On Monday, the Court announced its decision in Utah v. Strieff, a Fourth Amendment case in which a man was unlawfully stopped leaving a house the police suspected of being a drug den. Upon searching Strieff, the arresting officer discovered methamphetamine and drug paraphernalia. Normally, the fruits of an unlawful search would be inadmissible in evidence. But what made this stop and search permissible was the officer’s discovery, upon asking for and checking upon on Strieff’s I.D., that Srtieff had an outstanding warrant, entitling the officer to arrest Strieff. The existence of the warrant, the Court held, was an unforeseen intervening event breaking the chain of illegality and permitting the police to arrest and search the defendant in good faith, free of the sanction of exclusion.
The decision, over an impassioned dissent by Justice Sotomayor, is a real blow to the democratic accountability of the police. To see why, consider a fairly old case in which the Court discussed an encounter somewhat like this: Sibron v. New York, 392 U.S. 40, 44-45, 61-63 (1968). In that case, an officer standing outside a cafe suspected Sibron of drug dealing inside a cafe, could not confirm that suspicion from his position outside the cafe, and performed and unconstitutional stop resulting in the discovery of drugs. While the major difference is, of course, the attenuation issue, it is worth considering that Sibron had a right to walk away from the police officer—a right emphasized by Justice White and Justice Marshall’s concurring opinions in Sibron’s more famous companion case, Terry v. Ohio, and reiterated in the “free to leave” seizure context (Schneckloth v. Butamonte, INS v. Delgado, Florida v. Drayton, etc.).
The problem with Strieff, then, is *also* that it undermines the right to lawfully avoid and resist police encounters (in fact if not in law). Constitutionally, civilians have no legal duty to cooperate with the police. They have a legal right to walk away from the police if the police have no legal right to seize them. Not cooperating with the police may even have important democratic value—among other things, it requires the police to be the sort of institution that can persuade people to provide them with information, and if the police are a boorish and discriminatory group whose tactics threaten the public, then the public may reasonably choose not to comply with this sort of undemocratic policing. That’s Terry’s core point on the problem of hunch-based stops of the sort in Sibron and Strieff. So the attenuation doctrine in Strieff butts up against the right to avoid encountering the police if one chooses not to. Now, the police can force an encounter on the public and take their chances that the presence of a warrant will excuse their unconstitutional actions.
Just as worryingly, the police can now target high-crime neighborhoods in which individuals have greater likelihood of warrants and engage in random stops with virtual impunity. In a city like Ferguson, Missouri, where the number of outstanding warrants is larger than the number of citizens, the right to avoid the police is a chimera. And, as the Ferguson example revealed, since the police have a hand in generating warrants (by targeting individuals for what my colleague, Alexandra Natapoff, might call low-level, low-evidence offenses in which the word of the officer and the non-payment of a fine is sufficient to generate a warrant) the police have an (additional) interest in overpolicing minor crime in target areas to ensure impunity for suspicionless stops. The Fourth Amendment’s focus on corrective justice is blind to the police ability to engage in distributively unjust targeting of whole communities, and this attenuation doctrine further amplifies this disconnect.
Furthermore, the opinion implicitly appeals to the worrisome idea that, where actual criminals are concerned, criminal justice is more concerned with accuracy than with means. As Justice Sotomayor points out, there is a massive rule-of-law worry there. Ironically, insulating the police against unlawful searches may have the perverse effect of further eroding police legitimacy, because they are no longer responsible to the public for their violations of the law. From a democracy perspective, it’s a truly terrible decision. From a democracy perspective, we surely want the police to interfere with us because they have some significant reason for doing so (reasonable suspicion or probable cause). Ideally, we could then call upon the police to justify their interference with us, and if their reason is not one that would justify such interference, then we could refuse to comply. However, the run of Supreme Court decisions from objective reasonableness to attenuation is that the police officer’s personal reasons do not matter. What matters is that there is some objective basis permissibly unbeknownst to the police officer for interfering with us. The Court is thus willing to tolerate “deviant causal chains” that render irrelevant responsible policing (in the sense of being required to have a reason in response to the question, “Why should I do what you say?”). The Court is tending towards requiring that a civilian manifest blind obedience to the police or running the risk that the ignorant officer acting without reason (or for a malign reason) would prove lucky in her choice of target. And this, as Devon Carbado has argued, means that the Fourth Amendment now appears to protect the police from the public, rather than the other way round.