Police Gains Come at Fourth Amendment's Expense

      Score two significant wins for police from the Supreme Court last week and two setbacks for the Fourth Amendment and individual privacy.
      In the first of the decisions, the court gave police a fishing license to search just about anyone on the street as long as there is an outstanding arrest warrant for any offense as trivial as an unpaid parking ticket. In the second, police gained a half victory in drunken-driving cases by getting permission to administer a breathalyzer test without a search warrant following a lawful arrest.
      Both decisions were closely divided, with the court’s conservatives joined in each by Justice Stephen G. Breyer, a Fourth Amendment pragmatist who often parts ways with his liberal colleagues in search cases. Leading the dissenters in each was Justice Sonia Sotomayor, whose experience as an assistant district attorney in New York City left her with a healthy distrust of police and a heightened regard for individual rights.
      Sotomayor drew widespread attention with an impassioned dissent in the first case, Utah v. Strieff. The majority in the 5-3 ruling [June 20] blinked at the concededly unlawful stop that a Salt Lake City detective made in a drug investigation back in December 2006. As Sotomayor made clear, Justice Clarence Thomas’s opinion for the majority ignores all that the country has learned in the post-Ferguson era about the harm that police can inflict on ordinary citizens when they disregard constitutional limits on law enforcement.
      Detective Douglas Fackrell spotted Edward Strieff as he left a house the detective had under surveillance based on an anonymous tip. Fackrell tailed Strieff to a convenience store, stopped him, asked for identification, and radioed back to the station for a warrant check. Strieff in fact had an outstanding warrant for a traffic offense that was never specified in the court record.
      Fackrell placed Strieff under arrest, conducted what the courts call a “search incident to arrest,” and found some methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence as the fruit of an unlawful stop. Unsuccessful in the lower courts, Strieff won a unanimous decision from the Utah Supreme Court, which rejected the state’s argument that the discovery of the arrest warrant “attenuated” the connection between the Fourth Amendment-violating stop and the search.
      In Thomas’s telling, Fackrell had been guilty of nothing more than “an isolated instance of negligence” and the discovery of the warrant “broke the causal chain” between the unconstitutional stop and the discovery of the evidence. He saw “no indication . . . of any systemic or recurrent or police misconduct.
      Thomas may have been right in the individual case, but Sotomayor countered by bluntly depicting the ruling as an open invitation to police misconduct. “This case,” she wrote, “allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong.”
      Far from an isolated case, Sotomayor emphasized that law enforcement databases have more than 7.8 million outstanding warrants on file and police manuals instruct officers to run warrant checks after any stop, lawful or not, in hopes of discovering a warrant that will give grounds for a search. Sotomayor acknowledged that Strieff is white, but aptly noted that “people of color” are “disproportionate victims” of the kind of suspicionless stop.
      The majority’s ruling, Sotomayor added, “tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.” Justice Ruth Bader Ginsburg joined her opinion, except for what Sotomayor called a final “personal” section. As the third dissenter, Justice Elena Kagan similarly mocked Thomas’s exoneration of Fackrell’s conduct. The stop, she said, was “far from a Barney Fife-type mishap,” but “a calculated decision.”
      The Fourth Amendment took a less serious beating three days later in a decision that allows police to dispense with obtaining a search warrant before requiring a drunken-driving suspect to submit to a breathalyzer test. Justice Samuel A. Alito’s seeming compromise opinion in Birchfield v. North Dakota [June 23] does require a search warrant before a more intrusive blood draw. But it goes on to uphold laws that allow states to punish drivers who refuse the breath test not only by suspending their driver’s licenses but also by prosecuting them criminally.
      Again, Sotomayor was joined in a strong dissent by Ginsburg, though not by Kagan. As Sotomayor pointed out, police ordinarily perform a breathalyzer test not at roadside but back at the station. This “built-in window” allows time to obtain a warrant in the modern era of instantaneous communication, she said. That “small burden,” she said, was needed to make prevent the Fourth Amendment from becoming “an empty promise.”
      Somewhat confusingly, Thomas dissented from the opposite perspective. He argued that no search warrant was needed for the breath or blood test. But he complained that Alito’s justification of the breath test as a search incident to arrest distorts that doctrine. He argued instead that police could dispense with the warrant under a different doctrine: “exigent circumstances.” The court rejected that argument in a decision three years earlier, Missouri v. McNeely. As authority for his view, Thomas cited his lone dissent in that case.
      As Sotomayor pointed out in Strieff, the Fourth Amendment protects everyone: white, black, brown, yellow. But it protects only if courts enforce its provisions against police who find it an inconvenience all too easy at times to circumvent.