Strieff, Innocence, Targeting, and Overcriminalization

by Sherry F. Colb

In my Verdict column for this week, I discuss the case of Utah v. Strieff. The Court held in Strieff that although a police officer had stopped a suspect without any reasonable suspicion (as the parties conceded), and this stop was what led the officer to ask for identification and ultimately to learn of an outstanding arrest warrant against the suspect, the evidence found in the course of the search incident to the arrest (on the basis of the warrant) is properly admissible under the "attenuation doctrine."  The Court found that the pre-existing arrest warrant for the suspect constituted an "intervening circumstance" that attenuated the causal link between the initial illegality and the discovery of the evidence on the suspect.

In my column, I criticize this opinion but in particular, I take issue with a line in the decision in which the Court hints at the possibility that the initial stop, performed without any reasonable suspicion, might nonetheless have been lawful under the Fourth Amendment because there was an outstanding warrant in existence for the suspect's arrest.  I suggest that this post-hoc rationalization for a stop could, if taken to its logical conclusion, spell the end of the exclusionary rule, since one could argue that anyone with evidence on him or her retroactively justified whatever seizure and search of her that turned up that evidence.

In this post, I want to explain why I believe such a retroactive approach would be a problem.  Years ago, I wrote an article in the Columbia Law Review, entitled "Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence."  There, I proposed that in some sense, guilty people have forfeited their right to the privacy that conceals their guilt.  On this theory, if a police officer happens to stop and search someone who, it turns out, has evidence of crime on his person, then no privacy harm has occurred.  I think that there is still a sense in which this is true, but I would add two caveats, one of which is in my Columbia article and the other which is not.

The first caveat is the targeting harm.  I argue in the Columbia article that although people forfeit a privacy right in the area that they use to conceal evidence of crime, they do not forfeit a right against being arbitrarily targeted by the police, an interest that is part of the Fourth Amendment right against "unreasonable" searches and seizures, just as privacy ordinarily is.  Police do not truly randomly stop people when they decide to seize someone against whom they harbor no reasonable suspicion or probable cause.  Police instead have some "feeling" about the person, a feeling that is likely to correspond--as Justice Sotomayor eloquently explained in her Strieff dissent--to race and ethnicity. Therefore, although a person against whom an outstanding warrant exists is, in some sense, not entitled to be free from detention or arrest (or a search incident to arrest), it is also true that the same person is entitled to be free from arbitrary governmental behvior aimed at him for the wrong reasons. The harm of such activity is what I call "the targeting harm" in my article, and I think that if the Court picks up on its hint and decides that an unknown outstanding warrant can justify a suspicionless stop, then that will open the door to tremendous numbers of targeting harms directed at minority communities and individuals, a very undesirable outcome from the perspective of both the Fourth Amendment and Equal Protection values.

A second caveat is that in my article, I assumed for purposes of argument that anyone who is guilty of a crime or against whom there might be an outstanding warrant is in fact deserving of detention or search or ultimate prosecution.  But as Justice Sotomayor also pointed out in her Strieff dissent, many of the outstanding warrants out there are for relatively minor traffic offenses for which no one should be going to prison or otherwise being severely punished.  In other words, the assumption under which I was operating in suggesting that guilty people forfeit the privacy that conceals their guilt is that the guilty people are truly "guilty" in some meaningful sense.  But as I argued in a different piece, "Stopping A Moving Target," that assumption is often not well founded, and not every traffic violation is serious enough to be worthy of authorizing even a stop, never mind the criminal justice consequences that could follow an arrest.  Lots of people who commit minor, trivial traffic offenses end up with outstanding warrants for their arrests, and likewise, people who are "guilty" of technical violations or crimes may in fact have done something relatively trivial that should not make them eligible for humiliation, degradation, or the other experiences that accompany police search, seizure, and arrest.

To put the point differently, to the extent that we have a serious problem of overcriminalization, which many of us would acknowledge that we do, it is no longer the case that anyone who commits a "crime" has thereby forfeited the right to either privacy or liberty.  Overcriminalization calls into question the legitimacy of the whole system, which means, at the very least, that we want to reign in police power to interfere with apparently innocent individuals as they go about their business.  The unspoken premise, then, of the majority opinion in Strieff, is that a crime is a crime is a crime.  But this is no longer true (assuming it ever was), and the toxic mix of racial profiling and overcriminalization means that we should, at the very least, make sure that police have dotted all of the i's and crossed all of the t's before they are able to interfere with the liberty and privacy of individuals, even those individuals who have outstanding arrest warrants against them.  The line between innocence and guilt, then, might not be so clear as the majority believes.  For that reason alone, the possibility that an outstanding warrant unknown to a police officer might retroactively justify the officer's decision to stop an individual with no reasonable suspicion is a truly threatening prospect.