the hilariously-named theory of substantive due process

I think what I am trying to get at may overlap a bit with (what I remember of) the idea of substantive due process, but I think it is distinct, and in a way that doesn't require the Court to legislate its current morality from the bench.

Basically, I think there are a number of topics where laws are very likely to involve unjust (or undesired) invasions of individual liberty, and where we can comparatively easily identify exactly what type of invasion we want to protect against. So there can be the constitutional right to freedom of speech, exercise, assembly, the right to bear arms, and the like.

But then there is a much more muddled realm where, on the whole, we would prefer the State not venture, but where there may also be the desire to sacrifice liberty for security, social cohesion, or some other collective goal. Generally, I think of this as highly personal behavior - what we do with our bodies, with our homes, and within our homes. Here, an outright prohibition on government interference will not work, both because (1) it is hard to precisely describe the bounds of the liberties that should be protected, and (2) there may be good reasons to violate those rights, and perhaps moreso at some times than others. So, rather than an outright ban, we could attempt to increase the costs of enforcing such infringements, and increase the ability of violators to get away with the proscribed conduct, by hampering the ability of the State to detect, investigate, and prosecute the conduct. All else equal, increasing the cost of enforcement and the probability of escaping punishment should lower the likelihood of proscribing the conduct in the first place.

The upshot being that, unlike (again, what I remember of) substantive due process, I don't think there are special areas of liberty that the Court can discover and proclaim to be inviolable based upon their current morality. Rather, I think the structure is set up so that State intervention in the personal sphere will be more costly, as a general matter, to deter that intervention in the first place. Thus, while a debatable portion of the 4th (and other Amendments') thrusts may be toward protecting the innocent, some portion is also meant to protect the technically guilty by increasing the cost of the laws that made those citizens guilty in the first place.

This just so happens to go nicely with my view of how to best interpret and apply the 2nd Amendment as, among other things, assuring that an armed populace will increase the expected cost of governmental overreach upon individual liberty, by increasing the expected cost of enforcing such laws.

I did not post this, and it out to be deleted by the moderator.

To be fair, 11.2 trillion and 131072 warrants are just for dropproceduer sp_createwarrant which we created during a failed SQL injection attack.

Tabarrok's assertion is that police enforcement of minor laws often do more harm than good, especially with follow on penalties for not paying fines or not showing up in court.

Local government's jobs is to be attuned to the needs and wants of their immediate people, and adjust services such as law enforcement to serve them effectively. If Tabarrok's assertion is true, that local law enforcement often does more harm than good, why doesn't local government adapt?

This type of issue shouldn't need to be elevated to the national level.

Many local governments are very sympathetic with Tabarrok's mindset.

If Tabarrok is right that some local law enforcement does more harm than good, the right solution is: develop some alternative policies and shop them around to sympathetic local governments that are eager to try them out. If after a year or so, results are good, expand to other cities.

He knows nothing about law enforcement.

Well but what is the alternative here? Just ignore people who are not paying fines? How is that going to help?

The only alternative that I see here is to actually create more public parking. But is that really the issue here? Are these fines related to parking or related to speed infractions, car safety and such? Are we really saying we should avoid enforcing these laws too just because too many people caught in those infractions end up being arrested for other infractions?

This whole thing sounds very backwards...

You don’t get $321 in fines and fees and 3 warrants per household from an about-average crime rate. You get numbers like this from bullshit arrests for jaywalking and constant “low level harassment involving traffic stops, court appearances, high fines, and the threat of jail for failure to pay.”

The high rate of issuance was for traffic offenses. The main beltway around St. Louis runs through 12 of the 90-odd municipalities on the Missouri side of the border, among them Ferguson and Florissant, hence the high rate of tickets returnable in the Ferguson municipal court. The tickets aren't being issued to Ferguson residents, by and large. This isn't that difficult. It requires some spelunking around and looking at a map, something which appears to tax to the breaking point the skill set of libertarian polemicists on the payroll of the Commonwealth of Virginia.

The underlying problem is fines. Money corrupts, pure and simple. The justice system shouldn't allow fines period. The reason there are speed traps and traffic cams is that it is lucrative. There is a small town near me that gets half the city budget from traffic fines. The problem will disappear when the money stops flowing.

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