Utah v. Strieff
June 20, 2016 2:01 PM   Subscribe

The Supreme Court has issued its opinion in Utah v. Strieff (pdf actual opinion), holding essentially that an active warrant remedies an unconstitutional stop.

This case has been the subject of commentary due to the potentially vast-reaching consequences of the decision for communities of color, wherein as many as 75% of people have outstanding warrants against them. In a stunning dissent, Justice Sotomayor lays out the crux of that concern:
"Writing only for myself, and drawing on my professional experiences, I would add that unlawful 'stops' 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.

"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—so 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—even one that is minor, unrelated, or ambiguous. Devenpeck v. Alford, 543 U. S. 146, 154–155 (2004); Heien v. North Carolina, 574 U. S. ___ (2014).

"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 'consent' 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 'helpless, perhaps facing a wall with [your] hands raised.' Terry, 392 U. S., at 17. If the officer thinks you might be dangerous, he may then 'frisk' you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may ‘feel 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.'' Id., at 17, n. 13.

"The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or 'driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.' Atwater v. Lago Vista, 532 U. S. 318, 323–324 (2001). At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to 'shower with a delousing agent' while you 'lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.' Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___–___ (2012) (slip op., at 2–3); Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 28). Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the 'civil death' of discrimination by employers, landlords, and whoever else conducts a background check. Chin, The New Civil Death, 160 U. Pa. L. Rev. 1789, 1805 (2012); see J. Jacobs, The Eternal Criminal Record 33–51 (2015); Young & Petersilia, Keeping Track, 129 Harv. L. Rev. 1318, 1341–1357 (2016). And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you 'arrestable on sight' in the future. A. Goffman, On the Run 196 (2014).

"This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119–138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95–136 (2010). 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. See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

"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. See L. Guinier & G. Torres, The Miner’s Canary 274–283 (2002). 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.

"I dissent."
posted by likeatoaster (80 comments total) 73 users marked this as a favorite
 
Justice Sotomayor is a national treasure.
posted by funkiwan at 2:06 PM on June 20, 2016 [89 favorites]


Cases like this illustrate why the lack of justices with actual criminal law experience is so problematic for the Court.
posted by NoxAeternum at 2:06 PM on June 20, 2016 [26 favorites]


This is chilling.
posted by Splunge at 2:16 PM on June 20, 2016 [3 favorites]


One wonders what the Founding Fathers would have made of this decision. I'm sure they would have been all hunky-dory with suspicionless stop and frisk. That sounds like them.
posted by GenjiandProust at 2:18 PM on June 20, 2016 [6 favorites]


Yay government by exegesis of nearly-quarter-millennium-old documents!
posted by Bromius at 2:23 PM on June 20, 2016 [1 favorite]


I want to cry, and I don't know if it's because one of them GETS IT or because eight of them truly don't.

It's probably more the latter.
posted by palmcorder_yajna at 2:24 PM on June 20, 2016 [2 favorites]


Court Decides Fourth Amendment Is No Longer That Important
Quite simply, Thomas’s decision opens the door to profiling on an industrial scale.
posted by T.D. Strange at 2:32 PM on June 20, 2016 [5 favorites]


Well, five of them. Sotomayor, Kagan, and Ginsburg voted the other way.

Justices Kagan and Ginsburg, though, declined to join THIS SECTION of Justice Sotomayor's dissent. Ginsburg was willing to join the other sections, but pointedly declined to join this one. That is pretty pathetic, in my view. And of course Justice Breyer was in the majority.

There is no liberal wing on the Supreme Court.
posted by sheldman at 2:35 PM on June 20, 2016 [18 favorites]


True, edeezy. I guess I should be glad that Ruth Bader Badass Ginsburg didn't want any part of the majority opinion.
posted by palmcorder_yajna at 2:35 PM on June 20, 2016 [3 favorites]


Court Decides Fourth Amendment Is No Longer That Important

Welcome to, like, 30 years ago, numbnuts.
posted by entropicamericana at 2:36 PM on June 20, 2016 [5 favorites]


I mean, how obvious does it have to get that this is a political decision? Who on the court is an ally of ordinary citizens and who is an ally of the elite? Who thinks it would be very suitable and convenient if the cops could pretty much stop most working people most times for almost anything?

