Supreme Court throws ‘fruit of the poisonous tree’ doctrine under the bus
A police stop without reasonable suspicion leads to discovery of an outstanding warrant for unpaid parking tickets, a search subsequent to arrest, and ultimately a charge for possession of drugs.
In Utah v. Strieff, the Supreme Court ruled that although the stop of Edward Strieff outside the residence of a suspected drug dealer violated the Fourth Amendment for lack of reasonable suspicion, the search was permissible as part of the arrest for the outstanding warrant.
(Erwin Chemerinsky examines the implications of the Strieff decision in an August 2, 2016, post on the ABA Journal site.)
The holding extends the definition of “attenuation” as it applies to the fruit of the poisonous tree doctrine: Any evidence collected as a result of an improper search, and subsequent to the invalid search, is excluded unless the taint of the poisonous tree is attenuated. The four exceptions to the doctrine are when the evidence would have been discovered eventually, when its discovery was independent of the tainted search, when an invalid search warrant was issued in good faith, and when sufficient time has elapsed between the illegal search and the evidence discovery to attenuate the violation, or “purge the taint.”
According to the 5-3 majority in Strieff, the court applies three factors when determining whether attenuation has occurred: temporal proximity, intervening circumstances, and “the purpose and flagrancy of the official misconduct.” The court found that despite the temporal proximity in Strieff, the discovery of the outstanding warrant was an “intervening circumstance” that broke the causal chain between the illegal stop and the resulting search. More importantly, according to the court, there was no flagrant misconduct on the part of the police.
Justice Sotomayor leads the defense of the Fourth Amendment
In her dissent in Strieff, Justice Sonia Sotomayor explains why the Fourth Amendment should be interpreted as prohibiting such police “misconduct” rather than permitting it. The Constitution has never before been seen as granting police the power to stop anyone, anytime, and run a warrant check. As Sotomayor writes:
“This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be catalogued.”
Following Strieff, anyone is subject to a warrant check absent an officer’s reasonable suspicion. If a warrant is found, the person is subject to a search subsequent to arrest. A great post on The Nation today by Judith Coburn, who works as a criminal investigator in Oakland, California, explains why this subjects so many poor people to zero Fourth Amendment protections. Coburn describes her defendants as “[t]oo poor to buy car insurance, fix broken tail lights, pay parking tickets, or get green cards, they are always on high alert for the police.”
Coburn tells the story of one of her clients in Oakland’s harshest neighborhood. He pleaded guilty to voluntary manslaughter for a murder he didn’t commit. His last words to Coburn before heading to prison were, “It ain’t just, but that’s how they do.”
Coburn explains why such defendants avoid jury trials at all costs. Her poor clients have been systematically deprived of the Sixth Amendment right to an impartial jury because so many poor people have become excluded from the mainstream, they are rarely called as jurors, let alone empaneled:
“Few poor people are called for jury duty because the lists of potential jurors are made up from voter and drivers’ license records; few poor people living the fugitive life vote and many don’t have a driver’s license. Coming to court might mean being stopped and frisked by the police. (I’ve had a defense witness arrested on a warrant while waiting to testify outside court and others who have been followed home by the police after they showed up to support a family member on trial.)”
A primer for white people on life in the real America
It isn’t easy to get a glimpse of the world outside our singular perspective. I don’t know what life is really like for people who aren’t white, male, and hanging on desperately to the last vestiges of middle age. That’s why it was a revelation to read an August 12, 2016, post on Medium by Kari Cobham, a Trinidadan immigrant who collected the best writing about life in America for African-Americans in particular, and for all non-whites in general.
Protests against police misconduct rightly gain our attention, but what isn’t evident – and just as devastating – is what happens to young people in poor communities when they witness so much violence. The New York Times reporter Yamiche Alcindor writes in a July 10, 2016, article that “young witnesses of the carnage are reeling from their losses and harboring pent-up depression that often comes pouring out in panic attacks and breakdowns.”
One of the most powerful statements in Cobham’s compendium is entitled “I, Racist,” by John Metta, taken from a speech he made to an all-white audience at the Bethel Congregational United Church of Christ in Washington, D.C. Metta explains why it is so difficult for black people to talk to white people about race:
“White people and Black people are not having a discussion about race. Black people, thinking as a group, are talking about living in a racist system. White people, thinking as individuals, refuse to talk about ‘I, racist’ and instead protect their own individual and personal goodness. But arguing about personal non-racism is missing the point.”
We live in a racist society. White people benefit from racist economic, political, and social systems. Every day. And every day, non-white people are at a disadvantage merely because they are not white. White people reinforce the racist society simply by participating in it, even if we claim to believe in the equality of all people.
Step one for white people is acknowledging that the racist society exists, and that we help to perpetuate it. Every day. Step two is to listen – listen a lot.
About that ‘repealing the Second Amendment’ claim
Recently, the Crackpot Who Would Be King told a gathering of his loyal idiots that his opponent in the upcoming wanted to “repeal the Second Amendment.”
Okay, the clown wouldn’t know the truth if it jumped up and tore off his fright wig. But this particular sadly misguided lie is worth a closer look. How would a Constitutional amendment be “repealed”? As explained in this LexisNexis article, Article V of the Constitution describes the two ways by which the Constitution may be amended: ratification by the state legislatures of three-fourths of the states; or by state ratifying conventions in three-fourths of the states.
The only way to undo a Constitutional amendment is by passing another amendment that cancels it. The only time this has happened is when the Twenty-first Amendment repealed the Eighteenth Amendment’s prohibition on the manufacture, distribution, and sale of alcohol. The Twenty-first Amendment is also the only one to have been ratified by state conventions rather than by state legislatures.
Maybe someday the Republican nominee will comprehend what every fourth grade civics student knows: Congress makes the laws, the President executes the laws, and the judiciary interprets the laws.