PERFECT APPLICATION OF AN IMPERFECT RULE: UTAH v. STRIEFF I. INTRODUCTION

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1 PERFECT APPLICATION OF AN IMPERFECT RULE: UTAH v. STRIEFF I. INTRODUCTION Suppression of evidence, however, has always been our last resort, not our first impulse. 1 The above quote comes from Justice Scalia, in his 2006 majority opinion in Hudson v. Michigan, where the court considered the scope of the exclusionary rule. 2 As noted in Hudson and many other cases, the exclusionary rule has been a hotly contested topic in constitutional jurisprudence since its inception. As it relates to the Fourth Amendment, the judge-made 3 exclusionary rule has, over time, undergone a drastic reformation from a blanket bar on the admission of all criminal evidence obtained in violation of the Constitution, to a particularly narrow principle aimed exclusively 4 at deterring blatant police misconduct. 5 Recently, the Supreme Court of the United States wrestled with whether or not to exclude evidence obtained as part of a lawful search that resulted from an unconstitutional investigatory stop. 6 In Utah v. Strieff, the majority and dissent passionately disagreed over the relevance of an outstanding arrest warrant, due to the wide prevalence of outstanding warrants among the population, 7 as well as whether the police officer in question (Office Fackrell) exhibited purposeful and flagrant 8 misconduct. As empirical studies have revealed that racial profiling runs rampant, and minorities (particularly young black males 9 ) are disproportionately targeted, stopped, and questioned based on inaccurate stereotypes, 10 the Strieff decision may, in time, prove to have significant civil rights consequences. This note argues that the Strieff majority correctly applied the exclusionary rule, and in doing so, the opinion implicitly highlighted the dearth of available remedies for Fourth Amendment violations. Part II will briefly summarize the origin and evolution of the exclusionary rule and its current application. Part III will provide an in-depth synopsis of the 1

2 relevant factual and procedural history of Utah v. Strieff, and how the majority and dissenting opinions reached their respective conclusions. Part IV will examine why the majority s analysis was accurate, and how the holding may or may not impact future Fourth Amendment violations. Part V is the conclusion, which suggests a framework for how courts might fairly apply the Fourth Amendment and the exclusionary rule to deter police misconduct but also provide redress for victims of constitutional violations. II. THE EVOLUTION OF THE EXCLUSIONARY RULE An analysis of the exclusionary rule begins with the Fourth Amendment, which states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. 11 Of course, there is nothing in the text of the Fourth Amendment itself that specifies whether or not courts should admit evidence obtained in violation of the Fourth Amendment, and thus this rule was created over years of judicial opinions. A. The Origin of the Exclusionary Rule In Weeks v. United States, the Supreme Court adopted the exclusionary rule for evidence obtained in violation of the Fourth Amendment. 12 In that case, the government attempted to admit evidence regarding the illegal sale of lottery tickets, though the evidence was obtained in a warrantless search. 13 Vehemently preserving the framers intent, and the idea that a man s home was his castle and could not be invaded by general warrants, the Court held that the evidence was seized in violation of the Fourth Amendment, and was therefore inadmissible. 14 Years later, through the Fourteenth Amendment, the Supreme Court made the exclusionary rule applicable to the states in 1961 in Mapp v. Ohio. 15 2

3 B. The Impact of Terry v. Ohio In 1968, the Supreme Court in Terry v. Ohio addressed the role of the Fourth Amendment in street confrontations between citizens and police officers. 16 In Terry, an experienced detective observed two men exhibiting behavior that, according to the police officer, was consistent with casing a job, a stick-up. 17 The officer approached the defendants, identified himself as a police officer, and asked for their names. 18 When the defendants mumbled something in response, the officer grabbed one of the defendants, spun him around... and patted down the outside of his clothing. 19 At this point, the officer discovered a pistol inside the defendant s jacket. 20 The defendants were charged with carrying concealed weapons. 21 The trial court refused to suppress the evidence on the grounds that the officer had reasonable cause to believe that the men might be armed, a decision the Court of Appeals affirmed. 22 The Supreme Court agreed, and held that the evidence was admissible because the officer had reasonable grounds to believe the petitioner was armed and dangerous, and it was necessary for the protection of himself and others C. The Attenuation Exception In 1975, the Supreme Court in Brown v. Illinois provided further guidance in analyzing the causal link between unlawful police conduct and the discovery of incriminating evidence. 24 In Brown, two police officers broke into and searched the defendant s apartment in connection to a murder investigation. 25 When the defendant came home, the officers arrested him at gunpoint. 26 The officers had no probable cause or any valid warrants. 27 Later, at the police station, the defendant was read his Miranda rights and soon thereafter confessed to assisting in the murder. 28 3