And isn't this an incentive to arrest kids for bullshit? If you just make sure that you get them enmeshed in the legal system early, you can arrest them again whenever you want.

And - although this is a smaller concern - this is also a chill on dissent. While there are additional reasons that political protests tend to be white and middle class, a significant factor is that white, middle class people have less to fear from a single arrest and are less likely to have outstanding warrants. The more aggressively warrant stops are enforced, the harder it will be for low income people and people of color to protest or indeed to assemble in public for anything.

First slowly and then all at once - I feel like the past couple of years have been just this acceleration into dystopia, the steep part of the hockey stick.
posted by Frowner at 2:38 PM on June 20, 2016 [64 favorites]


I mean, not that this stuff doesn't happen already, but "it's hunky dory if you do it even more" is a bad thing.
posted by Frowner at 2:38 PM on June 20, 2016 [6 favorites]


I just love the citations. I mean

See, e.g., W. E. B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).

like damn.
posted by Lutoslawski at 2:38 PM on June 20, 2016 [64 favorites]


(i should probably clarify the "numbnuts" crack with directed to the blog author, not T.D Strange)
posted by entropicamericana at 2:41 PM on June 20, 2016 [7 favorites]


Supreme Court says police may use evidence found after illegal stops (ny times coverage; more money dissent quotes).
posted by likeatoaster at 2:41 PM on June 20, 2016 [2 favorites]


4th Amendment issues were one area where Scalia was usually on the right side. This is one case where he might have made a positive difference, had he not died.
posted by Pater Aletheias at 2:49 PM on June 20, 2016 [18 favorites]


Dammit, Breyer.
posted by numaner at 2:52 PM on June 20, 2016 [5 favorites]


Presidential elections matter.
posted by gwint at 3:09 PM on June 20, 2016 [22 favorites]


Another de facto tool of oppression just became de jure.

Rejoice, America!
posted by lalochezia at 3:14 PM on June 20, 2016 [8 favorites]


So... is it now literally more legal to stop someone for bullshit reasons than not? Since apparently to weasel their way into this interpretation, they had to specify that the warrant be unrelated to the reason for the stop?
posted by Zalzidrax at 3:17 PM on June 20, 2016


Practically speaking, this means that the literal only people with a remedy for an unconstitutional stop are people who are 1) found with illegal contraband; AND 2) do not have any outstanding warrants for failure to appear/new charges. Because if you are found with no contraband, there is no remedy unless the search is particularly egregious (presumably, your remedy is the benefit of not getting arrested arbitrarily?); and if there is a warrant, including for a missed traffic court date, it doesn't matter why you were stopped.

The problem, of course, is that police can count on this not be a very large overlap, so the risk of conducting arbitrary stops is minimal at best.
posted by likeatoaster at 3:24 PM on June 20, 2016 [14 favorites]


So basically they've found one more way to un-poison the fruit of the poisonous tree. We're closer and closer to the 'give me six lines in the hand of the most honest man' standards of evidence.
posted by eclectist at 3:29 PM on June 20, 2016 [9 favorites]




Thank goodness there is no way to illicitly place illegal contraband into a suspect's possession to justify a stop.
posted by nfalkner at 3:48 PM on June 20, 2016 [23 favorites]


Horrifying decision that produced a brilliant dissent. Fuck.
posted by rtha at 3:49 PM on June 20, 2016 [2 favorites]


Christ, even the *language* sounds like 1984.

::looks for jobs in Sweden::
posted by kleinsteradikaleminderheit at 4:19 PM on June 20, 2016 [1 favorite]


"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.

"I dissent."


I distinctly remember some shitty talking points around Sotomayor's "wise Latina" comment, which was, of course taken wildly out of context.

