Tag Archives: Fourth Amendment

A Right Without a Remedy

WEB_GPSEdLate in 2016, the Supreme Court of the United States held that a detaining a man without a warrant and without reasonable suspicion or probable cause did not require the exclusion of evidence seized on his person because an outstanding municipal warrant “attenuated” the search of the man from his unlawful detention. Utah v. Strieff, 136 S. Ct. 2056, 2064 (2016) (“We hold that the evidence Officer Fackrell seized as part of his search incident to arrest is admissible [at trial] because his discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized from Strieff incident to arrest.”) (emphasis supplied). This principle is known as the “attenuation doctrine.” Hudson v. Michigan, 126 S. Ct. 2159 (2006). The test for whether or not a court should apply the attenuation doctrine to forgive a violation of the Fourth Amendment asks judges to consider (1) the temporal proximity between the initial unlawful detention and the search; (2) the presence or absence of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct. When considering this last factor, evidently, the mere fact that an officer lacked probable cause or reasonable suspicion is not enough for the misconduct to be “flagrant.” Strieff, 136 S. Ct. at 2064 (citing Kaupp v. Texas, 123 S. Ct. 1843 (2003)).

What you need to know about Strieff is that there are, literally, millions of municipal warrants floating in the ether of the United States criminal justice system. These are warrants for arrest instructing officers across the land to pick up people who didn’t pay their traffic fines, failed to appear for a court setting, did appear at the court setting but didn’t communicate that fact to the judge correctly, etc. Quite often, the people with municipal warrants are not what you’d consider “hardened criminals.” Practically everyone has had a municipal warrant for their arrest at some point in their life, or came vert close to having one issued. As with most aspects of the criminal justice system, the people most likely to have unresolved warrants are poor.

The only way to logically read Strieff is that someone with an outstanding warrant does not have the protections of  Fourth Amendment. Conventionally, if you are detained because of arbitrary circumstance – you’re a different race than the officer pulling you over; the officer doesn’t like you because you didn’t donate to the Sheriff’s office  Christmas charity drive, you drive the same kind of car as the officer’s ex-wife – anything that the officer finds in your car or on your person can’t be used as evidence against you. In the law, this is called the “exclusionary rule.” But under Strieff, if you have an outstanding traffic warrant – never mind that the officer didn’t know that when he detained you, or that it has nothing to do with what you’re being pulled over or investigated for – the evidence gets to be considered by the jury at your trial. No, not your trial for the speeding ticket you had a warrant for. The one for the new possession of marijuana charge you’re going to be booked for when the officer finishes arresting you.

To many, including counsel for Mr. Strieff before the Supreme Court, this reasoning is terrifying. Given that there are millions of unresolved traffic warrants, officers now have no reason not to pull you over arbitrarily; there is a decent chance if you’re living in an impoverished zip code  that they’ll be able to use the warrants to cover up their wrongdoing. Not to worry, says the Supreme Court! The police would never overstep their authority like that, in the mind of Justice Thomas; if they do start engaging in this kind of dragnet policing, they’ll be sued:

Second, Strieff argues that, because of prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We think this outcome is unlikely. Such wanton conduct would expose police to civil liability.

Let’s actually consider that premised for a moment. By and large, police officers are indemnified; they will not be personally liable for their misconduct no matter what happens in civil court. Joanna C. Schwartz, Police Indemnification, 89 N.Y.U. L. Rev. 885 (2014). Police departments can be sued, pursuant to 42 U.S.C. 1983, but to do so the plaintiff must overcome the doctrine of Qualified Immunity. This principle, which acts as a defense to Section 1983 suits across the county, is largely an animal of judicial interpretation. Messerschmidt v. Millender, 132 S. Ct. 1235, 1244-45 (2012) (“‘The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'” (quoting Pearson v. Callahan, 129 S. Ct. 808 (2009)). It protects “all but the plainly incompetent or those who knowingly violate the law.” Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011).

