A Downward Spiral: Has the Fourth Amendment Been Rendered Entirely Meaningless? I. Introduction

Transcription

1 A Downward Spiral: Has the Fourth Amendment Been Rendered Entirely Meaningless? I. Introduction Imagine you are an ordinary, thirty-year-old United States citizen of any gender, ethnicity, or race. It is early Friday evening and you just got in your car to drive home from work to pick up your significant other. The two of you have a flight to catch to New York City, where you will be spending your upcoming July Fourth weekend. Nothing can lower your sense of euphoria as you cruise down the road, fixated on the beautiful sunset. Then, just as you are about to turn onto your street, you see red and blue flashing flights in your rearview mirror. You are not worried, though, since you have never been pulled over before and still have plenty of time until your flight departs. After approaching your car, the officer tells you that you were not wearing a seat belt 1 and takes your license and registration back to his car. Images float through your head about having to pay for a ticket or maybe even fight it in court, which seems somewhat exciting. A few minutes pass and then, rather shockingly, the officer orders you out of the car. Dismayed and confused, you oblige his command, and within seconds, he has you pinned against your car in handcuffs. In plain public, as your neighbors watch you intently, 2 he pats down your armpits, legs, and even groin area. 3 The next thing you know, without ever having been given any explanation as to what you did wrong, you find yourself being fingerprinted and having your cheeks swabbed for DNA inside a police station beside real criminals. 4 Later, you are told that all of this transpired because the officer discovered that a warrant had been issued for your arrest due to an unpaid parking ticket that you received two years prior, which, of course, you have no recollection of. Surprisingly, countless Americans are involved in sequences just as intrusive and even more severe than this one each and every day, whether outside of their cars or in front of their places of business. 5 As incomprehensible as it may seem, a case that the Supreme Court decided 1

2 in June 2016, Utah v. Strieff, 6 justifies officers doing this, even though the reason why one is stopped often has no relation to the pre-existing warrant. The Fourth Amendment protects all citizens against unreasonable searches and seizures because it is the right of the people to be secure in their persons, houses, papers, and effects. 7 If it has not already, Strieff, coupled with the deterrence-based approach to the exclusionary rule that the Supreme Court has adopted since Mapp v. Ohio, 8 has the potential to erode those vital safeguards, encouraging officers that they have nothing to lose and much to gain by conducting a stop even when it is supported by shaky facts. 9 This note will discuss the Supreme Court s error in how it applied the exclusionary rule to the officer s actions in Strieff, and the ultimate, detrimental impact that the court s balancing test method has had on the Fourth Amendment. Part II delves into the development of the court s deterrence-based model over the better part of the last half century and how it has afforded law enforcement with an increasing amount of leeway and power, while severely reducing individuals privacy interests. Part III provides an in-depth overview of how the court arrived at its decision in Strieff, discussing the case s facts, majority s reasoning, and both dissents positions. Part IV analyzes the damaging effects that a decision like Strieff, which provides officers with a practically unchecked power, can have on all citizens. Part V offers conclusory thoughts on the decision s future impact. II. Transitioning to a Deterrence-Based Application (or Lack Thereof) of the Exclusionary Rule At its core, the exclusionary rule was created to mandate that courts exclude evidence that officers obtain in violation of the Fourth Amendment. 10 However, the rule is accompanied by three primary exceptions. The first two, the independent source and inevitable discovery doctrines, are not at issue here, but the third, the attenuation doctrine, is. The attenuation doctrine provides that 2