Well, here is "wise."
posted by mandolin conspiracy at 4:23 PM on June 20, 2016 [14 favorites]


Breyer was robbed twice in three months in 2012. Draw your own conclusions.
posted by T.D. Strange at 4:24 PM on June 20, 2016 [1 favorite]


Justices Kagan and Ginsburg, though, declined to join THIS SECTION of Justice Sotomayor's dissent. Ginsburg was willing to join the other sections, but pointedly declined to join this one. That is pretty pathetic, in my view. And of course Justice Breyer was in the majority.

There is no liberal wing on the Supreme Court.

If you’re going to suggest that Ruth Bader Ginsburg is anything but a liberal -Ruth Bader Ginsburg, who is actively refusing to retire until an administration shows up that will appoint someone she considers liberal enough- you need to rethink your court interpretation game because you are demonstrably bad at it. No, she didn’t join this part of the dissent, but the idea - the idea that this somehow invalidates her “liberal” credentials -or those of Breyer, or Kagan- is stupid on the face. Perhaps it would be better to reflect on why she didn’t join before rushing to judgment.
posted by Going To Maine at 4:40 PM on June 20, 2016 [12 favorites]


Breyer was robbed twice in three months in 2012. Draw your own conclusions.

Yes, and Donald Trump has threatened to build a wall shutting out all Mexicans. Draw your own conclusions about Judge Curiel. I mean, what the hell.
posted by Going To Maine at 4:42 PM on June 20, 2016 [1 favorite]


One wonders what the Founding Fathers would have made of this decision. I'm sure they would have been all hunky-dory with suspicionless stop and frisk.

Since constitutional rights didn't apply against states (or municipalities thereof), they may have been in this instance.

This decision, of course, moves us closer toward the position of enlightened Europe, which doesn't have a per se exclusionary rule.

Progress!
posted by jpe at 4:51 PM on June 20, 2016 [3 favorites]


how obvious does it have to get that this is a political decision?

Are you suggesting it would be apolitical if decided the other way?
posted by jpe at 4:54 PM on June 20, 2016 [2 favorites]


Perhaps it would be better to reflect on why she didn’t join before rushing to judgment.

Why do you think she didn't join that part of the dissent, Going To Maine?
posted by No-sword at 4:58 PM on June 20, 2016 [4 favorites]


Are you suggesting it would be apolitical if decided the other way?

No, that this type of question is one that, contra what we're supposed to believe about the Supreme Court, cannot be anything but a political decision. If there were liberals (not that we'd ever get leftists) in a majority on the court, it would have gone the other way, regardless of the law. If we had conservatives instead of Ginsberg, Kagan and Sotomeyer, it would have been a unanimous conclusion.

The Supreme Court is a bizarre institution. I'd rather have it be a bizarre institution that produced knee-jerk liberal decisions than knee-jerk conservative ones, but any big case with an ideological angle will always be decided ideologically.
posted by Frowner at 5:03 PM on June 20, 2016 [1 favorite]


Why do you think she didn't join that part of the dissent, Going To Maine?

I have no idea! I’m also not any kind of lawyer or judge. But RBG’s bona fides speak for themselves, I think, so I’ll probably look to SCOTUSBlog or Amicus to provide me some insight into her process. Certainly I wouldn’t say that this somehow magically voids her credibility. Adam Liptak’s take, linked above by jpe, provides some pretty interesting context as well.
posted by Going To Maine at 5:04 PM on June 20, 2016 [2 favorites]


Breyer was robbed twice in three months in 2012. Draw your own conclusions.

Yes, and Donald Trump has threatened to build a wall shutting out all Mexicans. Draw your own conclusions about Judge Curiel. I mean, what the hell.
There's a huge difference between viewing all people of Mexican descent as some kind of monolithic hivemind and suggesting that someone's direct experience of violent crime might color their views on criminal law.
posted by indubitable at 5:06 PM on June 20, 2016 [3 favorites]


Hm, I don't see this ruling as so awful.

