The “chicken or the egg problem” presents the dilemma of mutually dependent circumstances. It is an age-old question we have all encountered at some point in our lives — in a different idiomatic phrasing we would say we have a “Catch-22" situation.
Recently, the U.S. Supreme Court issued a decision in Utah v. Strieff that required the majority to resolve a unique circumstance involving an unlawful stop of a pedestrian. Further, the court’s decision may have left the wrong impression for police officers concerning the limits of Terry stops.
Yet, what the court did show was the continuing limits of the exclusionary rule.
Facts of the case
The facts of the case are simple: a narcotics officer, acting on an anonymous tip, starts to surveil a suspected drug location. The officer — over the course of a week — conducts intermittent surveillance of the home and observes several short-term but frequent visitors. With his suspicions raised, the officer stops Edward Strieff in a parking lot a short distance from the home. The officer identifies himself and then asks Strieff what he was doing at the home.
During the stop, the officer requests Strieff’s identification. A check of his name reveals a traffic violation warrant. An ensuing search incident to arrest yields a bag of methamphetamine and drug paraphernalia. Naturally Strieff is charged and later moves to suppress the evidence as the product of an illegal stop.
The prosecution concedes the illegality of the stop but argues that the evidence should be admitted because the existence of a valid arrest warrant attenuated the connection between the illegal stop and the drug evidence. Herein lies the Catch-22: a set of mutually dependent circumstances requiring sound justification. Is it the stop that matters or the pre-existing arrest warrant?
Attenuation theory
On the street, in this same situation, the answer is simple for the beat officer: arrest the offender and do the job as trained. After all, the Supreme Court long ago said a person was not a suppressible fruit. In United States v. Crews, the court allowed an identification of a suspect that was procured by an illegal detention of the suspect. The court then relied on the witness’ independent recollection as an exception to applying the exclusionary rule.
In the present case, the court rested its logic on another exception — attenuation theory — which states that an intervening circumstance, such as the existence of a valid arrest warrant, breaks the causal chain between the initial illegality (the unlawful stop) and the resulting evidence (the drugs).
Attenuation theory and independent source are two of three exceptions. The third is inevitable discovery, which nullifies the effect of the exclusionary rule and the causal relationship between unconstitutional conduct and resulting evidence. A fourth exception, “good faith,” primarily addresses conduct.
The exclusionary rule — first established at the federal level in 1914 in Weeks v. United States and then famously applied to the states 47 years later in Mapp v. Ohio — is the primary vehicle for enforcing the protections of the Fourth Amendment. However, concerns over the practical impact of such a harsh rule have confronted the various courts around the country since Weeks.
In 1926, future U.S. Supreme Court Justice Benjamin Cardozo — while a judge of the New York State Court of Appeals — addressed the implications of the exclusionary rule upon the states in People v. Defore when he wrote, “The criminal is to go free because the constable has blundered.”
More recently, Justice Scalia in Hudson v. Michigan wrote, “Suppression of evidence ... has always been our last resort, not our first impulse.”
Justice Thomas reiterated in Strieff, “This exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”
The bottom line in Strieff was that the court applied the aforementioned attenuation principle to the discovery of a valid, pre-existing arrest warrant. In doing so the court considered the three-factor test articulated in Brown v. Illinois for determining attenuation:
- The temporal proximity between the unconstitutional conduct and the discovery of evidence to see how close in time the evidence was found to the unconstitutional conduct
- The presence of intervening circumstances
- The purpose and flagrancy of the official misconduct
What Strieff means
While the short period of time between the officer’s stop of Strieff and the discovery of the drug evidence would normally favor suppression, the court found the pre-existence of the warrant to be totally unconnected to the stop and an intervening circumstance favoring the state. But, it was the third factor, “the purpose and flagrancy of the official misconduct” which the court found to be a determining factor.
Justice Thomas wrote that the officer involved was “at most negligent” in his stop of Strieff. The officer, Thomas continued, made two good-faith mistakes:
- He had not observed what time Strieff entered the home and thus did not know how long he had been in the suspected drug house
- Since the officer lacked information on whether Strieff was a short-term visitor he should have asked to speak to Strieff rather than forcibly stopping him on the street.
The right to approach Strieff and inquire was open without implicating any Fourth Amendment concerns. But, more importantly, the majority opinion said there was no indication the unlawful stop was part of a systemic or recurring pattern of police behavior. It is this final point that is the more important byproduct of Utah v. Strieff for the patrol officer.
In no way — despite the dissenting opinions of justices Sotomayor and Kagan — did the court sanction such unconstitutional stops as a means for officers to run random name checks for warrants. Such a purposeful and systemic plan as that would not only lead to suppression of evidence but civil liability for the officer(s) involved and the agency.
Strieff is of little practical use to the officer from a patrol standpoint since it resolves a narrow question of law. It has no sweeping effect to change how and under what circumstance police can forcibly stop an individual (see for example, the cured statement rule in Oregon v. Elstad and Missouri v. Seibert, the court’s subsequent rejection of the tactic of obtaining an un-Mirandized confession then obtaining a second repeat confession after Mirandizing a suspect. The practice outlined in Seibert ostensibly resulted from a broad and misguided reading of Elstad that made its way into certain police training circles.)
Strieff joins a list of prior Supreme Court decisions outlining the limits of the exclusionary rule’s reach. In the meantime, the basics of reasonable suspicion stops remain controlled by the court’s 1968 decision in Terry v. Ohio.
