Should courts suppress evidence obtained from a suspect after a police officer executes a valid arrest warrant, if the officer first illegally detained the suspect?
In 2006, an anonymous tip led Utah police officer Douglas Fackrell to investigate suspected drug activity at a house. After observing respondent Edward Strieff leave the house, Fackrell illegally detained him. During the stop, Fackrell learned Strieff had an outstanding arrest warrant. Fackrell arrested and searched Strieff, and found drugs and paraphernalia. In Strieff, the Supreme Court will decide whether evidence obtained incident to an illegal search should be admitted under the attenuation exception to the exclusionary rule. Generally, the exclusionary rule permits defendants to suppress evidence that has been obtained in violation of the Constitution. The attenuation exception, however, provides that evidence may be admissible if intervening circumstances have sufficiently weakened the taint of the original violation. Utah argues that the exclusionary rule only applies when it will deter future police misconduct. The state maintains that Fackrell did not flagrantly violate Strieff’s constitutional rights, and had a duty to arrest Strieff after discovering the arrest warrant. Accordingly, the rule would not deter misconduct. But Strieff contends the attenuation exception does not apply, because Fackrell could have foreseen that stopping Strieff illegally could have led to the discovery of a warrant. Strieff concludes that attenuation only applies when the “intervening event” that weakens the taint of Fackrell’s violation is unforeseeable. The Court’s decision could affect how police handle outstanding arrest warrants, and how judges balance Fourth Amendment protections with the need to admit relevant evidence.
Questions as Framed for the Court by the Parties
Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?
In December 2006, an anonymous tipster reported drug activity at a Utah residence. See State v. Strieff, 2015 UT 2, 3 (2015). In response to the tip, police officer Douglas Fackrell conducted “intermittent surveillance” of the residence. See id. He noticed “short term traffic” that was frequent enough to raise suspicion. See id. (internal quotation omitted). Fackrell concluded that traffic at the house was drug related, given its frequency and Fackrell’s observation that visitors would often leave within a couple of minutes of arriving . See id.
During this time, Fackrell observed respondent Edward Strieff leave the house and walk towards a convenience store. Fackrell detained Strieff, hoping to obtain information on what was going on inside the house. See Strieff, 2015 UT at 3. Fackrell identified himself as a police officer and asked for Strieff’s identification, which he provided. See id. Fackrell asked police dispatch to check the ID. See id. Dispatch alerted Fackrell that Strieff had outstanding warrants, so Fackrell arrested Strieff and searched him. See id. During the search, Fackrell found “drug paraphernalia” and a “baggie of methamphetamine” in Strieff’s pockets. See id.
Strieff was charged with unlawful possession of drug paraphernalia and methamphetamine in Salt Lake District Court. See Strieff, 2015 UT at 3. Strieff argued that the evidence obtained in the search was “fruit of an unlawful investigatory stop” and thus moved to suppress the evidence. The State of Utah conceded that Fackrell stopped Strieff without reasonable suspicion, but argued that “the exclusionary rule did not bar the evidence seized in the search because the attenuation exception to the exclusionary rule applied.” See id. at 4.
The district court denied Strieff’s motion. See Strieff, 2015 UT at 4. The court found that Fackrell had seen enough to infer that the house was involved in drug activity. Although Fackrell did not have reasonable suspicion to stop Strieff, the court concluded that the stop was “not a flagrant violation of the Fourth Amendment,” but rather a good-faith mistake. See id.
Subsequently, Strieff’s entered a conditional guilty plea, which reserved his right to appeal the denial of his motion to suppress the evidence from the search. See Strieff, 2015 UT at 4. Strieff appealed to the Utah Court of Appeals, which affirmed the district court. See id. The court of appeals found that the discovery of an outstanding warrant dissipated the unlawfulness of the detention. See id. Strieff then filed a petition for certiorari to the Utah Supreme Court. See id. The Utah Supreme Court granted certiorari and reversed both the district court and the court of appeals. See id. The Utah Supreme Court held that evidence obtained incident to detention was unlawfully discovered, and that attenuation should only apply to cases that involve intervening acts of a defendant made in free will. See id. at 20. The State of Utah petitioned the U.S. Supreme Court for writ of certiorari, which the Court granted on October 1, 2015.
The parties disagree about two primary issues: First, how the attenuation exception applies to this case; and second, what role pre-existing warrants play in justifying application of the attenuation exception.
IS THE EVIDENCE ADMISSIBLE UNDER THE ATTENUATION EXCEPTION?