If there are too many offenses that can yield a warrant, we should address that. Given that there are over 100k outstanding warrants in that county alone, that seems important.

Simply rendering evidence inadmissible is also obviously insufficient to deter 4th amendment violations. No one disputes that the initial officer's stop was unconstitutional, yet I see no indication that he was disciplined for that.

I don't think the solution is to put a band-aid on that by reducing the force of a prior warrant whose legality is not even contested.

The non-band-aid solution is actual punishment for offending officers and departments, not simply presuming that throwing out evidence is "appreciable deterrence." Even if Strieff's conviction were thrown out on 4th amendment grounds, he was still the victim of an illegal search, and I would not consider that injustice remedied without a more tangible consequence for Officer Fackrell himself.

If we can get cameras on officers' chests and dashboards, if we can get citizens commissions to investigate police misconduct, if we can shatter, as we largely have, the persistent myth that cops are reliably honorable and just, then I do not think it is quixotic that we can actually hold them accountable when they violate our most fundamental rights.
posted by andrewpcone at 5:08 PM on June 20, 2016 [6 favorites]


There's a huge difference between viewing all people of Mexican descent as some kind of monolithic hivemind and suggesting that someone's direct experience of violent crime might color their views of criminal law.

Sure. And I remember when people argued that Vaughn Walker shouldn’t have ruled on gay marriage because he was gay and in a relationship. There might be differences here, but they are all of a piece: this justice has been tainted by there experiences. I mean, hell, we could also argue that Sotomayor has been tainted by her experiences as a woman and a POC.
posted by Going To Maine at 5:10 PM on June 20, 2016 [1 favorite]


I mean, hell, we could also argue that Sotomayor has been tainted by her experiences as a woman and a POC.

Has anyone argued that she hasn't? I thought that was the whole point of appointing women and PoC and LGBTQ people to the courts (I disagree with the term "tainted", obviously).
posted by indubitable at 5:23 PM on June 20, 2016 [16 favorites]


When the police see the populace as a source of revenue, like they do in Ferguson (to pick an example), this is basically legalizing extortion.
posted by fifteen schnitzengruben is my limit at 5:28 PM on June 20, 2016 [14 favorites]


4th Amendment issues were one area where Scalia was usually on the right side. This is one case where he might have made a positive difference, had he not died.

True. It's funny to think that were Scalia around, this might've been a 5-4 case with Scalia joining Ginsburg, Kagan, and Sotomayor in dissent.
posted by gyc at 5:46 PM on June 20, 2016 [1 favorite]


One wonders what the Founding Fathers would have made of this decision. I'm sure they would have been all hunky-dory with suspicionless stop and frisk. That sounds like them.

some of them owned slaves so they were ok with a lot more than that
posted by internet fraud detective squad, station number 9 at 6:54 PM on June 20, 2016 [6 favorites]


I don't think the solution is to put a band-aid on that by reducing the force of a prior warrant whose legality is not even contested.

Refusing to allow the admission of illegally-obtained evidence does not in any way reduce the force of the existing warrants, it merely forces cops to do their jobs. The thing about band-aids is that they, you know, stop some bleeding. Your alternative solutions involving large-scale reform and citizen commissions are a lot more far-fetched -- a classic example of the perfect being the enemy of the good.
posted by tonycpsu at 7:01 PM on June 20, 2016 [5 favorites]


The 4th Amendment already doesn't apply to like 20% of the country.
posted by cjorgensen at 7:07 PM on June 20, 2016


I mean, what the hell.

Breyer has ruled almost universally for the government in 4th Amendment cases since 2012, and he was pretty damned terrible on that specific issue from the beginning. I think personal experience is absolutely relevant, especially where he had a predisposition for a narrow interpretation of the exclusionary rule already. In 4th Amendment cases, you could reasonably consider Scalia and Breyer to swap bodies from their customarily predicted votes.

