The Downfall Of The Fourth Amendment: How The Latest Ruling By The Supreme Court Weakens The Exclusionary Rule And Our Privacy

Brittany Ehrenman
  
With a recent Fourth Amendment ruling from the Supreme Court of the United States, it seems that our privacy, and the Fourth Amendment, are becoming less protected.[i]  On June 20, 2016, the Supreme Court of the United States may have chipped away what little remains of our right’s governed by the Fourth Amendment.[ii]  The Court held, in Utah v. Strieff,[iii] that evidence found from an unlawful police stop would not be inadmissible in court, so long as the initial stop and evidence are attenuated by an active arrest warrant.[iv]

In Strieff, the police department received an anonymous tip that drugs were being sold out of a residential home.[v]  Officer Fackrell surveyed the home, for about a week, and observed guests leaving the house within minutes of arriving.[vi]  Edward Strieff was a visitor of the suspected home and was seen leaving and walking towards a convenience store.[vii]  Officer Fackrell stopped and detained Strieff and questioned his activities inside the home.[viii]  The Officer learned that Strieff had an outstanding arrest warrant for a traffic violation and subsequently arrested him.[ix]  When Strieff was searched, incident to the arrest warrant, a baggie of methamphetamine and drug paraphernalia were found.[x]  Strieff was charged with unlawful possession of the drugs found in his pocket after the search.[xi]

Strieff moved to suppress the evidence found against him, arguing that evidence found from an illegal search would be considered fruit of the poisonous tree, therefore, inadmissible in court.[xii]  Even though it was uncontested that the Officer lacked reasonable suspicion for the stop itself, the Supreme Court held that the exclusionary rule should not be used and that the evidence would be allowed to come in.[xiii] 

The protection that the Supreme Court has lessened in their ruling in Strieff was initially created to provide a safeguard that benefits everyone from police searching innocent people.[xiv]  It is not often thought about but anyone can acquire an arrest warrant, especially for such minor offenses.[xv]  Not all warrants that are given out have to do with criminally dangerous actions, many are just minor infractions, such as traffic violations.[xvi]  Arrest warrants are now so ordinary that they may be unbeknownst to the person it was written for.[xvii]  One woman in Ferguson was not aware that she had a warrant, from an old ticket for an expired car registration, until she tried to renew her license.[xviii]  Additionally, another woman was subject to being arrested at any moment because of a ticket she could never afford to pay for keeping an old car parked in a driveway.[xiv]  Forgetting to pay a traffic ticket could result in an arrest warrant.[xx]  Once a ticket has been ignored, a court has the ability to issue a misdemeanor, then an arrest warrant.[xxi]  Such minor violations can develop into arrest warrants for people; almost one hundred tickets in Ferguson were distributed out for things like having an overgrown yard of grass, playing loud music, or walking in the road inappropriately.[xxii]  Now, after the Strieff holding, if there is a pending arrest warrant out for you, for something so trifling as overgrown grass, it can justify an unlawful stop by the police and anything found on your person at the time of the stop can be used again you in a court of law.[xxiii]

Racial profiling can also occur with frequent police stops as well.[xxiv]  Justice Sotomayor’s fear is that the stopping of an individual will not be based on whether police had probable cause but rather on physical traits, like what someone is wearing or based on ethnicity.[xxv]  She stresses how hazardous this Court’s ruling can now be on minorities, specifically the Black and Hispanic communities.[xxvi]  More often than not, unfortunately, people of color fall victim more times than white people to suspicionless stops and searches.[xxvii]  The reality is that, although everyone should be considered innocent until proven guilty, most people aren’t treated as such.[xxviii]  Even though most officers do conduct their actions in good faith and with no malicious intent, the numbers speak for themselves.[xxix]  In a 2011 census for New York City, almost 87% of people who were stopped were Black or Latino descent.[xxx]  Going back to Missouri, specifically the town of Ferguson, 92% of the arrest warrants that were issued in the year 2013 were against African Americans.[xxxi]  In Philadelphia in 2015, 77.06% of the pedestrians who were stopped on the streets were Black or Latino, sadly demonstrating that Justice Sotomayor’s fears of what is to come of this Courts holding has already been taking place.[xxxii]  African Americans and Latinos have been racially profiled more frequently than white people.[xxxiii]  With this new Court holding it may very well disproportionally impact this specific demographic even more.[xxxiv]  It has already been demonstrated that police officers have been stopping people on the streets for questioning and not documenting those encounters, which creates skepticism in official counting of police stops in general.[xxxv]  Knowing this information, and looking at statistics of stops in the future after this Court’s holding, there is no measuring what is accurately being documented.[xxxvi]  As Justice Sotomayor asserts “it is no secret that people of color are disproportionate victims of this type of scrutiny.”[xxxvi]  If these police stops have already been occurring than this Court ruling may excuse minority discriminatory stops more often.[xxxvii]

Since our Second Amendment rights seem to always be of topical concern to the population, why should our Fourth Amendment rights be any different?  This ruling should be of concern to everyone since the Fourth Amendment provides a safeguard for all of our privacy rights. Because of the Court’s holding, evidence obtained by police officers from unlawful stops will not matter at all, so long as a warrant is present.[xxxix]  This ruling could be a demonstration as to when people speak of the justice system they say that it is corrupt.[xxxx]  We have policies and procedures set forth that the Court system seems to finds ways to dishonor and destroy so there is less and less protection for society.  We do not want to continue tainting the courts by allowing fruits in from unlawful searches. I am curious to see what is to come and what justifications and excuses will be added to another right we, as citizens, possess. What protections in the future will be taken away from us next?

