A Suffocating Decision…

“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 Sonya Sotomayor, United States Supreme Court, Dissenting in Utah v. Strieff

Today in Utah v. Strieff, the United States Supreme Court proclaimed that an illegal stop can be legitimized by the discovery of a traffic warrant. Such a decision ignores the countless people killed by random police encounters and has profound implications on civil liberties. At a time when the often played song of “needless deaths linked to needless police encounters” is heard in every ear in America, the Supreme Court just turned up the volume.

In Utah v. Strieff, Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieffhad an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. The State of Utah never contested that the detention was unconstitutional.

The Supreme Court’s decision in Utah v. Strieff forgives unlawful detentions if police can produce a valid warrant or reason for the arrest that resulted from the illegal detention. That means police officers can stop citizens for no valid reason, search the citizens and if they find something illegal in the possession of those citizens and the citizens have a warrant (or other valid reason for the officer to make an arrest); offices can use that information against the citizens. Although such knowledge of an arrest warrant would not have been known to the police but for their engaging in the unconstitutional activity, the Supreme Court is willing to look past this police misconduct with the presence of a warrant. Such a decision undermines the exclusionary rule which has long safe guarded civil liberties and discouraged police misconduct.

The exclusionary rule is a constitutional principle in our country which holds that evidence collected or analyzed in violation of a person’s constitutional rights is normally inadmissible for a criminal prosecution in a court of law. The exclusionary rule is grounded in the Fourth Amendment and is intended to protect citizens from illegal searches and seizures. It is also designed to provide a remedy and strong disincentive, which is short of criminal prosecution, to prosecutors and police who illegally gather evidence in violation of the United States Constitution. Weakening the exclusionary rule dilutes one of the few barriers to police illegally detaining people to conduct unwarranted investigations. In recent years, unwarranted police investigations have had deadly consequences.

police E Davis post

Eric Garner was detained and killed by police officers in New York who arguably had no valid reason for his arrest. John Crawford was shot by police officers in a Walmart Store in Ohio after picking up a BB gun from a store shelf. Ezell Ford was shot in the back during an investigative stop in Los Angeles. Darrin Manning’s unprovoked “stop and frisk” encounter with Philadelphia police officers left him hospitalized with a ruptured testicle. Dante Parker died in Victorville, CA after being tased by police officers when they detained him because he was riding a bicycle and officers had reports of a suspect fleeing a robbery on a bicycle. An elderly man in Ohio was left in need of facial reconstructive surgery after police entered his home without a warrant to sort out a dispute about a trailer. Paul Castaway, a Native American man, was killed by police in Denver while holding a knife to his own neck. Neykeyia Parker was violently dragged out of her car and aggressively arrested in front of her young child for “trespassing” at her own apartment complex in Houston. And there are many more stories of police encounters which resulted in injury and/or death.

Since December 24, 2015, nearly 1000 people have been killed by the police in the United States. And although police advocates claim the frequent use of force is necessary to protect officers from a highly dangerous job, the statistics don’t seem to back this up. A report the Bureau of Labor Statistics released in 2014 show that being a police officer is not even among the country’s 10 most dangerous professions. Indeed, those statistics show that loggers, roofers, pilots and farmers are all more likely to be killed on the job than police. In 2015, only 123 officers were killed in the line of duty nationwide.

Yet, the Supreme Court ignores the danger to citizens by encouraging unwarranted police/citizen encounters. The unconstitutional conduct of the police in Utah v. Strieff was purposeful and deliberate. Officers set out to violate Strieff’s constitutional rights. And as Justice Kagan noted in dissent,

The majority’s misapplication of Brown’s three-part inquiry creates unfortunate incentives for the police—indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making—precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion—exactly the temptation the exclusionary rule is supposed to remove. Utah v. Strieff, 579 U.S. ____ (2016).

Thanks to the short sightedness of the majority of the justice on the Supreme Court, we will continue to hear the same old songs of police brutality.

For an index and links to the briefs and other important documents in the Utah v Strieff case, please see this link.

 

About Eric Davis

Eric J. Davis is an assistant public defender with the Harris County Public Defender's Office. He has been a criminal defense attorney since 1997 and was in private practice prior to joining the PD Office. Before his defense practice started, he spent 3 years as a prosecutor honing his trial skills. He has tried over 100 cases to verdict as lead counsel, winning over 80 percent of them. In 2006, Mr. Davis received an "Unsung Hero Award" from the Harris County Criminal Lawyers Association. In that same year, he received the "Man of the Year Award" from the Houston Business and Professional Women's Association, and helped free a man who had been wrongfully imprisoned for over 18 years. In 2016, Eric received the "Mentor of the Year Award" from HCCLA for his continuing commitment to training lawyers.

In 2003, Mr. Davis received a commendation from the Texas State Legislature for his service as Special Counsel to the Texas State Commission on Judicial Conduct. Mr. Davis was lead counsel for the Commission to remove a judge from office who was mistreating citizens by wrongfully jailing them and addressing them in an abusive manner in court.

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