I hate playing the 'I'm a lawyer card' on the internet, but I am, and I've read a disproportionate amount of 4th Amendment cases although I don't practice in criminal law. This ruling is terrible, and all the more so because Thomas wrote it, but not shocking considering where the Court is right now, (ie, what 4th Amendment?) and Breyer's vote was utterly predictable.
posted by T.D. Strange at 7:19 PM on June 20, 2016 [8 favorites]


Simply rendering evidence inadmissible is also obviously insufficient to deter 4th amendment violations. No one disputes that the initial officer's stop was unconstitutional, yet I see no indication that he was disciplined for that....I don't think the solution is to put a band-aid on that by reducing the force of a prior warrant whose legality is not even contested....The non-band-aid solution is actual punishment for offending officers and departments, not simply presuming that throwing out evidence is "appreciable deterrence."

Here's the thing, though. The exclusionary rule is the only effective deterrent--as the legal system currently stands--against 4th amendment violations. Blame decades and decades of terrible civil/excessive force and qualified immunity decisions, but police officers are not held civily or disciplinarily accountable for bad stops, too much force, or racial profiling. Full stop. We have lost that battle in the courts. Which is not even to mention that when police actually are effectively sued for excessive force, egregious searches, etc., the settlement money generally comes out of union/departmental/municipal pools specifically set up to handle settlements. Individual police officers do not face penalties for extremely reckless behavior, nevermind simply negligent behavior. This is wrong, I agree, but doesn't seem to be on the verge of being fixed anytime soon.

On the other hand, in my experience, the exclusionary rule (that is, the rule that evidence gathered from an unconstitutional search or seizure is inadmissible in court) still has bite. It still affects the behavior of police officers across the United States. Because they go to court on their cases, and they freaking hate it (generally speaking) when their "bad guys" get away. It is a behavioral check on the police force that works, because police officers do not want to have wasted their energy only to have their cases thrown out in court. In my experience, they make efforts to keep up with the law and attempt to conform their conduct to it, or at least be able to defend it to a prosecutor.

So I don't really understand the "people shouldn't have so many warrants" argument. Because by this logic, people also shouldn't get caught with contraband, i.e., we shouldn't even have an exclusionary rule, because it only protects people who are caught. But the exclusionary rule is not about the people with the warrants, and it is not about the people caught with the bag of cocaine. It is about checking police behavior, and maintaining our collective individual freedoms not to be subjected to random searches and invasions of privary. And it is effective in that regard, except that that effectiveness is being systemically chipped away at by the Supreme Court. That is why this decision is as bad as it is.
posted by likeatoaster at 7:36 PM on June 20, 2016 [24 favorites]


all the more so because Thomas wrote it

why?
posted by internet fraud detective squad, station number 9 at 7:53 PM on June 20, 2016


Going to Maine says "RBG’s bona fides speak for themselves" and pushes back on my post, which is fine of course.

Justice Ginsburg, before becoming a judge, was a great lawyer for a specific great cause. She is due enormous respect for that.

She has been a perfectly good Justice for a moderate Democratic party, and has written a few great opinions. But I have never seen any reason to believe that she is better for the nation (more precisely, for my hopes for the nation) than any Obama appointee would have been.

Going to Maine, you praise her for holding out on the Court as long as she can - but can you say that she is "better" in any sense, as a Justice, than Justices Kagan or Sotomayor? I consider her holding on, throughout the Obama presidency, to have been a selfish decision. From 2008 to 2015 there was no reason for her to believe that the next President would be more to her liking than Obama was, even assuming that her calculation was political.
posted by sheldman at 8:45 PM on June 20, 2016 [2 favorites]


(And when I say that there is no liberal wing on the Supreme Court these days, I don't mean to deny that there is a wing that is less right-wing than the far-right. It is just that the "left" of the Court is, on many issues, not meaningfully as "left" as the right wing of the Court is "right." It is, for the most part, a weak and defensive and elite-centered quasi-liberalism. "Liberal," to me, means something different from "not as right as Justice Kennedy or Chief Justice Roberts.")
posted by sheldman at 8:55 PM on June 20, 2016 [1 favorite]