3 evidence illegally obtained is admissible if the nexus between the unconstitutional act and evidence is sufficiently attenuated so that any tainting of the evidence has been dissipated. 11 A. Judicial Integrity: Preserving the Fourth Amendment at All Costs As early as the late 1800s, the court s position on admitting illegally obtained evidence was extremely rigid 12. As it reasoned in both Boyd v. United States and Weeks v. United States, courts could not admit any evidence discovered as a result of a constitutional violation, no matter how well-intentioned or minute the government s illegality was. 13 Even if a mistake was made negligently or in good faith, 14 the court had to exclude the evidence resulting from it to keep tyranny at bay and preserve [its] moral standing as guardians of the citizens rights. 15 As Justice Brandeis reasoned in her Olmstead v. United States dissent, to admit constitutionally tainted evidence would be to drag the courts into the illegality itself. 16 The court had a moral duty to make sure that officers were subjected to the same rules of conduct that are commanded to the citizen; crime is contagious, so if the government became a habitual lawbreaker, it would have invited anarchy and lawlessness would have spread like a disease throughout the nation. 17 This point of view culminated with the court s decision in Mapp v. Ohio, in which Justice Clark declared that even though the exclusionary rule technically was not written into the Constitution, it was an integral part of the Fourth Amendment. 18 Thus, even if it was only judicially implied, admission of evidence seized in violation of the Fourth Amendment [was] a constitutional violation itself. 19 B. Mapping Out the Development of the Deterrence Model Nonetheless, the demise of the judicial integrity approach centered around preserving the constitution initiated with Wong Sun v. United States, just two years after Mapp. In Wong Sun, for the first time, the Supreme Court was willing to definitively make the concession that not all evidence is fruit of the poisonous tree simply because it would not have come to light but for the 3

4 illegal actions of the police. 20 Instead, the more appropriate inquiry to make was whether the evidence to which instant objection is made has been come at by exploitation of that illegality or means sufficiently distinguished to be purged of the primary taint. 21 From thereon out, case by case, the court continued to cut back, providing law enforcement with increasing levels of power at the expense of individuals privacy interests. In Brown v. Illinois, the court created another exception to the exclusionary rule, establishing that a mere Miranda violation was not poisonous enough to break the taint. 22 Rather, three factors were to be balanced against one another, similar to a Terry v. Ohio reasonable suspicion analysis, 23 on a case-by-case basis to determine whether the taint had been dissipated: (1) the temporal proximity between when the unconstitutional conduct occurred and when the evidence was found, (2) intervening circumstances, and (3) the flagrancy of the government actor s transgressions. 24 Under the test, though, no single fact is dispositive, and all three factors are equally as relevant. 25 In addition to Miranda violations, the court has been willing to concede that an officer making a mistake after reasonably relying on a facially valid search warrant 26 or forgetting to knock & announce before entering a suspect s property 27 each are not poisonous enough infractions to attenuate the taint either. Most notably, the court justified this position in United States v. Leon by declaring that excluding the evidence would not result in appreciable deterrence, so its use in the instant situation [was] unwarranted. 28 Since then, the court has increasingly declined to utilize the exclusionary rule because it has substantial social costs, interferes with the criminal justice system s truth-finding function, and might generate disrespect for the law and administration of justice. 29 The court has also afforded officers with the ability to both fingerprint detainees 30 and ask for identification during a Terry stop 31 because those intrusions are much less serious than other types of police searches and detentions. 32 4

5 C. Who Needs the Fourth Amendment Anyway? Now, the essential question that the court asks when considering whether to apply the exclusionary rule has become whether the social cost of allowing a potentially guilty defendant to go free is outweighed by the potential deterrent effect on the police behavior in question. 33 This truncated cost-benefit analysis that reached its pinnacle, or so it seemed before Strieff, in Chief Justice Roberts opinion in Herring v. United States could not be any more different than the previous judicial integrity model. In Herring, the court opined that the deterrence benefits of excluding evidence outweighs its substantial social costs 34 only when an officer s behavior is exceptionally flagrant. 35 As we will see even more so in Strieff, it seems as though this viewpoint has completely manifested itself and established a tendril in the court s analysis, so prevalently that it does not appear as though any victories for the individual will be scored any time soon. III. Utah v. Strieff: The Supreme Court s Latest Application of the Exclusionary Rule A. The Facts and Procedural History In December 2006, after the South Salt Lake City police received an anonymous tip alleging that narcotics activity was transpiring at a nearby residence, a narcotics detective, Douglas Fackrell, was assigned to investigate. 36 For about three hours over the course of one week, Officer Fackrell watched the home and observed visitors repeatedly coming and going in the form of short term traffic. 37 This traffic was not terribly frequent, 38 but because people would arrive at the house and then leave soon after, usually within a few minutes, 39 Fackrell believed that its residents and frequents were dealing drugs. 40 Although he never saw him enter the house, while conducting surveillance, Fackrell saw the defendant, Edward Strieff, leave the house and walk down the street toward a nearby convenience store. 41 Fackrell then followed Strieff into the parking lot, detained him, requested 5

