Utah v. Streiff: What the Exclusionary Rule Could Mean for Ferguson

 

Amanda Porter

Introduction

What happens when a police officer makes an unlawful stop, learns that the suspect has an outstanding warrant, and conducts a search incident to arrest? Should any evidence found subsequent to this search be suppressed as fruit of an illegal search? Or, should the newly discovered arrest warrant serve as an intervening factor, allowing for the evidence to be admissible into court? The Supreme Court of Utah held in State v. Strieff, that a police officer’s discovery of an arrest warrant following an unlawful seizure is not an adequate intervening factor to dissipate any tainting of the evidence under the attenuation exception to the exclusionary rule.[1] However, the Supreme Court of Utah conceded that “ultimately, the United States Supreme Court may chart a different course” and that may very well be true.[2] On February 22, 2016, the United States Supreme Court heard oral arguments for Utah v. Strieff. [3] Amongst the debate of both sides, “Ferguson” was blaring.[4]

History

In December of 2006, Utah police officer, Douglas Fackrell, received an anonymous tip regarding potential drug trafficking at a Salt Lake City residence.[5] Over the course of a week, Officer Fackrell’s surveillance showed “short term traffic,” consistent with drug trafficking.[6] Officer Fackrell observed Edward Strieff leave the residence and stopped him for questioning.[7] Upon his request for identification, Officer Fackrell learned that Strieff had an outstanding warrant, arrested him, and searched him incident to arrest.[8] During this lawful search, Officer Fackrell discovered methamphetamine and drug paraphernalia on Strieff’s person.[9] Strieff was charged with unlawful possession and moved to suppress the evidence as fruit of an illegal investigatory stop.[10] The State conceded that the stop was unlawful for lack of reasonable suspicion, while asserting that the attenuation exception to the exclusionary rule applied and thus any evidence seized was admissible.[11]

The exclusionary rule suppresses the admission of evidence that is the fruit of an unlawful search and seizure.[12] However, there are three exceptions to the exclusionary rule, which allow for tainted evidence to be admitted: (1) the independent source doctrine, (2) the inevitable discovery doctrine, and (3) the attenuation exception.[13] The attenuation exception, at issue here, holds that “evidence that would not have been secured but for an unlawful search or seizure is nonetheless admissible if the legal nexus between the police misconduct and the challenged evidence is sufficiently attenuated that any tainting of the evidence is dissipated.”[14]

Analysis

The district court ruled for the State and denied Strieff’s motion to suppress, finding that although Fackrell did not have sufficient evidence to make the initial stop, the search incident to arrest itself was lawful and thus the evidence should be admitted.[15] The Utah Court of Appeals affirmed.[16] Upon further review, the Utah Supreme Court reversed, holding that the motion to suppress should be granted as the attenuation exception only applies to “cases involving intervening acts of a defendant’s free will.” Thus, discovery of the warrant by Officer Fackrell was not a proper intervening act and the attenuation exception does not apply in this case.[17]

The United States Supreme Court granted certiorari on October 1, 2015.[18] In Respondent’s Brief, Strieff argues that the Utah Supreme Court’s holding should be affirmed.[19] Respondent argues that allowing police to engage in unlawful seizures with the hopes of finding an outstanding warrant promotes the wrong incentives for police, increases the number of warrant checks without reasonable suspicion, intensifies distrust in the police, and undermines the exclusionary rule’s deterrent value for the police.[20] In response, the State of Utah argues that the Utah Supreme Court should be overruled as their restriction on the attenuation exception to acts of defendant’s free will is too narrow, that Officer Fackrell’s stop was not flagrantly unlawful, and that this holding undermines precedent.[21] It is hard to say which way the Supreme Court will sway, but either way, what could this mean for Ferguson?