I mean, Section IV of her opinion begins with “Writing only for myself…” so it makes sense to me that Ginsburg and Kagan didn't join that section. Maybe they, two white women, didn't want to tag along on a section that seemed highly informed by Sotomayor's life experience as a woman of color. Maybe Sotomayor wanted that section to be hers and hers alone.
posted by savetheclocktower at 9:10 PM on June 20, 2016 [6 favorites]


I hate playing the 'I'm a lawyer card' on the internet, but I am, and I've read a disproportionate amount of 4th Amendment cases although I don't practice in criminal law.

This seems like a pretty perfect situation for playing the “I’m a lawyer card”, really.

Going to Maine, you praise her for holding out on the Court as long as she can - but can you say that she is “better” in any sense, as a Justice, than Justices Kagan or Sotomayor?

I mean, how do you compare a justice at the end of their long and lionized career with two justices near the beginning of theirs? Ginsburg is a justice I admire for the fact of being the second female justice on the court, an avid feminist, and a passionate advocate for the rights of the downtrodden. Even in this case, she’s being given flack here for not joining one particular section of a dissent. I’m no lawyer, simply an admirer, and someone who thinks that cases can be nuanced to fall into interesting sections of left-right divides; witness T.D. Strange’s point that Breyer has been in favor of expanding this authority in the past, or consider how this ruling would seem to be putting the left more in line with Europe. Maybe that’s the worst thing possible, given how different we are as a country, but I don’t consider myself qualified to evaluate.

So - is Ginsburg better than Sotomayor or Kagan? Iunno, ask me in twenty years. But K & S still have a lot of catching up to do.
posted by Going To Maine at 9:17 PM on June 20, 2016 [1 favorite]


An active warrant remedying an unconstitutional stop is for the greater good. That this decision could have vast-reaching consequences for those with warrants and those making choices that could lead to a warrant is for the greater good.
posted by Homer42 at 1:49 AM on June 21, 2016


why?

Thomas has a way of framing decisions in uniquely terrible language. Take the passage, "there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona-fide investigation of a suspected drug house." So is he saying that a 4th Amendment violation only occurs in the presence of "systemic or recurrent police misconduct"? Really? Does the rest of the decision back that up with precedent? Not at all. And "an isolated instance of negligence", so that makes it better? Who determines "isolated" and how? Does Thomas give a rule for guidance, or is it now open for trial judges (overwhelmingly former prosecutors) across the country to determine that each violation is "isolated"?

Sure, Roberts or Kennedy probably would've written a decision coming to the same result, but I don't think it's likely they would have used such incendiary framing, or given quite such a clear roadmap to trial judges that, "hey, we're telling you how to not apply the 4th Amendment".
posted by T.D. Strange at 5:09 AM on June 21, 2016 [6 favorites]


The exclusionary rule is the only effective deterrent--as the legal system currently stands--against 4th amendment violations.

It's also basically the only sanction the judicial branch can apply entirely on its own power --- pretty much anything else has to be enforced by the executive.
posted by PMdixon at 5:40 AM on June 21, 2016 [1 favorite]


An active warrant remedying an unconstitutional stop is for the greater good. That this decision could have vast-reaching consequences for those with warrants and those making choices that could lead to a warrant is for the greater good.

In 2015, that would've stripped the equivalent of 75% of all Ferguson, Missouri residents of that protection. Traffic tickets and failure to register vehicles are among the many reasons why they would've been asked to submit to unconstitutional stops without recourse.