4 At trial, the jury found the defendant guilty of murder, and the Supreme Court of Illinois affirmed the conviction. 29 The U.S. Supreme Court, however, reversed the lower courts conviction, holding that the lower courts were wrong in assuming that the Miranda warnings, by themselves,... always purge the taint of an illegal arrest. 30 The court noted that if Miranda warnings, by themselves, attenuated the taint of an illegal arrest, then the Fourth Amendment and exclusionary rule would be substantially diluted. 31 The Court set out a series of factors to be considered by future courts in reviewing the admissibility of evidence obtained in violation of the Fourth Amendment, which include (1) the temporal proximity of the arrest, (2) the presence of intervening circumstances, and (3) particularly, the purpose and flagrancy of the official misconduct. 32 D. The Modern Day Exclusionary Rule: Our Last Resort The applicability of the exclusionary rule was narrowed through the creation of the good faith exception in 1984 in United States v. Leon. 33 There, police searched a residence pursuant to a warrant issued by a State Superior Court Judge, which resulted in the discovery of large quantities of drugs. 34 At the District Court evidentiary hearing, the defendants demonstrated that the affidavit filed to obtain the warrant was insufficient to establish probable cause, and the Court of Appeals agreed that the government s affidavit included no facts indicating the basis for the informants statements concerning [defendants ] criminal activities and was devoid of information establishing the informants reliability. 35 The U.S. Supreme Court reversed the lower courts, holding that the officers reliance on the magistrate s determination of probable cause was objectively reasonable, and in the absence of dishonest or reckless preparation by the police in their affidavit, the search was not illegal and therefore the evidence was admissible. 36 The Court reasoned that the officers relied on the 4

5 magistrate s determination of probable cause, and that exclusion of evidence due to the actions of the police under these circumstances would be inappropriate. 37 The Leon decision represented the initial departure from the previously stringent exclusionary rule, now allowing for an exception for officers who did not act in bad faith. 38 Today, the Court s interpretation of the exclusionary rule remains consistent with Leon. In 2009, the Court again analyzed the good faith exception in Herring v. United States. 39 There, the Court held that unlawfully obtained evidence should not be suppressed at trial if the police officer reasonably believed that he was abiding by the Fourth Amendment. 40 Specifically, Chief Justice Roberts asserted that an error in a computer database that mistakenly classified a previously recalled warrant as active, did not rise to the level of deliberate, reckless, or grossly negligent conduct, 41 nor was it an act of recurring or systematic negligence, 42 that would render the seized evidence inadmissible. III. THE DECISION: UTAH V. STRIEFF The incident in Utah v. Strieff began in December 2006, when an anonymous caller telephoned the South Salt Lake City Police drug-tip line to report narcotics activity at a particular residence. 43 Narcotics detective Douglas Fackrell subsequently conducted intermittent surveillance of the residence over a one-week period. 44 During the surveillance, Officer Fackrell observed short-term traffic at the home; frequent enough to raise his suspicion that the occupants were dealing drugs. 45 One of these occupants, Edward Strieff, exited the house and walked toward a nearby convenience store during Fackrell s surveillance. 46 Officer Fackrell followed Strieff to the convenience store, and detained him in the store parking lot. 47 During the stop, Fackrell asked Strieff what he was doing at the home and requested Strieff s identification, which he provided. 48 Officer Fackrell then relayed Strieff s information to a police dispatcher, 5