Utah asserts that the attenuation exception to the exclusionary rule allows the Court to admit the evidence that Fackrell seized incident to Strieff’s lawful arrest. See Brief for Petitioner at 10. Utah explains that the exclusionary rule’s only purpose is to discourage future, unlawful police action. Courts apply the rule when suppression would “appreciably deter” misconduct. See id. at 10–11. Accordingly, the rule applies when the benefits of preventing misconduct outweigh the high costs of suppressing relevant evidence. See id. at 11–13. Utah argues that evidence is admissible under the attenuation exception when an intervening action has weakened the taint of the unlawful conduct such that suppression would not “appreciably deter future police misconduct.” See id. at 14. Utah contends that the attenuation analysis has two relevant elements: the nature of the intervening event, and the flagrancy of the initial violation. See id. at 15.
Utah concludes that suppressing the evidence in this case would not significantly deter future police misconduct. See Brief for Petitioner at 21, 29, 32. First, Utah claims that the nature of the intervening event—the discovery of an arrest warrant—has no deterrent purpose. See id. at 21. Police have a legal duty to arrest a person subject to a warrant, and the Fourth Amendment permits searches incident to an arrest. Accordingly, suppression when a warrant exists would not alter police behavior. See id. at 21–22. Second, Utah asserts that suppression will not appreciably deter future misconduct because Fackrell’s investigatory stop was not flagrantly unlawful. See id. at 29. The Utah Supreme Court conceded Fackrell’s stop was “a single misstep over the constitutional boundary” rather than an obvious violation. See id. at 31. When this misstep led to the discovery of the arrest warrant, Fackrell still had a duty to arrest Strieff, a duty Fackrell would abide regardless of exclusion concerns. See id. at 31–32.
Nevertheless, Strieff maintains that the evidence that Fackrell seized from Strieff is inadmissible. See Brief for Respondent at 22. Strieff contends that the attenuation exception, which uses the tort law concept of proximate cause, does not apply to “remote and unforeseeable consequences” of constitutional violations. See id. at 24. However, when police conduct routine warrant checks during unlawful stops, Strieff argues that the discovery of a warrant is an immediate and foreseeable consequence of the stop and the warrant check. See id. at 22, 25. Therefore, Strieff concludes, the discovery of a warrant does not weaken the “taint” of the constitutional violation, the illegal stop. See id. at 23–25. Strieff contends that the Court has identified three elements in the attenuation analysis, which support his conclusion. See id. at 26. First, Strieff asserts that the illegal stop and the following search are temporally proximate (i.e., close together in time), which cuts against Utah’s argument that “unconstitutional taint” dissipated before the search. See id. at 26–27. Second, no intervening circumstances dissipated the taint of the unlawful stop. Intervening circumstances must be unforeseeable events that are unrelated to an officer’s unlawful conduct. See id. at 28–30. Third, the police misconduct was flagrant, because Fackrell’s decision to detain Strieff and run a warrant check was made without reasonable suspicion and for a purely investigatory purpose. See id. at 32–34.
Strieff disputes Utah’s conclusion that suppression under these circumstances would not deter future police misconduct. See Brief for Respondent at 39–40. Strieff asserts that the public’s interest in not being illegally detained is precisely what suppression aims to protect. See id. Strieff maintains that in some jurisdictions, police run routine warrant checks on people without reasonable suspicion of criminal activity. See id. at 49. Without the exclusionary rule to deter such misconduct, Strieff contends that these officers would continue to violate the Fourth Amendment. See id. at 48–49.
WHAT ROLE SHOULD A PRE-EXISTING WARRANT PLAY IN ATTENUATION ANALYSIS?
The Utah Supreme Court suggested that attenuation applies only when the intervening event is an independent act of the suspect’s free will. But Utah claims that the attenuation exception applies to scenarios other than those involving a suspect’s free will. See Brief for Petitioner at 32–33. Utah notes that the U.S. Supreme Court has previously held evidence admissible under the attenuation exception when that evidence had nothing to do with a suspect’s free will, including live-witness testimony by persons other than the suspect and a lineup identification of the suspect after an illegal arrest. See id. at 34. Utah contends that the attenuation analysis must be evaluated on a case-by-case basis that specifically considers how suppression will discourage misconduct. See id. at 35.