So file fewer arrest warrants and do it only for more serious cases, you might say. And yes, absolutely, that is the ultimate solution to the problem. My point is that the way things stand today, an active warrant can mean very little in terms of the severity of your crime, depending on where you live and who you are. Do you want "vast-reaching consequences" for someone who hasn't paid their speeding tickets? Because that's the reality. What's the Supreme Court's answer to solving that reality?
posted by chrominance at 6:08 AM on June 21, 2016 [8 favorites]


I jusr want to say I am totally chuffed to see my little cousin Alice Goffman being cited in a Supreme Court dissent, just a shame it wasn't a decision instead.
posted by Meatbomb at 6:12 AM on June 21, 2016 [4 favorites]


See also: arrest warrants are issued against domestic violence victims and other witnesses to court proceedings in certain circumstances (ie., after failing to respond to a court subpoena). But please tell me more about "those making choices that could lead to a warrant." (And let he who has never had a speeding ticket throw the first stone.)
posted by likeatoaster at 6:14 AM on June 21, 2016 [3 favorites]


If we can get cameras on officers' chests and dashboards, if we can get citizens commissions to investigate police misconduct, if we can shatter, as we largely have, the persistent myth that cops are reliably honorable and just, then I do not think it is quixotic that we can actually hold them accountable when they violate our most fundamental rights.

Recent history suggests you are wrong. Video footage of obvious police murders has repeatedly failed to result in substantial punishment. I suppose it is a breakthrough that they are even getting charged but they are still mostly getting off.

Part of the problem is that a bad cop has all of the ostensibly good cops on his side. Everyone knows this. Including jurors.

Punishing a police officer is not unlike the 'snitches get stitches' dilemma.

It really isn't a technical or judicial problem. It's a power problem.
posted by srboisvert at 6:25 AM on June 21, 2016 [1 favorite]


Presidential elections matter.

Apparently not as there wasn't a fourth voice present to convince at least one of the other five that they were wrong.
posted by dances with hamsters at 7:53 AM on June 21, 2016




But K & S still have a lot of catching up to do.

I'm sorry, but Sotomayor, the only sitting Justice with actual career history in criminal law does not have any catching up to do with Ginsberg when it comes to practical application of the Constitution in criminal courts. This is why Ginsberg refusing to sign on to that portion of the dissent is so problematic - because in this part of the law, Sotomayor is the expert.
posted by NoxAeternum at 8:36 AM on June 21, 2016 [5 favorites]


Almost coincidental that somebody asked about link rot the other day, because one of the URLS in Sotomayor's dissent is already dead: Page 7, last paragraph, the link to a Human Rights Watch report (https://www.hrw.org/report/2014/02/05)
posted by General Malaise at 9:46 AM on June 21, 2016 [1 favorite]


Oh, n/m, the PDF rendered the link incorrectly.
posted by General Malaise at 9:47 AM on June 21, 2016


I have a sneaking suspicion that J. Sotomayor wasn't asking the other justices to join Part IV of her dissent. I can think of several reasons why that might be the case.

And note how she starts Part IV: "Writing only for myself, and drawing on my personal experiences..."
posted by mikeand1 at 9:57 AM on June 21, 2016 [1 favorite]


mikeand1: "And note how she starts Part IV: "Writing only for myself, and drawing on my personal experiences..."

Actually it says "professional experiences," right?
posted by sheldman at 11:01 AM on June 21, 2016


The “I dissent” at the end of Sotomayor's opinion is starker than the typical “I respectfully dissent” at the end of Kagan's opinion. As ridiculous as it may seem, that stuff matters. “I dissent” means “this isn't just a difference of opinion; I am pissed off at this ruling.”

That's another highly personal aspect of a decision. I'm sure it's happened before, but I can't recall the last time a bare “I dissent” was joined by another justice.
posted by savetheclocktower at 11:27 AM on June 21, 2016 [2 favorites]


"I'm sure it's happened before, but I can't recall the last time a bare “I dissent” was joined by another justice."

King v Burwell (2015) is one very recent one.
posted by sheldman at 11:53 AM on June 21, 2016


I haven't read all of the opinions in their entirety so I don't have nearly enough information to form my own opinion regarding any of them - majority or dissents.