6 his identification, and asked him what he was doing at the residence, all of which Strieff complied with. 42 Fackrell testified that his sole reason for detaining Strieff was because Strieff was coming out of the house that he had been watching and he decided that he would like to ask somebody if he could find out what was going on in there. 43 During this process, Fackrell provided Strieff s information to a police dispatcher to check if he had any outstanding warrants. 44 After it was relayed to Fackrell that Strieff had an unpaid small traffic warrant, Fackrell arrested Strieff and performed a search incident to arrest of his person, which resulted in Fackrell finding a baggie of methamphetamine and drug paraphernalia. 45 The state then charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. 46 Strieff moved to suppress the evidence, claiming that it was the fruit of an unlawful investigatory stop. 47 Nevertheless, the trial court denied his suppression motion, ruling that even though Fackrell had detained and pursued Strieff without having the necessary level of reasonable suspicion 48 and only a short amount of time had lapsed between the illegal stop and search, 49 the evidence could not be excluded because the taint had been sufficiently attenuated. 50 The trial court further held that the stop was not a flagrant violation of the Fourth Amendment, but a good faith mistake on Fackrell s part, and that the intervening circumstance, the discovery of Strieff s outstanding warrant, was not caused and could not have been anticipated by Fackrell. 51 The Court of Appeals affirmed the trial court under the attenuation doctrine, applying the same reasoning that after weighing the Brown factors, Fackrell s violation was not flagrant and the discovery of Strieff s outstanding arrest warrant was a powerful enough intervening circumstance to dissipate the taint of the unlawful detention. 52 Appropriately, the Utah Supreme Court reversed, siding with Judge Thorne s Appellate Court dissent 53 in holding that not only is the purpose and flagrancy factor ill-suited to the outstanding warrant scenario, 54 but also, more 6

7 importantly, that the discovery of an outstanding warrant is less than a factor of minimal importance under the attenuation doctrine. 55 The court reasoned that when an outstanding warrant is discovered, there is no break in the chain of circumstances from the illegal detention to the discovery of evidence; it is part of the natural, ordinary course of events arising out of an arrest or detention. 56 B. The (Incorrectly Focused) Majority Opinion The majority disagreed with the Utah Supreme Court, reversing its decision while erroneously focusing on peripheral parts of the Utah Supreme Court s argument. 57 Instead of directing the bulk of its attention on one of the most important issues, whether the discovery of an arrest warrant qualifies as an intervening circumstance, the court decided to address it just as equally as the third Brown factor, flagrancy, which it did not sufficiently address either. Rather, the court merely utilized Segura v. United States, 58 in which it applied an entirely different exception to the exclusionary rule than the attenuation doctrine, the independent source doctrine, to conclude that the presence of intervening circumstances strongly favors the state, 59 even admitting that Officer Fackrell lacked reasonable suspicion to initially stop Strieff. 60 The majority commenced its argument by conceding that the temporal proximity between Officer Fackrell s unlawful stop of Strieff and the resulting search incident to arrest favors suppression, which is undisputed. However, it then incorrectly applied Segura s holding, asserting that because the warrant there was wholly unconnected with the [arguably illegal] entry and was known to the agents well before the initial entry, the mere existence of a valid warrant favors pronouncing that the connection between unlawful conduct and the discovery of evidence is sufficiently attenuated to dissipate the taint. 61 The court reasoned that the warrant implicating Strieff was valid and existed before Fackrell began investigating the involved residence, so 7

