{"id":23300,"date":"2016-08-10T03:59:33","date_gmt":"2016-08-10T08:59:33","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=23300"},"modified":"2016-08-11T07:20:25","modified_gmt":"2016-08-11T12:20:25","slug":"utah-v-strieff-2016-supplement-%c2%a7-10-02","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=23300","title":{"rendered":"Utah v. Strieff, 2016 Supplement, \u00a7 10.02; maybe overcoming Strieff"},"content":{"rendered":"

Utah v. Strieff<\/a> is discussed in six sections in the 2016 supplement, primarily in \u00a7 10.02: <\/p>\n

\u00a7 10.02 on the attenuation doctrine
\nPage 10-12 Add at end of section:<\/strong><\/p>\n

In Utah v. Strieff,63<\/sup> the officer had been tipped that drugs were being sold out of a particular house, and the police had been watching it, noticing the short stay of the visitors. Strieff came out of the house after his short stay, and the officer followed and stopped him just to see what he had to say for himself. The officer asked Strieff for his identification, and then ran it, as department policy dictated, finding a warrant which led to Strieff\u2019s search incident and finding methamphetamine and drug paraphernalia.64<\/sup> The stop was conceded by the state to be unreasonable and without reasonable suspicion, but the Utah Court of Appeals found the evidence admissible because the finding of the warrant happened as a matter of course, searching for warrants wasn\u2019t the purpose of the stop, and the discovery of the warrant was not the officer exploiting the primary illegality of the stop.65<\/sup> The Utah Supreme Court reversed holding that the Supreme Court\u2019s attenuation cases require that there be an intervening act of the defendant\u2019s free will.66<\/sup>
\n<\/p>\n

63. Utah v. Strieff, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016).
\n64. Strieff, 136 S. Ct. at 2060.
\n65. State v. Strieff, 2012 UT App 245, 716 Utah Adv. Rep. 26, 286 P.3d 317 (2012), rev\u2019d 2015 UT 2, 778 Utah Adv. Rep. 48, 357 P.3d 532 (2015), rev\u2019d Utah v. Strieff, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016).
\n66. State v. Strieff, 2015 UT 2, at \u00b6 4, 357 P.3d at 536:<\/p>\n

Our holding is rooted in our attempt to credit the terms of the attenuation doctrine as prescribed in the Supreme Court’s opinions, while also respecting the parallel doctrine of inevitable discovery. Thus, we read the Court\u2019s attenuation cases to define the conditions for severing the proximate causal connection between a threshold act of police illegality and a subsequent, intervening act of a defendant\u2019s free will. And in the distinct setting of both unlawful and then lawful police activity, we deem the inevitable discovery doctrine to control. Because this case involves no independent act of a defendant\u2019s free will and only two parallel lines of police work, we hold that the attenuation doctrine is not implicated, and thus reverse the lower court\u2019s invocation of that doctrine in this case.\n<\/p><\/blockquote>\n<\/blockquote>\n

The Supreme Court reversed,67<\/sup> rejecting the holding below that only an act of free will of the defendant was required.68<\/sup> Instead, the Court looked to the three factors of Brown v. Illinois,69<\/sup> to \u201cguide our analysis\u201d:<\/p>\n

The three factors articulated in Brown v. Illinois, 422 U.S. 590 (1975), guide our analysis. First, we look to the \u201ctemporal proximity\u201d between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. Id., at 603. Second, we consider \u201cthe presence of intervening circumstances.\u201d Id., at 603-604. Third, and \u201cparticularly\u201d significant, we examine \u201cthe purpose and flagrancy of the official misconduct.\u201d Id., at 604. In evaluating these factors, we assume without deciding (because the State conceded the point) that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. And, because we ultimately conclude that the warrant breaks the causal chain, we also have no need to decide whether the warrant’s existence alone would make the initial stop constitutional even if Officer Fackrell was unaware of its existence.70<\/sup>\n<\/p><\/blockquote>\n