6 who revealed that Strieff had an outstanding arrest warrant for a traffic violation. 49 Officer Fackrell arrested Strieff pursuant to the outstanding warrant, and searched him incident to the arrest, where he discovered a bag of methamphetamine and drug paraphernalia. 50 Strieff was charged with unlawful possession of methamphetamine and drug paraphernalia. 51 Strieff moved to suppress the evidence on the grounds that it derived from the unlawful stop. 52 The prosecution conceded that Fackrell lacked reasonable suspicion to stop Strieff, but argued that the evidence was admissible because the outstanding arrest warrant attenuated the connection between the unlawful stop and the discovery of the drugs. 53 The trial court agreed, and admitted the evidence. 54 The trial court held that although the temporal proximity between the stop and the search favored suppression of the evidence, the extraordinary intervening circumstance of a valid arrest warrant, and the lack of flagrant police misconduct made the evidence admissible. 55 The Utah Court of Appeals affirmed, 56 but the Utah Supreme Court reversed, holding that only a voluntary act of a defendant s free will (as in a confession or consent to search) sufficiently breaks the chain between the unlawful search and the discovery of evidence. 57 The U.S. Supreme Court granted certiorari. 58 A. The Majority Opinion The U.S. Supreme Court reversed, 59 relying heavily on the principle in Hudson v. Michigan that the exclusionary rule is only applicable where its deterrence benefits outweigh its substantial social costs. 60 Justice Thomas majority opinion outlined the three established exceptions to the rule: (1) the independent source doctrine, 61 (2) the inevitable discovery doctrine, 62 and (3) the attenuation doctrine. 63 The applicable exception in this case was the attenuation doctrine. 64 Utilizing the three factor test articulated in Brown v. Illinois, 65 the Court held that the subsequent discovery of 6

7 Strieff s outstanding arrest warrant broke the causal chain between the unlawful stop and the discovery of evidence. 66 The temporal proximity favored suppressing the evidence because the contraband was discovered only minutes after the stop. 67 The Court found the remaining two factors the presence of intervening circumstances and the purpose and flagrancy of the official misconduct however, so strongly favored the State that the exclusionary rule did not apply. 68 Specifically, the Court relied on the precedent of Segura v. United States, 69 which suggested that the existence of a valid arrest warrant favors finding that the connection between unlawful conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint, because the warrant predated Fackrell s investigation and was unconnected to the illegal stop. 70 Furthermore, the Court found that Fackrell s good-faith mistakes were representative of an isolated instance of negligence, that did not meet the threshold of a purposeful or flagrant Fourth Amendment violation. 71 B. The Dissent Justice Sotomayor wrote a dissenting opinion, which concluded that Officer Fackrell s exploitation of the illegal stop was purposeful 72 in nature, and prohibited under the Fourth Amendment. 73 Although the temporal proximity factor favored suppression, Justice Sotomayor was critical of how the majority applied the remaining two factors articulated in Brown. First, Justice Sotomayor argued that due to the hundreds of thousands of outstanding warrants in Utah at the time of the stop, Fackrell s warrant search was calculated, and therefore should not be considered an intervening circumstance that may attenuate the taint of the initial illegal stop. 74 Justice Sotomayor also disagreed with the majority s categorization of the illegal stop as a good-faith mistake and isolated act of negligence. 75 Institutionalized training methods 76 that encourage police officers to stop suspects prior to properly developing reasonable suspicion, 7