8 Fackrell s arrest of Strieff was a ministerial act that was independently compelled by the preexisting warrant. 62 In essence, the court spent one sentence truly explaining why the warrant was entirely unconnected with the stop, 63 as opposed to the final three paragraphs of analysis it devoted to improperly explaining why Fackrell s mistakes were at most negligent 64 and made in good-faith, and actions were not part of any systemic or recurrent police misconduct. 65 C. The Two (Spot On) Dissents Justice Kagan s dissent is noteworthy in that it highlights a considerable trepidation, that the Strieff decision encourages officers to both stop and detain individuals without even having reasonable suspicion, 66 but Justice Sotomayor s dissent is much more impactful. Sotomayor s overarching point is that the Strieff ruling provides law enforcement officials with an unchecked power that possesses the possibility of becoming so magnitudinous that officers will be able to stop anyone at any time, even if [he or she is] not doing anything wrong. 67 Resurrecting many of the foundational principles of the seemingly extinct judicial integrity approach, Sotomayor is afraid that admitting illegally obtained evidence functions as a reward for manifest neglect, if not an open defiance of the prohibitions of the Constitution 68 on the part of law enforcement. Additionally, Sotomayor rebuts the majority s brief argument that the discovery of an arrest warrant constitutes an intervening circumstance, rightfully declaring that the warrant check here was part and parcel of the officer s illegal expedition for evidence in the hope that something might turn up. 69 Most notably, Officer Fackrell illegally stopped Strieff and immediately ran a warrant check, 70 knowing he would almost surely discover an outstanding warrant for Strieff s arrest because at the time, the county had a backlog of outstanding warrants so large that it faced the potential for civil liability. 71 To rebut the majority s utilization of Segura, Sotomayor asserts that there, although the officers illegally went into the apartment to gain probable cause to secure 8

9 the warrant, they only found the incriminating evidence after obtaining the warrant. 72 Thus, the officers illegal conduct had nothing to do with their procurement of a warrant, while here, Fackrell s illegal conduct in stopping Strieff was essential to his discovery of a warrant. 73 But, again, Sotomayor is more concerned with the ripple effect that the decision could have on the population at large because of how surprisingly common outstanding warrants are. 74 Over 7.8 million unpaid warrants, mostly for minor offenses, exist in databases all over the United States, and that might not even account for all of them. 75 For example, in Ferguson, Missouri, an astounding 16,000 of the town s 21,000 residents had outstanding warrants against them. 76 And, in New Orleans, Louisiana, out of the 60,000 arrests made in a recent year, about 20,000 were prompted by residents having outstanding traffic or misdemeanor warrants for miniscule infractions such as not paying tickets. 77 Ultimately, because of how many warrants exist at any given time in cities all over, Sotomayor is worried that by legitimizing this illegal conduct, officers everywhere are given a license to verify [any citizen s] legal status at any time. 78 VI. How in the World Did We Get Here? The majority correctly followed precedent when it utilized the attenuation doctrine to determine whether the evidence implicating Strieff should be excluded, employed the three Brown factors in doing so, and acknowledged that clear temporal proximity existed between Strieff s improper detention and the discovery of the arrest warrant, 79 but that is just about it. The court absolutely should not have held that the discovery of an arrest warrant was an intervening circumstance, or, more significantly, that this was an isolated 80 mistake made by one officer in one small county in South Salt Lake City, Utah. A. An Everlasting Impact: Breaking Down the Numbers 9

