Bad Law From A Bad Justice

December 15, 2017

Bad Law From A Bad Justice

Life may have just gotten a little more difficult for inner city residents as a result of the recent Supreme Court decision in Utah v. Strieff. Strieff calls into question the right of citizens to walk unmolested by the police on the streets of their community.

Under the Fourth Amendment the ability of the police to stop and question citizens is supposed to be severely restricted. Absent probable cause, or a reasonable suspicion of criminal activity the police may not invade your privacy. This understanding of Fourth Amendment protections is so widely accepted it has actually been incorporated into the General Orders of many police departments. General orders are rule and regulation that cover the action of the police in a given jurisdiction. For example General Order 304.10 of the District of Columbia Police Department states;

“a police officer may initiate contact [with a citizen] when he or she
reasonably believes that some investigatory inquiry into a situation
is warranted. . . a contact involves the voluntary cooperation of
a citizen, who is free not to respond and to leave. A police-citizen
contact does not require probable cause or reasonable suspicion, or
any other specific indication of criminal activity.

The person “contacted” may not be detained against their
will, nor frisked. They are not be required to answer the officer’s
questions, or to respond in any way to the officer if they choose not to
do so. The officer may not use force or coercion to require citizens to
stop or a to respond. Since a contact requires the citizen’s cooperation
the officer should avoid short questions, which could be misunderstood;
or requests that sound like commands. All verbal requests during the
“contact” should be phrased with optional words such as “may”, “would
you mind”, or words of similar import.

If during a “contact” a citizen should ask whether he must respond,
or gives the impression of feeling compelled to respond, the officer
“shall immediately inform them of their right to refuse [to answer
questions] as well as their right to leave.” Where citizens refuses,
or cease to cooperate during a “contact”, they must be permitted to
go on their way, and the refusal to cooperate (or silence) cannot,
itself, be used as the basis to escalate the encounter into a “stop”
Officers must understand that citizens are not required to possess,
or carry identification, nor, absent unusual circumstances, can citizens
be required to account for their presence in a public place.

While General Order 304.10 may be an accurate expression of the law, all inner city residents know that anyone who refuses to speak to a police officer and walk away runs the risk of an assault, arrest or very likely death.

While the law in this area had been well settled for quite some time Justice Thomas’ decision in Strieff would provide more latitude for the police to stop a citizen and require them to identify himself. If the officer finds there an outstanding warrant for something as minor as a traffic ticket the detainee may be arrested and searched. All without probable cause or a reasonable suspicion to confront the citizen in the first place.

The facts in Strieff are as follows; in December of 2006 someone called the South Salt Lake City Police Department’s drug-tip line to report narcotics activity at a particular residence. Detective Douglas Fackrell was assigned to investigate the tip and over the course of about a week, Officer Fackrell conducted intermittent surveillance of the home. Fackree observed visitors who entered the house and left a few minutes after arriving. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs.

When Officer Fackrell observed Edward Strieff leave the house and walk toward a nearby convenience store, Officer Fackrell stopped Strieff in the store’s parking lot and asked Strieff what he was doing at the residence. During the stop, Officer Fackrell requested Strieff’s identification and Strieff produced his Utah identification card. Officer Fackrell relayed Strieff’s information to a police dispatcher, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell then arrested Strieff and when Officer Fackrell searched Strieff incident to the arrest, he discovered a baggie of methamphetamine and drug paraphernalia. Strieff was charged with unlawful possession of methamphetamine and drug paraphernalia

Prior to trial Strieff moved to suppress the evidence, arguing that the evidence was inadmissible because it was derived from an unlawful investigatory stop. At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband. The Supreme Court held that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible because his discovery of the arrest warrant “attenuated” the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.

Under the criminal law if a police officer violates a citizens Fourth Amendment rights by conducting an illegal search the solution is to exclude the illegally seized evidence at trial. There were however a few exceptions to this exclusionary rule one of which was the attenuation doctrine. Under this exception the evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance.

To reach his conclusion Justice Thomas relied upon Segura v. United States, 468 U.S. 796. In Segura agents had probable cause to believe that apartment occupants were dealing cocaine and sought a warrant. Before the warrant was issued the police entered the apartment, arrested the occupants, and discovered evidence of drug activity during a “limited search for security reasons.” The next evening, a Magistrate issued the search warrant. The Supreme Court determined that the initial entry was illegal and suppressed all evidence discovered as a result of the entry. However the Court deemed the evidence discovered after the issuance of the search warrant admissible, notwithstanding the initial illegal search because the information supporting the warrant was “wholly unconnected with the illegal entry and was known to the agents well before the initial entry.” The Segura decision was based upon the independent source doctrine because the unlawful entry “did not contribute in any way to discovery of the evidence seized under the warrant.

Justice Thomas it seems conflated the independent source and attenuation concepts when he ruled that the decision in Segura suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is “sufficiently attenuated to dissipate the taint. This decision opens the door for the police stop, demand identification, and search citizens on the street where there is no indication of criminal activity and if there is an outstanding warrant the seizure is justified.

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