8 she argued, will lead to even more frequent invasions of Fourth Amendment rights after this decision. 77 Condoning the use of suspicionless 78 stops, she warned, will without question have a significant impact on African Americans who are already disproportionately subjected to seemingly suspicionless stops. 79 Justice Kagan wrote a separate dissent, likewise concluding that Fackrell s illegal stop bore the resemblance of a calculated decision, 80 as opposed to an innocent mistake. Using the doctrine of proximate cause, Justice Kagan argued that an intervening circumstance must truly be unforeseeable. 81 In this instance, however, Justice Kagan claimed that Fackrell s discovery of Strieff s arrest warrant could be seen from a mile away. 82 IV. ANALYSIS: HOW AND WHY THE MAJORITY GOT IT RIGHT The Supreme Court s decision in Utah v. Strieff is consistent with recent precedent and effective in achieving the ultimate goal of limiting the exclusionary rule s applicability to cases of gross negligence and blatant police misconduct. 83 The majority properly utilized a costbenefit analysis in order to assign the appropriate weight to each corresponding Brown factor. The dissents concern that the decision will have a negative impact on civil rights and endorse bad police behavior are well-intentioned, but misplaced. The dissents frustration is a result of the imperfect nature of the current remedies available to victims of Fourth Amendment violations. Because Strieff highlighted the good-faith mistakes of Officer Fackrell and was an isolated incident of negligence, this decision may, in time, reduce unlawful stops by police officers by serving as a measuring stick for future courts examining alleged police misconduct. A. The Majority Correctly Applied the Attenuation Doctrine Precedent. The Strieff majority was correct in both their assignment of weight to the various Brown factors, as well as which party each corresponding factor favored. By noting that the temporal 8

9 proximity factor clearly favored Strieff without performing any real analysis, the majority implicitly reinforced the fundamental principle that none of the three factors of the attenuation doctrine are dispositive. 84 In the same instance, the Court reiterated that a proper attenuation doctrine analysis is fact-sensitive, and varies on a case-by-case basis. 85 Secondly, the Court correctly ruled that the discovery of an outstanding arrest warrant was an intervening circumstance. 86 The dissent was too quick in unfairly dismissing the warrant as an intervening circumstance because, in the dissents view, it was only for a small traffic violation. 87 The dissent refused to acknowledge that a warrant is a judicial mandate to an officer to conduct a search or make an arrest, and each officer has a sworn duty to carry out its provisions. 88 In Segura, the Court suggested that a valid warrant is an intervening circumstance to be given strong consideration. 89 However, unlike the warrant in Segura, the warrant in Strieff was for an entirely unrelated crime that predated the stop, thereby making the discovery of said warrant an even larger intervening circumstance than the warrant in Segura, which was related to the same investigation. 90 Most importantly, the majority assigned the most weight to the purpose and flagrancy of the official misconduct, which here too favored the State. 91 It was apparent that the dissent misinterpreted this factor by referring to Fackrell s illegal stop as calculated and thus investigative in nature. 92 Although the dissent was correct in believing the stop to be investigative, a strict textual interpretation of this factor clearly requires the presence of both purpose and flagrancy. 93 Even if Officer Fackrell s unlawful stop was purposeful, this may actually prove to be irrelevant so long as his misconduct did not rise to the level of flagrant misconduct. In Brown, the illegality of the arrest at issue had an obvious, impropriety that was calculated to cause surprise, fright, and confusion. 94 That was simply not the case here. 9

10 Officer Fackrell s misconduct did not reach the flagrant threshold because it was not reckless, grossly negligent 95 or otherwise deliberately intended to violate the Fourth Amendment. 96 Although it seems likely that Officer Fackrell s stop was in fact investigative based on his experience in the field of narcotics and the circumstances surrounding the investigation, it cannot be reasonably inferred that his discovery of an outstanding warrant for a completely unrelated crime from an otherwise routine call 97 to the police dispatcher rose to the level of flagrancy the attenuation doctrine requires. B. The Majority Opinion Preserves the Principal Purpose of the Exclusionary Rule The majority opinion is consistent with the primary principle of the exclusionary rule: to deter police misconduct. 98 The exclusionary rule exerts a costly toll on the judicial system because it forces courts to turn a blind eye towards incriminating evidence, often leading to clearly erroneous decisions and setting criminals loose without punishment. 99 In recent years, the Supreme Court has attempted to recalibrate the exclusionary rule from a reflexive reaction to a Fourth Amendment violation to a rigorous weighing of its costs and deterrence benefits. 100 Certainly, brushing aside the discovery of methamphetamines and drug paraphernalia often associated with the sale of drugs 101 due to an isolated incident of negligence is not a price the Court feels society should be obligated to pay. Unfortunately, the disastrous consequences of an inflexible exclusionary rule that is not focused solely on deterring police misconduct are already well known. In Davis v. Mississippi, a rape conviction was overturned due to a Fourth Amendment violation 102 despite clinching fingerprint evidence of the defendant being at the crime scene. 103 Circumstances such as this illustrate that when applied in accordance with strict liability logic, the exclusionary rule will 10