10 In describing why Officer Fackrell s conduct was not flagrant, the court makes a grave error by not spending nearly enough time explaining why this unlawful stop was not part of any chronic police misconduct. 81 Instead of aptly balancing the governmental and individual interests 82 on hand, as has been how it has applied the exclusionary rule for nearly fifty-five years since Wong Sun, the court simply declares that all the evidence suggests that the stop was an isolated instance of negligence without truly assessing if there was any egregious police misconduct most in need of deterrence. 83 As the court notes, the exclusionary rule s principal function is to deter police misconduct. 84 While that is technically true, what the court conveniently left out is that a proper inquiry focuses on deterring future violations. 85 As Justice Kagan accurately remarked in her dissent, as the court declines to apply to exclusionary rule more, the officer s incentive to violate the Constitution thus increases. 86 From here on, he sees potential advantage in stopping individuals without reasonable suspicion, exactly what Officer Strieff did here, which is exactly the temptation the exclusionary rule is supposed to remove. 87 In order to predict the future, it is essential to examine the past. To see why Justices Kagan and Sotomayor were so afraid of the future impact that decisions like Strieff could have on all United States citizens, one need not look further than the overwhelming aggregate of statistics nationwide that prove that the current approach plainly encourage[s] systematic and recurring violations of the Fourth Amendment, 88 void of consequence. Because of the outlandish quantity of outstanding warrants that exist in cities all over the country, just like in Ferguson and New Orleans, law enforcement officials have drastically altered their methods to produce more arrests. Miami Gardens, Florida, 89 St. Louis, Missouri, Newark, New Jersey, and New York City 90 are some of the cities that have particularly received the brunt of these new, harsh techniques. In Miami Gardens alone, between 2008 and 2013, 99,980 people were stopped just so an officer could check 10

11 to see if they had any outstanding warrants; to make matters worse, almost 1,000 of those people were stopped more than ten times, 250 more than twenty times, and twenty-seven more than fifty times. 91 In St. Louis, officers routinely stop people for no reason other than an officer s desire to check whether the subject had a municipal arrest warrant pending. 92 In Newark, over a fouryear period, officers stopped 52,235 pedestrians and ran warrant checks on 39,308 of them; out of those stops, ninety-three percent would have been considered unsupported by articulated reasonable suspicion. 93 And, in New York City, the police department has long been training officers to stop and question first, develop reasonable suspicion later. 94 As if it was not bad enough, these innovative approaches have had an especially disproportionate impact on minorities, specifically people of color. 95 For instance, Miami Gardens police officers were instructed by their superiors to stop all black males between fifteen and thirty years old, 96 while black citizens of all backgrounds in Oklahoma, Arizona, California, Colorado, and Connecticut were stopped just because their skin color indicated to police that they would be more likely to have outstanding warrants. 97 Police misconduct cannot be deterred without looking at the bigger picture, period. For the court to claim that this was an isolated, nonrecurring, one-of-a-kind situation 98 was inappropriate and unacceptable. B. The Only Way to Win a 1983 Claim is to Go Back to 1983 What is more, the court also erred when it, without explaining why, professed that its decision would not inspire police officers to engage in dragnet searches if it admitted the evidence because such wanton conduct would expose police to civil liability under 42 U.S.C The only manner in which a claimant can recover substantial damages pursuant to 1983 is to succeed on a false arrest claim. 100 But, to be eligible to bring a false arrest claim, a claimant cannot have entered into a guilty plea or have gotten convicted, as either establishes probable cause 11