[i].              See Orin Kerr, Opinion Analysis:  The Exclusionary Rule is Weakened but it Still Lives, Scotusblog (June 20, 2016, 9:35 PM), http://www.scotusblog.com/2016/06/opinion-analysis-the-exclusionary-rule-is-weakened-but-it-still-lives/; Matt Ford, Justice Sotomayor’s Ringing Dissent, Atlantic (June 20, 2016), http://www.theatlantic.com/politics/archive/2016/06/utah-streiff-sotomayor/487922/.
[ii].              Utah v. Strieff, No. 14-1373, slip op. (U.S. June 20, 2016).
[iii].             No. 14-1373, slip op. (U.S. June 20, 2016).
                [iv].             Id. at 1.
[v].              Id. at 2.
[vi].             Id.
[vii].            Id.
                [viii].           Strieff, No. 14-1373, slip op. at 2.
[ix].             Id.
                [x].              Id.
[xi].             Id.
[xii].            Id.
[xiii].           Strieff, No. 14-1373, slip op. at 1–2.
[xiv].           U.S. Const. amend. IV.
[xv].            See Strieff, No. 14-1373, slip op. at 7 (Sotomayor, J., dissenting).
[xvi].           Id.
[xvii].          See Blake Ellis & Melanie Hicken, One Year Later:  Ferguson is Still Pumping out Arrest Warrants, CNN Money (Aug., 06, 2015, 1:41 PM), http://money.cnn.com/2015/08/06/news/ferguson-arrest-warrants/.
[xviii].         Ellis & Hicken, supra note 17.
[xix].           Id.
[xx].            Kat Saks, Ignoring a Traffic Ticket? Be Prepared to Pay the Consequences, DMV (July 10, 2012),
http://www.dmv.org/articles/ignoring-a-traffic-ticket-be-prepared-to-pay-the-consequences.
[xxi].           Saks, supra note 20.
[xxii].          Ellis & Hicken, supra note 17.
                [xxiii].         See Utah v. Strieff, No. 14-1373, slip op. at 1 (U.S. June 20, 2016).
[xxiv].         Lynn Langton & Matthew Durose, Police Behavior During Traffic and Street Stops, 2011, U.S. Dep’t of Justice (Oct. 27, 2016), https://www.bjs.gov/content/pub/pdf/pbtss11.pdf.
[xxv].          United States v. Brignoni- Ponce, 422 U.S. 873, 886–87 (1975); see also Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxvi].          See also Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxvii].         Id.
[xxviii].        Jazz Shaw, Returning to the 4th Amendment and Utah v. Strieff, HotAir (June 30, 2016, 9:21 AM), http://hotair.com/archives/2016/06/30/returning-to-the-4th-amendment-and-utah-v-strieff/.
[xxix].          Id.
[xxx].           Christopher Mathias, NYPD Can’t Just Stop and Frisk People for the Hell of it Anymore, Says Department Memo, Huffington Post (Mar. 3, 2015, 10:39 AM), http://www.huffingtonpost.com/2015/03/05/nypd-memo-stop-and-frisk-restriction_n_6807710.html.
[xxxi].          Nathan Robinson, The Shocking Finding From the DOJ’s Ferguson Report That Nobody has Noticed, Huffington Post (March 13, 2015, 2:42 PM), http://www.huffingtonpost.com/nathan-robinson/the-shocking-finding-from-the-doj-ferguson_b_6858388.html.
[xxxii].         Sabrina Vourvoulias, What the SCOTUS Ruling on Police Searches Means for Philadelphia, Philadelphia (June 22, 2016, 10:15 AM), http://www.phillymag.com/news/2016/06/22/supreme-court-police-searches-utah-strieff; see also Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxxiii].        Vourvoulias, supra note 32.
[xxxiv].         See id.
[xxxv].          J. David Goodman & Al Baker, New York Police Department Is Undercounting Street Stops, Report Says, N.Y. Times (July 09, 2015), http://www.nytimes.com/2015/07/10/nyregion/some-new-york-police-street-stops-are-going-undocumented-report-says.html?_r=1.
[xxxvi].         Id.
[xxxvii].        See Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).
[xxxviii].       Id.
[xxxix].         Kerr, supra note 1.
[xxxx].          See Strieff, No. 14-1373, slip op. at 12 (Sotomayor, J., dissenting).

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