UT vs Strieff: More Coddling Crooked Cops
Clarence Thomas somehow managed to get Stephen Breyer
join the Reagan-Bush Court to allow the police to conduct illegal stops to check for arrest warrants, or to harass pedestrians
whenever they want. At issue is the exclusionary rule, which the Nixon-Burger Court perverted its original intent in Weeks
in 1914, Silverthorne Lumber in 1920, and Mapp vs OH in 1961 as the absolute remedy of illegal searches. At that time, the
exclusionary rule had three purposes:
1. Part and parcel of the Fourth Amendment
2. Judicial integrity
The rights of the people to be secure in their persons,
houses , papers, and effects against unreasonable searches and seizures shall NOT be violated…
Not only does this rule be absolute, but the Fourth also provides the right of privacy. What
part of “shall not” does the Court not understand?
Nixon-Burger Court limited the remedy in 1971 (Calandra) to deterring police misconduct. Thus, the Nixon Gang of Four (Warren
Burger, Harry Blackmun, Lewis Powell, and William Rehnquist) decided to insult the police and make them the target of the
exclusionary rule. Eventually, the Court decided to get into the heads of the police and figure out what deters them.
Back to Stieff, Thomas then brings up the three-pronged test for allowing illegally-seized
1. The Independent Source Doctrine
2. The Inevitable Discovery
The Attenuation Doctrine
The Independent Source Doctrine would pass in
the Warren Court. The exclusionary rule does not extend to any legally seized evidence, even though it might have been seized
illegally earlier. The prosecution may use it if it would have been obtained legally otherwise.
The Inevitable Discovery is more nebulous, but it also follows that the prosecution may prove that
the fruits of an illegal search may have been obtained otherwise legally.
Attenuation Doctrine resulted from the perversion of the exclusionary rule as solely to deter the police. The exclusionary
rule did not substitute for lawsuits to return illegally-seized evidence. The most comical application of the deterrence doctrine
came in 1987 under IL vs Krull (ill and cruel) in which the Nixon-Rehnquist Court allowed illegally-seized evidence under
search laws later proved unconstitutional because the exclusionary rule did not deter legislators! They lost Sandra Day O
Connor, a former legislator, but they still had five for the vote. So how are the police going to know a search law is unconstitutional?
Blackmun dodged the answer, so legislators may pass illegal search laws and get away with them until the laws are declared
unconstitutional. This time police may make illegal stops, and should there be an arrest warrant, they can get away with the
So Thomas plods alone to allow the seized evidence (Search
incident to arrest is not in question.) because there had been a legitimate arrest warrant on the defendant, even though the
stop had lacked “an articulable suspicion” under Earl Warren’s opinion in Terry vs OH (1968). Not only does
it violate the Terry rule of “stop and frisk”, but also the longstanding rule of not allowing “the fruit
of the poisonous tree”. The stop was illegal; therefore, no admissible evidence.
Sonia Sotomayor wrote the major dissent and hints of going back to the original meaning of the exclusionary rule,
which predates the FBI. Elena Kagan simply argues along the test of attenuation. The Court finds some excuse to allow evidence
obtained from an illegal “stop and frisk” when there is no articulable suspicion.
To paraphrase the jargon of Nixon and Reagan, the Court has decided to “coddle
crooked cops”. There’s yet another reason we push the Court from its lean to the right since 1970. Overriding
this case – going back to Silverthorne and Mapp and an absolute rule would help – and while we’re at it,
reversing Citizens United would be a fine start toward reversing the trend economically since 1970 as well.