12 for arrest. 101 However, because the Strieff ruling makes it even less likely that incriminating evidence will be excluded, more defendants will be forced to plead guilty to receive lesser charges, and thus, will be convicted and subsequently barred from filing false arrest claims. 102 Even in the rare event that the court actually suppresses evidence, a claimant must still overcome the nearly insurmountable obstacle presented by [the state s] ability to assert qualified immunity, which protects all but the plainly incompetent. 103 Then, if the state s qualified immunity defense is somehow defeated, a 1983 claimant s damages will be limited to damages caused by the unconstitutional stop alone, which are solely nominal. 104 So, in reality, claimants can only recover nominal damages at best pursuant to 1983 claims, which undoubtedly does not submit police to significant enough civil liability to deter continued unconstitutional stops. 105 V. Conclusion All in all, unfortunately, for the Supreme Court, suppression of evidence has always been [its] last resort, not [its] first impulse. 106 The statistics and countless examples paint the whole picture; decisions like Strieff teach law enforcement that as long as [they] find an open warrant and there is a substantial chance that they will in every encounter all will be forgiven. 107 If the Strieff majority would have truly balanced the government interests on hand with individuals privacy interests, both in the case and future, it absolutely would have found that the cost of excluding evidence illegally obtained as a result of suspicionless stops is far less than the message that admitting it sends to law enforcement. As Justice Sotomayor so eloquently proclaims in her dissent, the majority flat out failed to realize that its decision would further allow an officer to stop any citizen of any race for whatever reason he wants, 108 whenever and wherever he wants to. Sadly, it is progressively becoming a reality with every day that passes that we are no longer citizen[s] of a democracy, but the subject[s] of a carceral state, just waiting to be cataloged

13 1 See Utah v. Strieff, 136 S. Ct. 2056, 2070 (2016) (Sotomayor, J., dissenting) (quoting Atwater v. Lago Vista, 532 U.S. 318, (2001)). 2 See id. (Sotomayor, J., dissenting). 3 See id. (Sotomayor, J., dissenting) (quoting Terry v. Ohio, 392 U.S. 1, 17 (1968)). 4 See id. (Sotomayor, J., dissenting) (quoting Florence v. Bd. of Chosen Freeholders of Cty. of Burlington, 566 U.S. 318 (2012); Maryland v. King, 133 S. Ct. 1958, 1980 (2013)). 5 Alice Brennan & Dan Lieberman, Florida City s Stop and Frisk Nabs Thousands of Kids, Finds 5-Year-Olds Suspicious, Fusion TV (May 9, 2004, 11:23 AM), 6 Strieff, 136 S. Ct. at Herring v. United States, 555 U.S. 135, 139 (2005) (quoting Arizona v. Evans, 514 U.S. 1, 10 (1995)). 8 Scott E. Sundby & Lucy B. Ricca, The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule, 43 TEXAS TECH L. REV. 391, 398 (2010) (quoting Mapp v. Ohio, 367 U.S. 634 (1961)). 9 Brief of American Civil Liberties Union & National Ass n of Criminal Defense Lawyers as Amici Curiae in Support of Respondent at 10-11, Utah v. Strieff, 136 S. Ct (2016), (No ). 10 Strieff, 136 S. Ct. at 2061 (quoting Mapp, 367 U.S. at 655). 11 State v. Strieff, 357 P.3d 532, 540 (Utah) (citing Wong Sun v. United States, 317 U.S. 471, 491 (1963)). 13

14 12 See Sundby & Ricca, supra note 8, at 393 (quoting Boyd v. United States, 116 U.S. 616, 625 (1886)). 13 Id. at 399 (quoting Boyd, 116 U.S. at 635; Weeks v. United States, 232 U.S. 383, 392 (1914)). 14 Id. at 400 (quoting Mapp, 367 U.S. at 643, ). 15 Id. at 399 (quoting Weeks, 232 U.S. at 392). 16 Id. at 402 (quoting Olmstead v. United States, 277 U.S. 438, (1928) (Brandeis, J., dissenting)). 17 Id. at (quoting Olmstead, 277 U.S. at (Brandeis, J., dissenting)). 18 See id. at 412 (quoting Mapp, 367 U.S. at 657, 660) ( declaring it to be part of the Fourth Amendment ). 19 Id. at (quoting Mapp, 367 U.S. at 649). 20 Wong Sun v. United States, 317 U.S. 471, Id. at 488 (quoting Maguire, Evidence of Guilt, 221 (1959)). 22 See Brown v. Illinois, 422 U.S. 590, 603 (1975). 23 See Terry v. Ohio, 392 U.S. 1, 30 (1968). 24 Brown, 422 U.S. at Id. 26 See United States v. Leon, 468 U.S. 897, (1984). 27 See Hudson v. Michigan, 547 U.S. 586, (2006). 28 Leon, 468 U.S. at 909 (quoting United States v. Janis, 428 U.S. 433, 454 (1976)). 29 Id. at (quoting Stone v. Powell, 428 U.S. 465, 491 (1976)). 30 See Davis v. Mississippi, 394 U.S. 721, (1969). 31 See Hiibel v. Nevada, 542 U.S. 177, 193 (2004). 14