67. Utah v. Strieff, 136 S. Ct. 2056, 195 L. Ed. 2d 400 (2016).
\n68. Strieff, 136 S. Ct. at 2061.
\n69. Brown v. Illinois, 422 U.S. 590, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975)
\n70. Strieff, 136 S. Ct. at 2062.\n<\/p><\/blockquote>\n

The first Brown factor of temporal proximity was a given, and it favored suppression.71<\/sup> The other two, however, according to the Court,72<\/sup> not so:<\/p>\n

In contrast, the second factor, the presence of intervening circumstances, strongly favors the State. In Segura, 468 U.S. 796, the Court addressed similar facts to those here and found sufficient intervening circumstances to allow the admission of evidence. There, agents had probable cause to believe that apartment occupants were dealing cocaine. Id., at 799-800. They sought a warrant. In the meantime, they entered the apartment, arrested an occupant, and discovered evidence of drug activity during a limited search for security reasons. Id., at 800-801. The next evening, the Magistrate Judge issued the search warrant. Ibid. This Court deemed the evidence admissible notwithstanding the illegal search because the information supporting the warrant was \u201cwholly unconnected with the [arguably illegal] entry and was known to the agents well before the initial entry.\u201d Id., at 814.
\nSegura, of course, applied the independent source doctrine because the unlawful entry \u201cdid not contribute in any way to discovery of the evidence seized under the warrant.\u201d Id., at 815. But the Segura Court suggested that the existence of a valid warrant favors finding that the connection between unlawful conduct and the discovery of evidence is \u201csufficiently attenuated to dissipate the taint.\u201d Ibid. That principle applies here.<\/p>\n

In this case, the warrant was valid, it predated Officer Fackrell\u2019s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. \u201cA warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.\u201d United States v. Leon, 468 U.S. 897, 920, n. 21 (1984) (internal quotation marks omitted). Officer Fackrell\u2019s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell\u2019s safety. See Arizona v. Gant, 556 U.S. 332, 339 (2009) (explaining the permissible scope of searches incident to arrest).<\/p>\n

Finally, the third factor, \u201cthe purpose and flagrancy of the official misconduct,\u201d Brown, supra, at 604, also strongly favors the State. The exclusionary rule exists to deter police misconduct. Davis v. United States, 564 U.S. 229, 236-237 (2011). The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence\u2014that is, when it is purposeful or flagrant.<\/p>\n

Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith [factual] mistakes. \u2026 But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff\u2019s Fourth Amendment rights.73<\/sup><\/p>\n<\/blockquote>\n

Further, \u201c[t]he discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell\u2019s illegal stop reflected flagrantly unlawful police misconduct.\u201d74<\/sup><\/p>\n

71. Strieff, 136 S. Ct. at 2062.
\n72. Writing for SCOTUSBlog, one influential commentator merely said he was \u201cunpersuaded\u201d by this logic. Orin Kerr, \u201cOpinion analysis: The exclusionary rule is weakened but it still lives,\u201d SCOTUSBlog.com (June 20, 2016),
\nhttp:\/\/www.scotusblog.com\/2016\/06\/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives\/. This author, however, finds it utterly counterintuitive at best, disingenuous at worst, and defying of all common sense.
\n73. Strieff, 136 S. Ct. at 2062-63.
\n74. Strieff, 136 S. Ct. at 2063.\n<\/p><\/blockquote>\n

Strieff\u2019s arguments that the purpose of the illegal stop was to find evidence wasn\u2019t \u201cpersuasive.\u201d75<\/sup> Essentially, the Court wasn\u2019t willing to find a stop clearly without reasonable suspicion was \u201cflagrant,\u201d76<\/sup> casting it as mere isolated negligence,77<\/sup> nor was it willing to find that the likelihood there will be warrants on people would be used by the police just to justify their search incident.78<\/sup><\/p>\n

75. Strieff, 136 S. Ct. at 2064.<\/p>\n

It was far more persuasive that stops would always result in running \u201cwants or warrants\u201d and then an old warrant automatically results in a search incident, which is where the dissent found the stop unreasonable. See notes 79-83.<\/p>\n

