Amidst a flurry of decisions, certioraris, and growing anticipation around high profile decisions, the nation’s high court dropped a 5-3 decision in favor of a police officer who committed an unlawful stop. And that lead to some strong words from the dissenting justices.
The case, Utah v. Strieff, dealt with the Fourth Amendment and police searches. The officer’s victory is more politically on the nose than SCOTUS usually cares to get, especially since it could have wide-reaching implications for people and movements calling for increased law enforcement scrutiny. Justice Sonia Sotomayor was blisteringly aggressive in her dissent, aiming to recoup some of the voice lost by those most frequently subjected to unlawful stops. But what other outlets do people have after a dissent?
Edward Strieff was arrested after an officer, who had been staking out a house on-and-off, after receiving a tip of possible narcotics activity there, stopped Strieff as he was leaving the house on his way to a convenience store. The officer learned that Strieff had an outstanding arrest warrant for a traffic violation, and when he was searched, the officer discovered methamphetamine and arrested Strieff—though the state has conceded that the officer lacked reasonable suspicion for the initial stop.
That issue pushed this case all the way to the Supreme Court, who ruled 5-3 on Monday in favor of the officer. According to the majority, although the evidence was recovered after an unconstitutional investigatory stop, Strieff was still subject to a valid arrest warrant. Essentially all the Supreme Court did was expand an existing exception to the “exclusionary rule” of the “attenuation doctrine,” which holds that something that happens after an illegal stop that renders the evidence admissible.
“The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Douglas Fackrell to arrest Strieff,” Justice Clarence Thomas wrote for the majority. “And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”
But where Thomas and four of his fellow justices see a single dot Justice Sotomayor sees a painting.
“It is no secret that people of color are disproportionate victims of this type of scrutiny,” Sotomayor said in her dissent, joined by Justice Ruth Bader Ginsburg. Though Strieff was white, Sotomayor argues that a decision against him will have greater consequences for people of color. “For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them.”
Sotomayor’s dissent is ferocious (as opinions go) from start to finish, name-checking Ta-Nehisi Coates, James Baldwin, and W.E.B. Du Bois to further connect the dots she believes her colleagues have overlooked. Throughout her dissent she details injustices suffered by those who have been unlawfully stopped, noting that they often “have severe consequences much greater than the inconvenience suggested by the name,” and that by giving law enforcement these instruments and ignoring the pattern of abuses in this respect they “risk treating members of our communities as second-class citizens.”
“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
Justice Elena Kagan, in her own dissent also joined by Ginsburg, also strongly dissented, noting (as Sotomayor did) that communities like those of Ferguson, Mo. had a population of about 21,000, 16,000 of whom had an outstanding warrants on file.
But the decision is officially on the books; the majority has spoken and it’s given police more power to stop people on the streets and question them, even if it’s unclear that there’s been any wrongdoing. Whether Thomas is right that the officer was “at most negligent” or Sotomayor is correct that it’s indicative of a greater pattern, the result is the same: The so-called exclusionary rule is relaxed. For now that means that many U.S. citizens will likely need to adopt the burden of properly knowing your rights in case of a police stop:
- You have the right to remain silent. If you choose to exercise this right say so out loud. You cannot be punished for refusing to answer questions, although in some states you are required to give you name if asked.
- You do not have to consent to a search of yourself or any of your belongings. Police can “pat down” your clothing if they suspect a weapon, and generally physical resistance is ill-advised. But you do have the right to refuse to consent to any further searches they conduct. Police can, however, search your car without your consent, if you are pulled over and they believe it contains evidence of a crime.
- Ask if you are under arrest. If you are, you deserve to know why, and ask for a lawyer (immediately). If you’re not, you are allowed to calmly and silently leave.
- Legal representation is an important part of the process: You should never need to sign anything, say anything, or decide anything without a lawyer present. If you can’t pay for a lawyer, you have the right to a free one. You do not owe any explanations or excuses for lawyering up.
- As the ACLU notes in their “Know Your Rights” tools: “Police misconduct cannot be challenged on the street.” They advise people to not physically resist officers or threaten to file a complaint, but instead use that time for making note (on paper if possible) of important things for filing a report later: Witnesses, photographs of injuries, badge and patrol car numbers, etc.
Obviously not all of this advice will work in the wake of Strieff; if you have an outstanding warrant, police are seemingly allowed to stop you and not have it be “poisonous fruit” in any sense. Knowing these principles won’t change your world the way this decision might. But maybe as citizens become more aware of their rights they can better advocate the courts from loosening them. Beyond that, it’s out of their hands.