15 32 Davis, 394 U.S. at Scott E. Sundby & Lucy B. Ricca, The Majestic and the Mundane: The Two Creation Stories of the Exclusionary Rule, 43 TEXAS TECH L. REV. 391, 414 (2010) (quoting Herring v. United States, 555 U.S. 135, (2005) (citing Illinois v. Krull, 480 U.S. 340, (1987))). 34 Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006)). 35 See Sundby & Ricca, supra note 32, at 414 (quoting Herring, 555 U.S. at 140). 36 Strieff, 136 S. Ct. at State v. Strieff, 357 P.3d 532, 536 (Utah 2015). 38 Id. 39 Id. 40 Strieff, 136 S. Ct. at Id. at 2060; Strieff, 357 P.3d at Strieff, 136 S. Ct. at 2060; Strieff, 357 P.3d at Strieff, 357 P.3d at Id. 45 Id. 46 Strieff, 136 S. Ct. at Strieff, 357 P.3d at Id. at ( given that Officer Fackrell had not seen Strieff enter the house, did not know how long he had been there, and knew nothing of him other than that he left the house ). 49 Strieff, 136 S. Ct. at Strieff, 357 P.3d at

16 51 Id. 52 Id. 53 State v. Strieff, 286 P.3d 317, (Utah Ct. App. 2012) (Thorne, J., dissenting). 54 Strieff, 357 P.3d at Id. at 543 (quoting State v. Frierson, 926 So. 2d 1139 (Fla. 2006) (Pariente, C.J., dissenting)) ( it is a matter that just doesn t implicate the doctrine at all ). 56 Id. at (emphasis added). 57 Utah v. Strieff, 136 S. Ct. 2056, (2016) ( The Utah Supreme Court read our precedents as applying the doctrine only to circumstances involving an independent act of a defendant s free will in confessing to a crime or consenting to a search. ). 58 Segura v. United States, 486 U.S. 796 (1984). 59 Strieff 136 S. Ct. at Id. 61 Id. (quoting Segura, 486 U.S. at 815). 62 Id. at Id. ( Officer Fackrell s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. ) 64 Id. at Id. at See id. at 2074 (Kagan, J., dissenting). 67 Id. at 2064 (Sotomayor, J., dissenting). 68 Id. at (Sotomayor, J., dissenting) (quoting Weeks v. United States, 232 U.S. 383, 394 (1914)). 16

17 69 Id. at 2066 (Sotomayor, J., dissenting). 70 Id. (Sotomayor, J., dissenting). 71 Id. (Sotomayor, J., dissenting) (quoting Dept. of Justice, Bureau of Justice Statistics, Survey of State Criminal History Information Systems, 2014 (2015) (Table 5a), online at Inst. for Law and Policy Planning, Salt Lake County Criminal Justice System Assessment 6.7 (2004), online at 72 Id. at 2067 (Sotomayor, J., dissenting). 73 Id. (Sotomayor, J., dissenting). 74 Id. at 2068 (Sotomayor, J., dissenting). 75 Id. (Sotomayor, J., dissenting). 76 Id. (Sotomayor, J., dissenting) (quoting Dept. of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 6, 55 (2015), online at 77 Id. (Sotomayor, J., dissenting) (quoting Dept. of Justice, Civil Rights Div., Investigation of the New Orleans Police Department 29 (2011), online at 78 Id. at 2070 (Sotomayor, J., dissenting). 79 Id. at 2062 ( The first factor, temporal proximity, favors suppressing the evidence ). 80 Id. at 2069 ( That does not mean these stops are isolated instance[s] of negligence. ). 81 See Id. at