76. Strieff, 136 S. Ct. at 2064:<\/p>\n

Strieff argues, moreover, that Officer Fackrell’s conduct was flagrant because he detained Strieff without the necessary level of cause (here, reasonable suspicion). But that conflates the standard for an illegal stop with the standard for flagrancy. For the violation to be flagrant, more severe police misconduct is required than the mere absence of proper cause for the seizure. \u2026 Neither the officer\u2019s alleged purpose nor the flagrancy of the violation rise to a level of misconduct to warrant suppression.<\/p>\n

And see \u00a7 10.04 on the attenuated connection requirement.<\/p>\n

77. Strieff, 136 S. Ct. at 2063.
\n78. Strieff, 136 S. Ct. at 2064:<\/p>\n

Second, Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think that this outcome is unlikely. Such wanton conduct would expose police to civil liability. See 42 U.S.C. \u00a7 1983; Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978); see also Segura, 468 U.S., at 812. And in any event, the Brown factors take account of the purpose and flagrancy of police misconduct. Were evidence of a dragnet search presented here, the application of the Brown factors could be different. But there is no evidence that the concerns that Strieff raises with the criminal justice system are present in South Salt Lake City, Utah.<\/p><\/blockquote>\n

The problem with the Court\u2019s rationale is that it assumes that a dragnet for people would occur, but that\u2019s not the point. The five members of the majority obviously have never heard dashcam and bodycam audio we practitioners regularly see and hear where the police voice their intention to their partner or other officers to run the driver\u2019s license just to help in the roust they are performing. The police know exactly what they are doing, and the finding of the arrest warrant is not just happenstance\u2012it is their intention, and they run warrants hoping that they will find something because they know that will lead to an arrest on the warrant which will likely lead to an inventory (since Gant prohibits a search incident) when the vehicle is towed on the arrest.\n<\/p><\/blockquote>\n

Justices Sotomayor, Ginsburg, and Kagan dissented, dismantling the majority\u2019s holding.79<\/sup> Of course, Officer Frackell was going to find a warrant if one existed because it was department policy to run warrants as a matter of course, so there simply is no possible intervening circumstance whatsoever. 80<\/sup> Indeed, the illegal stop was the proximate cause of finding the outstanding warrant.81<\/sup> \u201cThe majority\u2019s misapplication of Brown\u2019s three-part inquiry creates unfortunate incentives for the police\u2014indeed, practically invites them to do what Fackrell did here.\u201d82<\/sup><\/p>\n

79. Strieff, 136 S. Ct. at 2064-71 (Sotomayor and Ginsburg, except for Part IV) & 2071-74 (Kagan and Ginsburg).
\n80. Strieff, 136 S. Ct. at 2073 (Sotomayor, J., dissenting). A mere outstanding warrant thus cannot be an intervening circumstance since the officer runs them knowing the purpose.
\n81. Strieff, 136 S. Ct. at 2073 (Sotomayor, J., dissenting):<\/p>\n

In other words, the department\u2019s standard detention procedures\u2014stop, ask for identification, run a check\u2014are partly designed to find outstanding warrants. And find them they will, given the staggering number of such warrants on the books. See generally ante, at 2067-2068 (SOTOMAYOR, J., dissenting). To take just a few examples: The State of California has 2.5 million outstanding arrest warrants (a number corresponding to about 9% of its adult population); Pennsylvania (with a population of about 12.8 million) contributes 1.4 million more; and New York City (population 8.4 million) adds another 1.2 million. See Reply Brief 8; Associated Press, Pa. Database, NBC News (Apr. 8, 2007), online at http:\/\/goo.gl\/3Yq3Nd (as last visited June 17, 2016); N.Y. Times, Oct. 8, 2015, p. A24. So outstanding warrants do not appear as bolts from the blue. They are the run-of-the-mill results of police stops\u2014what officers look for when they run a routine check of a person\u2019s identification and what they know will turn up with fair regularity. In short, they are nothing like what intervening circumstances are supposed to be. Strike three.\n<\/p><\/blockquote>\n

