The Supreme Court gets back to work this week. I will have more to say on the nomination fight as that matter proceeds, but for now, I wanted to focus on what is the beginning of an important few weeks at the Court.
On Monday, the Court hears arguments in Utah v. Strieff, a Fourth Amendment case that has not received significant attention yet but should. It could represent the next major case in the Roberts Court’s aggressive retreat from the Fourth Amendment exclusionary rule. This case presents the dilemma of applying the exclusionary rule in a situation where, according to the State, a police violation of the Fourth Amendment occurred but was not flagrant; applying the rule would not serve as a deterrent to similar conduct in the future; and where the search that yielded the criminal evidence was attenuated from the initial wrong. So, is this case a straightforward application of the attenuation exception from the Court’s 1963 decision in Wong Sun v. United States? Or should it be placed among the Court’s more recent cases – Hudson v. Michigan, Herring v. United States, Davis v. United States – emphasizing a cost-benefit analysis when applying the exclusionary rule?
Detective Fackrell, an officer in South Salt Lake, Utah with special drug enforcement training, went to a house to investigate drug activity. He needed to corroborate an anonymous tip that there was drug activity at the house. He watched the house for about three hours over the course of one week. He eventually stopped Strieff at a 7-11 parking lot after Strieff had exited the house (Detective Fackrell had not seen Strieff enter). During the investigative stop, the detective learned that Strieff had an outstanding arrest warrant. So Detective Fackrell arrested Strieff, and during a search incident to the arrest, the detective uncovered methamphetamine, a drug pipe, and a plastic scale containing white residue.
Utah actually conceded that the investigative stop was unlawful, because the detective did not yet have reasonable suspicion that Strieff had been involved in any criminal activity. But Utah also argued that the evidence from the arrest should not be suppressed, because when the detective learned of the arrest warrant, this created an intervening event that gave rise to the officer’s authority to make the arrest, and broke the chain of causation between the initial stop (which was unlawful) and the subsequent search. Although Utah prevailed on this argument at trial and on the first appeal from Strieff’s conviction (he entered a conditional guilty plea), the Utah Supreme Court disagreed and said that the attenuation exception does not apply where the intervening event is an arrest based on a outstanding warrant, where the officer learned of the warrant through an unlawful stop.
Orin Kerr has previewed the case and says that if the Court merely applies Wong Sun, Strieff has a strong case. I want to focus for a moment on the lineups, after Scalia’s passing. This could be one of those cases in which the Court becomes equally divided and may consider setting the case for re-argument. I think it is clear that the Chief Justice, and Justices Alito, Thomas, and Kennedy will likely vote to reverse. Those justices have consistently ruled to keep the exclusionary rule narrow. Justices Ginsburg and Breyer have consistently been on the other side of these kinds of cases.
That leaves us with Justices Kagan and Sotomayor, who have only limited exposure to this issue while at the Court. Both were with the majority in Davis, although Sotomayor wrote a separate concurrence in which she clarified that the outcome might be different if the rule of constitutional law that applied to the search was not so clear (in that case, officers conducted an unquestionably lawful car search under Belton v. New York, which was later altered by Arizona v. Gant, which the officers would have violated). Justice Kagan joined the Alito majority opinion. Consequently, it is fair to say that both Kagan and Sotomayor are on board with the cost-benefit/deterrence approach to the exclusionary rule. That cuts in Utah’s favor here, and if it holds, would make it likely that the outcome here is 6-2. But Davis, one could argue, was merely a sensible extension of United States v. Leon, which held that the exclusionary rule does not apply where there is good faith reliance on a warrant that is later invalidated. In both Davis and Leon, the initial police conduct was at least superficially lawful. That is not the case in Strieff, where even the State has conceded the constitutional violation.
In this sense, Strieff seems to be more like Herring, where the police conducted a search incident to arrest after learning of an outstanding warrant, which, unbeknownst to the arresting officers, turned out to be have been rescinded. So there was no basis for an arrest, but the Court refused to apply the exclusionary rule, saying that the official conduct there was merely negligent. But Strieff also bears a lot of similarities to Hudson, where Michigan conceded a violation of the knock-and-announce rule but the Court agreed that the drugs and gun uncovered in the subsequent search did not have to be suppressed. The Court said, among other things, that evidence need not be suppressed merely because the initial constitutional violation serves as the “but-for” cause of the subsequent search. Even a “but-for” cause can be too attenuated to justify suppression. In this way, Hudson marries the attenuation doctrine and the cost-benefit/deterrence analysis, which, as Orin explains, the Court could do in Strieff. By the way: the author of Hudson? Justice Scalia.
The question, then, is whether either Sotomayor or Kagan (or both) is willing to go along with a decision that will further chip away at one of the signature accomplishments of the Warren Court’s criminal procedure revolution – and do so in a case where the initial conduct was concededly unconstitutional, though not purposeful. If not, and the Court splits 4-4, the case will either be re-argued . . . or Utah loses.