11 often have detrimental impacts on society and the judicial system. For this reason, it is vital that, as suggested by the Hudson court, it remain a last resort, and not a first impulse. 104 C. The Real Problem: There Still Remains No Real Effective Remedy to Victims of Fourth Amendment Violations. The societal problem that the Utah v. Strieff decision highlights is the almost complete absence of any remedial recourse available to victims of Fourth Amendment violations that do in fact rise to the level of purposeful and flagrant police misconduct. In her spirited dissent, Justice Sotomayor warned of the impacts that Strieff will have on civil rights, and suggested that it will now be open-season on minorities for police officers to play the odds that whoever is stopped will have a valid outstanding warrant for their arrest. 105 After all, it is well documented that police officers looking for contraband primarily search amongst African American and Latino populations, 106 thus finding a disproportionately high number of them with contraband and thereby reinforcing racial stereotypes. Despite constituting only 13% of the country s overall drug users, blacks constitute 37% of those arrested on drug charges, and a staggering 74% of all drug offenders who serve jail time for their offense. 107 It has even been reported that some officers are ordered to stop all black males between the ages of 15 and 30 years old. 108 It is problematic that the remedies designed to provide restitution to civil rights victims are simply inadequate to deter future unconstitutional stops. Under 42 U.S.C. 1983, victims of unconstitutional arrests may recover compensatory damages for loss of liberty and physical and emotional distress. 109 In practice, however, a civil rights plaintiff faces nearly insurmountable hurdles to collect damages. 110 First, there is the issue of overcoming a defendant s qualified immunity defense, which currently protects all but the plainly incompetent or those who knowingly violate the law. 111 Then, in the rare event that a qualified 11

12 immunity defense is defeated, a 1983 plaintiff is only able to recover damages stemming from the unconstitutional stop itself. 112 As demonstrated in Utah v. Strieff, this can be as short as a few minutes, thus making it difficult to prove a police officer s recklessness a necessary element in recovering punitive damages. 113 Because these factors seem to work unanimously against the 1983 plaintiff, it is questionable how many attorneys are even willing to litigate cases like Strieff, thus presenting yet another hurdle for victims of unconstitutional stops. 114 A more enticing solution may be a revised 1983 statute allowing for treble damages in Fourth Amendment cases involving flagrant and obvious police misconduct V. CONCLUSION The Supreme Court remained consistent with its own recent precedent and correctly held in Utah v. Strieff that the exclusionary rule should not apply. 115 By emphasizing the discovery of Strieff s outstanding warrant for an unrelated incident, and the absence of any wanton police misconduct, the Court properly addressed all of the attenuation factors 116 specific to Brown v. Illinois and reinforced the primary purpose of the exclusionary rule. 117 However, the majority was also naïve to suggest that subjecting police to civil liability serves as an effective deterrent of police misconduct, 118 given the many difficulties a victim of a Fourth Amendment violation faces in bringing a successful civil rights action. Nevertheless, abandoning the current framework of the exclusionary rule analysis would have been an inappropriate response to the good-faith Fourth Amendment violation in Strieff. 12