18 82 See Thomas K. Clancy, The Purpose of the Fourth Amendment and Crafting Rules to Implement That Purpose, 48 Rich. L. Rev. 479, 494 (2014) (quoting Maryland v. King, 133 S. Ct. 1958, 1980 (2013)). 83 Strieff, 136 S. Ct. at Id. (quoting Davis v. United States, 564 U.S. 229, (2011)). 85 See Katherine A. Macfarlane, Predicting Utah v. Strieff s Civil Rights Impact, 126 YALE L.J. F. 139, 140 (2016), (emphasis added). 86 Strieff, 136 S. Ct. at 2074 (Kagan, J., dissenting). 87 Id. (Kagan, J., dissenting). 88 Brief of American Civil Liberties Union & National Ass n of Criminal Defense Lawyers as 1373). 89 E.g., Alice Brennan & Dan Lieberman, Florida City s Stop and Frisk Nabs Thousands of Kids, 91 Brennan & Lieberman, supra, note Strieff, 136 S. Ct. at 2068 (Sotomayor, J., dissenting) (quoting Dept. of Justice, Civil Rights Div., Investigation of the Ferguson Police Department 49, 57 (2015), online at Amici Curiae in Support of Respondent at 11, Utah v. Strieff, 136 S. Ct (2016), (No. 14- Finds 5-Year-Olds Suspicious, Fusion TV (May 9, 2004, 11:23 AM), 90 E.g., Strieff, 136 S. Ct. at (Sotomayor, J., dissenting). 18

19 93 Id. at 2069 (Sotomayor, J., dissenting) (quoting Dept. of Justice, Civil Rights Div., Investigation of the Newark Police Department 8, 19, n. 15 (2014), online at 94 Id. (Sotomayor, J., dissenting) (quoting Ligon v. New York, 736 F.3d 118 (2d Cir. 2013)). 95 Id. at 2070 (Sotomayor, J., dissenting) (quoting M. Alexander, The New Jim Crow (2010)); Brief of American Civil Liberties Union & National Ass n of Criminal Defense Lawyers as Amici Curiae in Support of Respondent at 13, Utah v. Strieff, 136 S. Ct (2016), (No ). 96 Brennan & Lieberman, supra, note See David A. Harris, Driving While Black: Racial Profiling on Our Nation s Highways, ACLU (June 1999), 98 See Strieff, 136 S. Ct. at Id. at 2064 (citing 42 U.S.C. 1983; Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 690 (1978); Segura v. United States, 468 U.S. 796, 812) (1984)). 100 See Katherine A. Macfarlane, Predicting Utah v. Strieff s Civil Rights Impact, 126 YALE L.J. F. 139, 143 (2016), (quoting Alla v. Verkay, 979 F. Supp. 2d 349, 371 (E.D.N.Y. 2013)). 101 See id. at 143 (quoting Johnson v. Pugh, No. 11-CV-385 RRM MDG, 2013 WL , at *1, *2 (E.D.N.Y. June 18, 2013). 102 See id. 103 Id. at 144 (quoting Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (quoting Ashcroft v. al-kidd, 563 U.S. 731, 743 (2011))). 19

20 104 Id. at See id. at Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016) (quoting Hudson v. Michigan, 547 U.S. 586, (2006)). 107 Brief of American Civil Liberties Union & National Ass n of Criminal Defense Lawyers as Amici Curiae in Support of Respondent at 13, Utah v. Strieff, 136 S. Ct (2016), (No ). 108 Strieff, 136 S. Ct. at 2069 (Sotomayor, J., dissenting). 109 Id. at 2071 (Sotomayor, J., dissenting). 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 [606268]. 20