In Respondent’s Brief, the initial consideration is focused on arrest warrants, specifically referencing Ferguson, and citing the Department of Justice’s Report on Ferguson.[22] In their report, the DOJ purports that more than “16,000 people had outstanding arrest warrants that had been issued by the court.”[23] When dividing this number amongst the population of Ferguson (approximately 21,000), it can be understood that over 75 percent of Ferguson residents have outstanding arrest warrants.[24] Thus, Respondent argues that in areas, such as Ferguson, where there are enormous numbers of outstanding arrest warrants, a type of policing whereby an unlawful seizure can lead to a lawful search with the surprising discovery of an arrest warrant could promote improper incentives.[25]

During oral arguments, Justice Sotomayor took note of this, asking, “what stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”[26] Justice Sotomayor continued with referencing Ferguson, “where 80 percent of the residents have minor traffic warrants out, there may be a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID; let me see your name. And let me hope, because I have an 80 percent chance that you’re going to have a warrant.”[27] Petitioner disagreed by stating that an officer can never count on finding a warrant and there must always be an inquiry on whether the initial stop was flagrant.[28] Moreover, in Petitioner’s reply brief, he called into question the cited statistics stating that Respondent’s conclusion that over 75 percent of Ferguson residents have arrest warrants is not logically confirmed.[29] For instance, this does not take into account whether there are multiple warrants issued for the same person or that each warrant names someone who resides in Ferguson.[30]

Without further investigation and information regarding the warrants issued in Ferguson, which was not provided in the DOJ’s report, it is hard to conclude whether the commonly cited “75-80 percent” number is correct. However, either way, Justice Kagan presents an alternative that is not only constitutionally correct, but also would improve the relationship between the police and communities like Ferguson: the officer should ask to cordially speak with the person without automatically demanding identification.[31]

Conclusion

Among the six Justices who offered commentary during the Strieff oral arguments, it seems as if the Court is deeply divided on this issue regarding the attenuation exception to the exclusionary rule.[32] Whether the court affirms or reverses the decision of the Utah Supreme Court, we can be certain that it will affect how the police do their jobs one way or the other, especially in areas where the amount of outstanding warrants is unbelievably high…areas such as Ferguson.

 

Amanda Porter*

Edited By: Tyler Winn

[1] State v. Strieff, 357 P.3d 532, 546 (Utah 2015).

[2] Id. at 547.

[3] Utah v. Strieff, Oyez, https://www.oyez.org/cases/2015/14-1373 (last visited Mar 23, 2016).

[4] Orin Kerr, Argument Analysis: Court Closely Divided on the Exclusionary Rule, SCOTUSblog (Feb. 22, 2016), http://www.scotusblog.com/2016/02/argument-analysis-court-closely-divided-on-the-exclusionary-rule/.

[5] Strieff, 357 P.3d at 536.

[6] Id.

[7] Id.

[8] Id.

[9] Id.

[10] Id. Under Terry v. Ohio, a police officer must have reasonable suspicion that someone has engaged in criminal activity in order to stop and briefly detain the suspect. Terry v. Ohio, 392 U.S. 1, 30-31 (1968).

[11] Strieff, 357 P.3d at 536-37.

[12] Id. at 538.

[13] Id.

[14] Id. at 540.

[15] Id. at 537.

[16] Id.

[17] Strieff, P.3d 357 at 546-47.

[18] Kerr, supra note 4.

[19] Brief for Respondent at 82-86, Utah v. Strieff, No. 14-1373 (U.S. argued Feb. 22, 2016).

[20] Id.

[21] Reply Brief for Petitioner at 5-37, Utah v. Strieff, No. 14-1373 (U.S. argued Feb. 22, 2016).

[22] Brief for the Respondent, supra note 19, at 9.

[23] United States Department of Justice, Investigation of the Ferguson Police Department 55 (2015).

[24] Kerr, supra note 4.

[25] Brief for the Respondent, supra note 19, at 19-20.

[26] Oral Argument at 2:34, Utah v. Strieff, No. 14-1373, available at https://www.oyez.org/cases/2015/14-1373.

[27] Id. at 3:03.

[28] Id. at 2:52.

[29] Reply Brief for Petitioner, supra note 21, at 13.

[30] Id.

[31] Oral Argument, supra note 26, at 6:24.

[32] Kerr, supra note 4

* Saint Louis University School of Law, Class of 2017.