13 1 Hudson v. Michigan, 547 U.S. 586, 591 (2006). 2 See generally Id. 3 Davis v. U.S., 131 S. Ct. 2419, 2423 (2011) ( [T]his Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. ). 4 Id. at 2426 ( The rule s sole purpose... is to deter future Fourth Amendment violations. ). 5 See Herring v. U.S., 555 U.S. 135, 141 (2009). 6 See generally Utah v. Strieff, 136 S. Ct (2016). 7 Id. at 2068 (Sotomayor, J., dissenting) ( The States and Federal Government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses. ). 8 Id. at Alice Brennan and Dan Lieberman, Florida City s Stop and Frisk Nabs Thousands of Kids, Finds 5-Year-Olds Suspicious, THE NAKED TRUTH, 10 David A. Harris, Driving While Black: Racial Profiling On Our Nation s Highways, AMERICAN CIVIL LIBERTIES UNION (June 1999), 11 U.S. CONST. amend. IV. 12 See Scott E. Sundby and Lucy B. Ricca, The Majestic And The Mundane: The Two Creation Stories Of The Exclusionary Rule, 43 TEX. TECH L. REV. 391, 396 n.24 (2010). 13 Id. 14 Id. 13

14 15 Hudson v. Michigan, 547 U.S. 586, 590 (2006). 16 See generally Terry v. Ohio, 392 U.S. 1 (1968). 17 Id. at Id. at Id. at Id. 21 Id. 22 Id. at Id. at See generally Brown v. Illinois, 422 U.S. 590 (1975). 25 Id. at Id. 27 Id. 28 Id. at Id. at Id. at Id. at Id. at (emphasis added). 33 See generally United States v. Leon, 468 U.S. 897 (1984). 34 See Id. at Id. at 903, Id. at Id. 14

15 38 Id. at See generally Herring v. United States, 555 U.S. 135 (2009). 40 Id. at Id. at Id. 43 Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016). 44 Id. 45 Id. 46 Id. at Id. 48 Id. 49 Id. 50 Id. 51 Id. 52 Id. 53 Id. 54 Id. 55 Id. 56 State v. Strieff, 286 P.3d 317, 335 (Utah Ct. App. 2012). 57 State v. Strieff, 357 P.3d 532, 536 (Utah 2015). 58 Strieff, 136 S. Ct. at Id. 15

16 60 Hudson v. Michigan, 547 U.S. 586, 591 (2006) (quoting Pennsylvania Bd. Of Probation and Parole v. Scott, 524 U.S. 357, 363 (1998)). 61 Strieff, 136 S. Ct. at 2061 (citing Murray v. United States, 487 U.S. 533, 537 (1988)). 62 Id. (citing Nix v. Williams, 467 U.S. 431, (1984)). 63 Id. (citing Brown v. Illinois, 422 U.S. 590 (1975)). 64 Id. 65 See generally Brown v. Illinois, 422 U.S. 590, (1975). 66 Strieff, 136 S. Ct. at Id. at 2062 (noting that in Brown v. Illinois, the court found that intervals of less than two hours typically favor suppression). 68 See Id. at Segura v. United States, 468 U.S. 796, 814 (noting that the valid warrant search was sufficiently distinguished from the prior unlawful entry and therefore dissipated the taint from the entry). 70 Strieff, 136 S. Ct. at Id. at See Id. at 2066 (Sotomayor, J. dissenting) (noting that Utah s listing of over 180,000 misdemeanor warrants in its database, and even having a backlog of outstanding warrants at the time of arrest, implies that Fackrell s warrant search was a calculated attempt to procure evidence). 73 Id. at See Id. at 2066 (Sotomayor, J., dissenting) (quoting Brown v. Illinois, 422 U.S. 590, 605 (1975)) ( The warrant check, in other words, was not an intervening circumstance separating 16

17 the stop from the search for drugs. It was part and parcel of the officer s illegal expedition for evidence in the hope that something might turn up. ). 75 Id. at Id. at 2069 (quoting Ligon v. New York, 925 F.Supp.2d 478, (S.D.N.Y.) ( The New York City Police Department has in the past trained officers to stop and question first, develop reasonable suspicion later. ). 77 See generally Id. at Id. at Id. (citing M. Alexander, The New Jim Crow (2010); W.E.B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015)). 80 See Id. at 2072 (Kagan, J., dissenting) (describing the stop as one with so little justification that the State has never even tried to defend its legality ). 81 Id. at Id. 83 See Herring v. United States, 555 U.S. 135, 144 (2009). 84 Brown v. Illinois, 422 U.S. 590, 603 (1975) ( No single fact is dispositive. ). 85 See Id. 86 Strieff, 136 S. Ct. at 2062 (noting that once Officer Fackrell discovered the warrant, he was obligated to arrest Strieff). 87 Id. at (Sotomayor, J., dissenting). 88 United States v. Leon, 468 U.S. 897, 921 n.21 (1984) ( [T]he situation in which an officer relies on a duly authorized warrant is a particularly compelling example of good faith. A 17

