The criminal defense attorney’s quiver contains several arrows, useful in defending clients against government overreach and constitutional violations. One of these arrows is the US Supreme Court case Terry v. Ohio. The main holding of that case is that an officer must have reasonable suspicion of criminal activity to perform an investigative stop of a person. Another useful arrow is from Segura v. United States. Generally, evidence obtained subsequent to a violation of someone’s Fourth Amendment right to be free of illegal searches and seizures is held to be inadmissible in a criminal trial. This is commonly referred to as the “exclusionary rule.”
However, the June 20, 2016, US Supreme Court decision in Utah v. Strieff seems to greatly limit the exclusionary rule. In Strieff, a police officer in Salt Lake City stopped Edward Strieff as he left a house allegedly suspected of containing drug activity and asked him for identification. The stop of Strieff was unquestionably and undeniably impermissible. However, in verifying the identification, it was learned that Strieff had an outstanding warrant for a traffic violation. The officer arrested Strieff on the warrant and searched him incident to that arrest – a constitutionally permissible search. The search of Strieff produced methamphetamine and drug paraphernalia for which he was charged with possession crimes.
Traditionally, the evidence found on Strieff would have been inadmissible in court, and the drug possession charges most likely would have been thrown out. However, this new Supreme Court case decided that the discovery of the warrant “attenuated” (or weakened) the connection between the unconstitutional stop and the evidence recovered through the permissible search incident to arrest. In doing so, the game has completely changed for criminal defendants, criminal defense attorneys, and the public at large.
In my opinion, the Utah v. Strieff decision forgives unconstitutional police intrusion on the freely moving public if that unconstitutional intrusion just so happens to lead to the discovery of an outstanding warrant or other probable cause to search and arrest that citizen. But that’s not how things are supposed to work. Our freedoms come first. It is the police’s job to only intrude on your freedoms when there is reasonable suspicion that criminal activity is afoot. Now the police are free to treat you, me, and everyone else on the street as a criminal first. Guilty until proven innocent.
Of course, Justice Clarence Thomas, writing the Court’s opinion, said that “flagrant” violations by police are still unforgivable. And Justice Thomas states (haphazardly) that police departments wouldn’t dare act flagrantly, for fear of being sued for violating an individual’s civil rights. But that shifts the burden to the defense to prove that an officer’s would-be unconstitutional actions are flagrant for reasons other than the mere fact the officer has violated the defendant’s constitutional right to be free of illegal searches and seizures.
Disregard whomever says “If you’re not doing anything illegal then you have nothing to hide.” That’s not how the system works. After this new opinion in Utah v. Strieff, having an experienced defense attorney working your case is more important than ever.
You can find the full text of the opinion here (click me).