Another Big Bite: Departure of Antonin Scalia Not Saving the Fourth Amendment

Justice Antonin Scalia who passed away suddenly in February was a strong supporter of police. He would often vote against the Fourth Amendment. Some of the recent decisions failing to protect the rights of citizens under the Fourth Amendment were 5-4 decisions, with Antonin Scalia effectively casting a deciding vote.

A major post-Scalia case, written by Justice Clarence Thomas, has failed to reverse this trend. Rather, the Fourth Amendment just took another big hit. The new case is Utah v. Shrieff, a 5-3 decision where the dissenting opinion by Justice Sonia Sotomayor warns of a police state. The Clarence Thomas decision was joined by John Roberts, Anthony Kennedy, Samuel Alito, and the “liberal” Justice Stephen Breyer.

This new case permits police to conduct unconstitutional stops and convert them into legalized random warrant checks. We review the case in detail here, looking at the facts, issues, process, the constitutional tests and analysis, and of course the new ruling.

Then we go further. We note language in the opinion that shows contempt for the Fourth Amendment by some of the Justices. We consider the big flip-flop of the “liberal” Justice that joined the “conservatives.” We look at why these types of cases matter to innocent people. Then, we turn to the opinion of the three women who dissented against the five men who signed the decision. Finally, we look at one Justice’s warnings of a police state.


The police received an anonymous tip that there was drug activity at a residence. Officer Douglas Fackrell was sent out to check. The officer watched the house for a total of three hours over the course of a week. He noticed that visitors came and went in just a few minutes. He became suspicious that there was drug dealing.

On this particular day, the officer had just arrived and he noticed a pedestrian leaving. The man went to a nearby convenience store. There, the officer made an official stop, detained the man, and asked for identification. The man was Edward Strieff. The officer called in his name to headquarters.

It turned out that Strieff had an outstanding “minor traffic warrant.” With this new knowledge, the officer was permitted to arrest and search the man. The search turned up meth, and the man was charged with “unlawful possession of methamphetamine and drug paraphernalia.” He became the defendant in a criminal case.


The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures. The people are to be secure in their “persons, houses, papers, and effects.” In the past, where police violated this rule, the Court might protect the citizen by excluding or suppressing the information from being used as evidence in a trial. This was usually called the Exclusionary Rule. The rule was designed to enforce the Fourth Amendment right. Without some remedy, a right cannot be enforced.

The theory goes: if illegally (unconstitutionally) obtained information cannot be entered into court against a suspect, then police have an incentive to avoid violating the rights of the people. Do it legally or the person gets off.

Defendant Edward Strieff asked for the evidence to be excluded from his trial, claiming that it was “inadmissible because it was derived from an unlawful investigatory stop.” This threshold issue was argued at a suppression hearing.

At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop but argued that the evidence should not be suppressed because the existence of a valid arrest warrant attenuated the connection between the unlawful stop and the discovery of the contraband. (page 1)

Two key points of law were not in dispute. First, everyone agreed that the police officer’s stop of the man was unlawful. Second, everyone agreed that the warrant and the right of the police to arrest the man upon the warrant were legal.

The dispute arose over the Attenuation Rule. Sometimes, courts will admit information into evidence despite unlawful police activities. If the evidence is not connected or is remotely connected to the illegal police conduct, then the evidence may be admitted anyway. A typical example of attenuation would be where a suspect makes a voluntary confession to police after an illegal stop or arrest. (This is why people are often advised not to talk to police.)

The prosecutor claimed that the discovery of drugs was attenuated from the unlawful stop, since the arrest and search was performed under a legal arrest warrant. The warrant existed as a separate unrelated cause. The defendant Strieff said that the discovery of drugs would not have taken place without the illegal stop. Thus, it could not be attenuated.


The lower court agreed with the prosecutor and allowed the evidence into court. Strieff pleaded guilty to a lesser charge, but held his right to appeal the suppression decision. The case reached the Ohio Supreme Court, which unanimously reversed the lower court and determined that the drug information should be suppressed. The case was then appealed to the Supreme Court. The Supreme Court noted that some lower courts applied suppression to similar facts and some did not. There was no consistent national rule.


The Supreme Court described the case issue this way:

We granted certiorari to resolve disagreement about how the attenuation doctrine applies where an unconstitutional detention leads to the discovery of a valid arrest warrant. (page 3)

The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during the stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence. (page 1)


The attenuation doctrine evaluates the causal link between the government’s unlawful act and the discovery of evidence, which often has nothing to do with a defendant’s actions. (page 5)

Following prior cases, there were three questions the Court asked to analyze the Attenuation Doctrine. Each of the three situations could permit the Court to look the other way on the Fourth Amendment violation and admit the evidence. It appears that only one exception is needed. The Court found two.

  1. Temporal Proximity

How closely did the discovery of evidence follow the unconstitutional search? The officer found the drugs “only minutes after the illegal stop.” The Court found this short time “in favor of suppression.” (page 6)

2. Intervening Circumstances

Did the unlawful police action contribute to the “discovery of the evidence seized under the warrant” or was it “sufficiently attenuated to dissipate the taint”? (page 7)

In a 1984 case, the Supreme Court allowed evidence to be admitted against suspects operating a drug house. The police watched a transaction, followed the man, found cocaine, and arrested the man. The man told police that there was another transaction scheduled and that drugs would be found in the house.

The police applied for a search warrant of the house, but it was delayed overnight. In the meantime, police seized the premises. They found drugs and arrested another person.