Strieff maintains that the Utah Supreme Court was correct in its conclusion that the intervening discovery of an arrest warrant did not justify attenuation. See Brief for Respondent at 22, 31–32. Strieff acknowledges that the discovery of an arrest warrant could be an intervening circumstance under the attenuation exception, but only if the discovery of the warrant is not a foreseeable consequence of the stop. See id. at 31. For example, Strieff contends that if a second officer were to unexpectedly drive by and announce that Strieff has an arrest warrant, or if Strieff were to voluntarily admit to having an arrest warrant, these unforeseeable consequences could qualify as intervening circumstances. See id. at 31–32. Accordingly, Strieff concedes that the Utah Supreme Court approached the issue too narrowly when it concluded that the attenuation exception only applies when the intervening event is an independent act of the defendant’s free will. See id. at 29. But Strieff concludes that the discovery of an arrest warrant during a routine warrant check is exactly what one would expect to happen. See id. at 31–32.
The Court will consider whether courts should suppress evidence obtained from a person whom was unlawfully stopped but later found to have an outstanding warrant. See Brief for Petitioner, State of Utah at 10. The answer may affect how police approach detentions, and how courts balance admissible evidence and individual protections under the Fourth Amendment. See Brief of Amicus Curiae Criminal Justice Legal Foundation (hereinafter “CJLF”), in Support of Petitioner at 26–29, 22; Brief of Amicus Curiae American Civil Liberties Union and the National Association of Criminal Defense Lawyers (hereinafter “ACLU”), in Support of Respondent at 4, 10–11, 16.
CURBING POLICE MISCONDUCT
Some argue that suppressing the evidence obtained during Fackrell’s search would not curtail police misconduct. See Brief of State of Michigan and Twenty-Nine Other States, in Support of Petitioner at 11–12; Brief of United States, in Support of Respondent at 29. Michigan and twenty-nine other states suggest that police will not abuse the use of outstanding warrants. Police cannot stop individuals without probable cause. And the majority of jurisdictions exclude evidence obtained from individuals whom police stopped solely to check for outstanding arrest warrants. See Brief of State of Michigan and Twenty-Nine Other States at 13. Here, amici argue, excluding Fackrell’s evidence would not prevent Fourth Amendment abuses, because the lower courts determined Fackrell acted in good faith, or at least not in flagrant disregard of the law. See id. at 16; See Brief of CJLF at 22.
But amici supporting Strieff argue that applying the exclusionary rule will limit police aggression. See Brief of ACLU at 10–11; see also Brief of Southwestern Law Student Tracy E. Labrusciano, et al. (“Labrusciano”), in Support of Respondent at 22. The ACLU argues that admitting evidence from illegal detainments creates incentives for police to conduct improper stops under the guise of outstanding warrant checks. See Brief of ACLU at 10; see also Brief of Labrusciano at 22. The ACLU explains that police would “have nothing to lose” from conducting an illegal search if they discover an outstanding warrant; if they do not, then they can simply release their suspects. And a group of Southwestern Law School students and professors suggest that deterrence is most important when the incentive to commit a forbidden act is high—in this case, conducting an illegal search with high potential to garner useful evidence. See Brief of Labrusciano at 22.
BALANCING ADMISSIBLE EVIDENCE WITH FOURTH AMENDMENT PROTECTIONS
The Criminal Justice Legal Foundation (“CJLF”) argues that admitting evidence in this case, even if improperly obtained, best serves the interests of society. See Brief of CJLF at 22–24. The CJLF contends that if police obtain valuable evidence, it should be admitted except in instances of the most blatant constitutional violations. See id. at 25–26.
But the ACLU maintains that Fourth Amendment protections outweigh the societal costs of suppressing otherwise admissible evidence. See Brief of ACLU at 16. The cost of suppressing evidence is low because the exclusionary rule does not prevent police from using evidence that they may have otherwise obtained legally. See id. Rather, the rule only excludes evidence discovered in an unlawful detainment. See id. at 16–17. The United States suggests that illegal stops sometimes produce “critical evidence,” such as firearms. But by way of counterexample, the ACLU notes that “99.9% of pedestrian stops” in New York City’s stop-and-frisk program did not turn up firearms. See id. at 17.
The Court will decide whether the attenuation exception’s scope spans far enough to reach a pre-existing warrant scenario. See Brief for Petitioner at 10, 32; Brief for Respondent at 22, 31–32. The decision may affect how police check for outstanding arrest warrants and how judges balance Fourth Amendment protections with admitting relevant evidence. See Brief of Amicus Curiae of the Criminal Justice Legal Foundation, in Support of Petitioner at 26–29, 22; Brief of Amicus Curiae of the American Civil Liberties Union and the National Association of Criminal Defense Lawyers, in Support of Respondent at 4, 10–11, 16.
Ben Winslow, U.S. Supreme Court Will Hear Utah Case Involving Drug Search, Fox 13 (Oct. 1, 2015).