82. Strieff, 136 S. Ct. at 2069 (Sotomayor, J., dissenting).<\/p>\n

Comment: It doesn\u2019t just invite what happened there: It virtually sanctions fishing for warrants unless the defense can show some pattern or get an admission from the officers that\u2019s what they were doing. See just the first three paragraphs of her dissent, at 2069-70:<\/p>\n

Writing only for myself, and drawing on my professional experiences, I would add that unlawful \u201cstops\u201d have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.<\/p>\n

Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants\u2014so long as he can point to a pretextual justification after the fact. Whren v. United States, 517 U.S. 806, 813 (1996). That justification must provide specific reasons why the officer suspected you were breaking the law, Terry, 392 U.S., at 21, but it may factor in your ethnicity, United States v. Brignoni-Ponce, 422 U.S. 873, 886-887 (1975), where you live, Adams v. Williams, 407 U.S. 143, 147 (1972), what you were wearing, United States v. Sokolow, 490 U.S. 1, 4-5 (1989), and how you behaved, Illinois v. Wardlow, 528 U.S. 119, 124-125 (2000). The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction\u2014even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U.S. 146, 154-155 (2004); Heien v. North Carolina, 574 U.S. \u2014 (2014).<\/p>\n

The indignity of the stop is not limited to an officer telling you that you look like a criminal. See Epp, Pulled Over, at 5. The officer may next ask for your \u201cconsent\u201d to inspect your bag or purse without telling you that you can decline. See Florida v. Bostick, 501 U.S. 429, 438 (1991). Regardless of your answer, he may order you to stand \u201chelpless, perhaps facing a wall with [your] hands raised.\u201d Terry, 392 U.S., at 17. If the officer thinks you might be dangerous, he may then \u201cfrisk\u201d you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may \u201c\u2018feel 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.\u2019\u201d Id., at 17, n. 13. (bracketed material added)\n<\/p><\/blockquote>\n<\/blockquote>\n

And, the dissent is correct: the majority seemingly misapplied Brown because Brown applies a totality test,83<\/sup> or did it? Can it be said instead that this really is a totality analysis by another name, but the majority\u2019s disdain for the exclusionary rule84<\/sup> is their thumb on the scale?<\/p>\n

83. Brown, 422 U.S. at 603-04, quoted in the text, supra, at 10-6:<\/p>\n

The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U.S. 356, 365 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant.\n<\/p><\/blockquote>\n

As noted by Kerr, note 72, supra, no case since Brown applied a \u201cthree factor\u201d test until now. <\/p>\n

84. See \u00a7 7.06[2].<\/p><\/blockquote>\n

It is submitted that it literally cannot be said with a straight face that the officer acted here in good faith. He absolutely had to know that the stop was utterly without reasonable suspicion and obviously unreasonable as a stop on a mere hunch, and it isn\u2019t even a close question. If this, however, is now the Court\u2019s standard, then the Court has set an extremely high bar for what is \u201cthe purpose and flagrancy of the official misconduct\u201d that the defense will find almost impossible to meet. On a pure totality review, that one immutable fact should have ended the inquiry in favor of personal liberty, not government overreach.85<\/sup><\/p>\n

85. One can now see states differing and finding a violation of state law or the state constitution to find no attenuation. See generally Chapter 11 on independent state grounds.\n<\/p><\/blockquote>\n

And that is the key to overcoming Strieff: Inquire into the officer\u2019s intent and lack of mere \u201cnegligence.\u201d Once negligence is overcome, the rest might fall into place and there is no attenuation.<\/p>\n","protected":false},"excerpt":{"rendered":"

Utah v. Strieff is discussed in six sections in the 2016 supplement, primarily in \u00a7 10.02: \u00a7 10.02 on the attenuation doctrine Page 10-12 Add at end of section: In Utah v. Strieff,63 the officer had been tipped that drugs … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[75],"tags":[],"class_list":["post-23300","post","type-post","status-publish","format-standard","hentry","category-attenuation"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/23300","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=23300"}],"version-history":[{"count":6,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/23300\/revisions"}],"predecessor-version":[{"id":23319,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/23300\/revisions\/23319"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=23300"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=23300"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=23300"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}