Although the seizure of the premises was arguably unlawful, the police had “probable cause” on these specific people and this house, and the warrant was eventually issued. The case was decided 5-4 as many of these Fourth Amendment exception cases are. (Segura v. United States)

In the current case, the police did not even have “reasonable suspicion” of the person who was stopped and searched — less yet “probable cause.” No transaction was observed. No specific confession was made. The warrant was discovered solely because of the unlawful police stop. The drugs were found precisely because of the warrant. Nevertheless, the Court found the two cases similar enough to consider the warrant check “intervening,” and to allow the evidence into court.

3. Flagrancy of Official Misconduct

Was the police violation “purposeful or flagrant”? The Court indicates that this question is the most important one in the case.

The Court admits that there was a Fourth Amendment violation and suggests how the officer should have done things differently. But then the Court says it was all just a “good faith” mistake of “errors in judgment.” The Court concludes that the violation was simply not bad enough to protect the citizen’s rights. (page 8)

Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell’s stated purpose was to “find out what was going on [in] the house.” Nothing prevented him from approaching Strieff simply to ask. But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.

While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful… Moreover, there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation…(Citations omitted) (page 8)

The Court continued. The arrest warrant was “wholly independent of the illegal stop.” It “broke the causal chain between the unconstitutional stop and the discovery of evidence.” There was no “flagrantly unlawful police misconduct.” Therefore, the evidence discovered directly as a result of an unlawful police stop without reasonable suspicion may be used against the person in court. (page 9)

Essentially, the Court found the constitutional violation to be wrong but not really, really bad.


Early in the opinion, the Court looks way back in history.

Because officers who violated the Fourth Amendment were traditionally considered trespassers, individuals subject to unconstitutional searches or seizures historically enforced their rights through tort suits or self-help. (page 4)

The Court returns to the same point later, countering an argument that “dragnet searches if the exclusionary rule is not applied” would be permitted. The Court claims to “think that this outcome is unlikely” because it “would expose police to civil liability.” (page 10)

Putting these two sections together, a bigger issue is revealed. The Court does not seem to like the Exclusionary Rule and thinks that unlawful police actions should be allowed. It is doubtful that they are endorsing “self help,” but a person can always sue. Just find a lawyer and sue the police. Simple.


Justice Stephen Breyer was appointed by Bill Clinton and considered to be on the “liberal” side of the Court. In the current case, he jumped over to the other side and joined Clarence Thomas to provide the deciding vote.

In a 2007 case, the Supreme Court admitted that police violated the Fourth Amendment by failing to “knock and announce” before entering a home. Drugs were found in that case too. Drugs are often found in these cases.

The Court decided that the drug evidence was admissible despite unlawful police action. Justice Antonin Scalia wrote the decision. He practically gloated while admitting the Constitutional violation — “happily” there was no remedy. The Constitution was violated but the Supreme Court tied its hands. Evidence admitted. This case too was a 5-4 decision.

On the side of the four dissenters, Stephen Breyer himself noted that the Exclusionary Rule had been used to protect knock and announce rule as of 1961 [Mapp v Ohio], when “[e]xperience, … showed that alternative methods of enforcing the Fourth Amendment’s requirements had failed.” The 2007 case reverted the rule by eliminating the remedy. (Hudson v. Michigan)


The Ohio Supreme Court looked at this case and found unanimously that the evidence should be suppressed under the Exclusionary Rule for violating the citizen’s rights. Because there were different outcomes in different areas, the Supreme Court took this case to create a national rule of application to the Fourth Amendment.

The Supreme Court literally reduced Fourth Amendment protections in the state of Ohio using a federal right as an excuse to do so. While this is not unusual, it should be interesting to note: when states want to protect citizens from the encroachment of government, the concept of “states rights” need not apply. It will not even be considered.


When cases of Fourth Amendment violations reach the Supreme Court, usually it is because evidence was discovered unlawfully. Often, drugs are involved. Even though these people are typically guilty as sin, the rights of all people are implicated.

As Bob Collins points out in NewsCut:

But let’s think about this. If evidence can be used against you that is the result of an illegal stop by police, what’s to keep police from stopping you illegally? … These sorts of cases rarely work up much sympathy, but that’s the nature of how constitutional rights disappear. You can be stopped now for doing nothing wrong. Justice Sonia Sotomayor wrote in an astounding piece of writing that should be required reading for anyone who’s ever been tempted to read the Constitution.


Justice Sonia Sotomayor wrote the dissent for the current case. She was joined by Ruth Bader Ginsburg and Elena Kagan for most of it. Bob Collins printed the entire dissent at his blog. Here are some highlights.

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights…

This case 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. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant…

In his search for lawbreaking, the officer in this case himself broke the law. The officer learned that Strieff had a “small traffic warrant.” Pursuant to that warrant, he arrested Strieff and, conducting a search incident to the arrest, discovered methamphetamine in Strieff ’s pockets…

The Utah Supreme Court unanimously agreed with Strieff. A majority of this Court now reverses.

It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although unconstitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right…


In one section of her dissent, Sonia Sotomayor stands alone.

This case involved a suspicionless stop, one in which the officer initiated this chain of events without justification… [M]any innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny…

[T]his case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says 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.”

In the oral argument before the case was decided, Sonia Sotomayor asked, “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”

In the final opinion, she substituted the word “carceral,” which means pertaining to prisons.

(Italicized paragraphs are long quotes from the case or from other sources as mentioned.)