I may have overlooked it, but I didn't see any mention of the facts of the case in prior comments. The police stopped Mr. Strieff, discovered there was a warrant for his arrest and only then did they search him - the evidence that the court is choosing not to exclude was discovered during the search pursuant to the arrest. I'm not saying that removes all the bad smell but ...
posted by Carbolic at 12:24 PM on June 21, 2016


As I admit above, I haven't read the complete opinions, but I would recommend doing so rather than relying upon the media to give anything approaching a clear picture of what the court decided or what your opinion of the decision should be.

For example, I wonder how many of the people who demonized Scalia after King v Burwell actually read his dissent.
posted by Carbolic at 12:36 PM on June 21, 2016


edeezy - i understand that the stop was questionable but the fact that the search occurred after they knew of the warrant rather than before is significant.

The emotional side of my brain cheers along with the dissent. The lawyer side leans grudgingly toward the majority.
posted by Carbolic at 2:50 PM on June 21, 2016


The human side of my brain says that if a stop is illegal, then everything done afterwards is illegal. This is supported by the very rational, lawyerly reasons that Justice Sotomayor gave.
posted by hydropsyche at 2:51 PM on June 21, 2016 [2 favorites]


The emotional side of my brain cheers along with the dissent. The lawyer side leans grudgingly toward the majority.

Really? My lawyer side's been saying Whren was wrongly decided since law school, and that this decision by the majority is just another thing calcifying a massive, racist mistake in jurisprudence.
posted by kafziel at 3:10 PM on June 21, 2016 [3 favorites]


Said it upthread, but it’s worth remembering that Canada uses trade-offs - if a cop finds 77 kilos of coke, their illegitimate stop is ok.
posted by Going To Maine at 3:16 PM on June 21, 2016 [1 favorite]


edeezy - i understand that the stop was questionable but the fact that the search occurred after they knew of the warrant rather than before is significant.

It wasn't just questionable, it was clearly illegal. There was no good faith effort by the officer to comply with the Fourth Amendment.
posted by Holy Zarquon's Singing Fish at 3:21 PM on June 21, 2016 [2 favorites]


For example, I wonder how many of the people who demonized Scalia after King v Burwell actually read his dissent.

I read the opinion and his dissent. Scalia hasn't been an intellectually honest writer for a very long time. Beyond any position he did or didn't take, he lacked integrity.
posted by internet fraud detective squad, station number 9 at 4:30 PM on June 21, 2016 [2 favorites]


Originalism always and forever only meant "whatever Scalia's policy preferences are". He had zero consistency or honesty, and his sole legal gift* was coming up with a hollow framework that allowed him to construct a veneer of intellectualism and respectability to cover his naked partisanship.

* - I don't consider his talent for glib bile to be any great asset in a legal context. Bill Maher has the same talent and no one considers him a towering intellect of our times.
posted by T.D. Strange at 6:15 PM on June 21, 2016 [5 favorites]


Any chance we can try this approach with the 2nd amendment? "Guys, so sorry! I know we took away your assault rifles but we totally didn't mean to! What? No, of course we don't have to give them back..."
posted by great_radio at 8:25 PM on June 21, 2016


Said it upthread, but it’s worth remembering that Canada uses trade-offs - if a cop finds 77 kilos of coke, their illegitimate stop is ok.

Canada is a terrible example for restricting the power of the state to harass people given that the state can pretty much keep you in endless jeopardy based on legal technicalities until they get a conviction.
posted by srboisvert at 6:41 AM on June 22, 2016 [1 favorite]


I stopped giving Scalia any credit after he declared 1oz of home-grown pot for personal use was sufficient to qualify something as being subject to interstate issues and therefore subject to federal law. Meaning, if you are a remotely rational individual and not just willing to do anything to forward drug law, that any physical object would qualify. Originalist my eye.
posted by phearlez at 6:48 AM on June 22, 2016




« Older The War On Terror meets The Final Frontier   |   Driving in a big circle around Iceland Newer »


This thread has been archived and is closed to new comments