The validity of this doctrine is often questioned and criticized. I strongly encourage you to familiarize yourself with the literature on the subject. But more importantly for our purposes, Justice Thomas’ remark about civil liability seems to place America at a crossroads. We have watched, for thirty years, the applicability and relevance of the exclusionary rule shrink as law enforcement arrest more and more people. The prevailing trends in the Fourth Amendment have rendered it meaningless for many accused citizens. Seemingly, if this trend continues, something should exist to take up the slack. Civil liability is not an adequate alternative to the exclusionary rule, but it is at least a tangible way to enforce civil rights and hold violators accountable. But if Justice Thomas’ remarks are to have any meaning, the principles underpinning the doctrine of qualified immunity must be rejected, and heavily overhauled. In Justice Thomas’ own opinion, he notes that the lack of probable cause or reasonable suspicion is not enough for a fourth amendment violation to satisfy the “flagrant misconduct” prong of the attenuation doctrine. How, one wonders, is an action not flagrant enough to overcome this flimsy exception to the exclusionary rule going to be adequately flagrant to constitute a violation of “clearly established statutory or constitutional rights” to overcome qualified immunity. Under the present state of the law, it cannot.

The doctrine of qualified immunity, to my way of thinking, is far too old-world-Europe in its formulation. The very notion that, in the United States of America, there is a “sovereign” entitled to unfettered administration free of the worries and harassment associated with being sued is antithetical to democratic liberty. We don’t have a king sitting atop an unassailable pedestal. This is a country with state mottoes like “thus always to Tyrants.” The only reason not to “hold the police accountable” in civil court is to have a robust exclusionary rule to protect us from their overreach. Since opinions like Strieff undermine our confidence in this approach daily, it is incumbent on the courts and the legislature, in equal measure, to at least allow us some alternative method of bringing the beast that is law enforcement to heel.

Leave a comment

Filed under Criminal Justice, search and seizure

FISA in the time of Cholera


I recently came across a Yale Law Journal Note from 2003 entitled Leaving FISA Behind: The need to return to warrantless foreign intelligence surveillance. It is brilliantly researched and worth the read for the footnotes alone. I utterly disagree with its underlying sentiment, although not necessarily the mandate of its title.

FISA is a statutory mechanism, designed by congress, to entrench the footnoted warrant exception for national security espoused in Katz v. United States, 389 U.S. 347 (1967). By virtue of the FISA laws, domestic surveillance conducted for national security reasons involving foreign powers or their agents is reviewed by a 21st century star chamber, a tribunal of three that meets in secret within the DOJ in D.C. and determines whether or not to issue a FISA warrant with only pro forma appellate review. The standard is a watered-down version of probable cause. The court’s actions are functionally isolated from criminal discovery, and are generally unknowable. Because of these peculiarities, it is difficult to even trust the government when it represents that no FISA material was utilized in apprehending or prosecuting a defendant. After all, that is what you’d say if you’re tasked with protecting the reasoning of a secret tribunal and the existence of a secret warrant.

The article’s conclusions are necessarily naive. The article predates Edward Snowden, the Darkest of the Iraq war scandals, the abuses of the CIA in Guantanamo and black sites, changes to the text of the Patriot Act in 2015, and the election of Donald Trump. I feel that the author’s first conclusion – that the authorization of these questions should return to Article III courts – is perfectly valid. Such a shift would end a practice that, I feel, violates the right to an open court, and improve the chances of meaningful judicial review of Fourth Amendment challenges in the courts. The author’s second conclusion, however, I cannot endorse. Given the “red tape” and “procedural hurdles” that Article III warrant applications typically require, the author suggests that such surveillance be conducted without a warrant, subject only to a reasonableness inquiry. While she is correct that the warrant requirement has eroded beyond recognition, it is foolish to believe that the answer should be to lessen the burden on the government moving forward. Yes, the Freedom Act made some useful modifications to the FISA rules, but these modifications were largely half measures. For example, Section 301 of the Freedom Act prevents the use of evidence obtained by means of “deficient” procedures from being received in a trial, but the question of deficiency is still largely not subject to review outside of the FISA court system. Although this system is more transparent now than it was in 2003, it lacks the robustness of true appellate review.

Better to end FISA entirely, as the author suggests, and subject all foreign surveillance to the same strictures as Title III wiretaps.

Leaving FISA Behind: The Need to Return to Warrantless Foreign Intelligence Surveillance

Leave a comment

Filed under Criminal Justice, Political Thought, search and seizure