18 warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions. Accordingly, we believe that there should be a rule which states that evidence obtained pursuant to and within the scope of a warrant is prima facie the result of good faith.... ). 89 See generally Segura v. United States, 468 U.S. 796, 815 (1984). 90 Strieff, 136 S. Ct. at 2062 (noting that the warrant on Strieff was entirely unconnected with the stop). 91 Id. at Id. at 2066 (Sotomayor, J., dissenting). 93 Brown v. Illinois, 422 U.S. 590, 604 (1975). 94 Id. at Herring v. United States, 555 U.S. 135, 144 (2009). 96 Id. 97 Strieff, 136 S. Ct. at 2063 (citing Rodriguez v. United States, 135 S. Ct. 1609, 1616 (2015)) ( Officer Fackrell s decision to run the warrant check was a negligibly burdensome precaution for officer safety. ). 98 Davis v. U.S., 131 S. Ct. 2419, 2426 (2011) ( The rule s sole purpose... is to deter future Fourth Amendment violations. ). 99 Hudson v. Michigan, 547 U.S. 586, 591 (2006) (describing the substantial social costs of the exclusionary rule as sometimes [including] setting the guilty free and the dangerous at large. ). 100 Davis, 131 S. Ct. at

19 101 State v. Strieff, 286 P.3d 317, 320 (Utah Ct. App. 2012) (noting that Officer Fackrell s search incident to Strieff s arrest revealed methamphetamines, a small green plastic scale covered with a white powder residue, and a pipe). 102 See Davis v. Mississippi, 394 U.S. 728 (1969) (The defendant was detained at police headquarters without judicial authorization, unnecessarily required to undergo two separate fingerprinting sessions, and subjected to interrogation.). 103 Id. at 729 (Black, J., dissenting) ( Fingerprints of the petitioner, left on the window sill of [the victim s] home, were clinching evidence bringing about petitioner s conviction. ). 104 Hudson v. Michigan, 547 U.S. 586, 591 (2006). 105 See Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) ( 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. ). 106 David A. Harris, Driving While Black: Racial Profiling On Our Nation s Highways, AMERICAN CIVIL LIBERTIES UNION (June 1999), (Field reports from indicate that African Americans and Hispanic motorists were stopped on Illinois by drug units disproportionately to the number of overall motorists in particular areas.). 107 Id. 108 Alice Brennan and Dan Lieberman, Florida City s Stop and Frisk Nabs Thousands of Kids, Finds 5-Year-Olds Suspicious, THE NAKED TRUTH, (Two Florida officers admitted to being given orders when conducting stops and arrests to stop all black males between 15 and 30 years of age. ). 19

20 109 Katherine A. Macfarlane, Predicting Utah v. Strieff s Civil Rights Impact, 126 YALE L.J. F. 139, 143 (2016). 110 Id. at Id. at 144 n.29 (citing Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (quoting Ashcroft v. al-kidd, 563 U.S. 731, 743 (2011)). 112 Id. at Id. at 145 n.36 (citing Smith v. Wade, 461 U.S. 30, 56 (1983) (noting that punitive damages are available in 1983 actions only when the defendant s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. ). 114 Id. at Utah v. Strieff, 136 S. Ct. 2056, 2059 (2016) 116 See generally Brown v. Illinois, 422 U.S. 590, (1975). 117 See Davis v. U.S., 131 S. Ct. 2419, 2426 (2011). 118 See Strieff, 136 S. Ct. at I hereby certify that I have completed this submission in accordance with the Competition rules and in accordance with the collaboration and academic integrity requirements of the University of Miami School of Law Honor Code. Signed