Concerning Whether An Outstanding Arrest Warrant Attenuates the Connection between an Unlawful Detention and Evidence Seized Incident to Arrest
The Fourth Amendment exclusionary rule allows criminal defendants to suppress “fruit of the poisonous tree” — that is, evidence obtained as a result of a search or seizure that violates the Fourth Amendment. The attenuation exception to the exclusionary rule allows the evidence to be submitted despite the unlawful search or seizure because an intervening action has weakened the taint of the original unlawful act. At issue in this case is whether the attenuation exception to theFourth Amendment exclusionary rule applies when the intervening action is a lawful outstanding arrest warrant obtained from a police database. The Utah Supreme Court found that the attenuation exception did not apply to outstanding arrest warrants, holding that the attenuation exception is limited to circumstances where the intervening act is a voluntary act of the defendant’s free will (such as a confession).
Should evidence seized incident to a lawful arrest on an outstanding warrant be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful?
In December 2006, the police received an anonymous message on a drug tip line about drug activity at a particular Salt Lake City residence. Police officer Douglas Fackrell intermittently surveilled the residence over the course of a week, during which he saw defendant Edward Strieff leave the house and walk down the street. Officer Fackrell stopped Strieff with what Utah has conceded was less than reasonable articulable suspicion, thus rendering the detention unlawful.
While detained, Strieff provided his identification upon the officer’s request. Officer Fackrell called dispatch to run Strieff’s ID, which revealed that Strieff had “a small traffic warrant” outstanding. The officer arrested Strieff, and during the search incident to lawful arrest he discovered a bag of methamphetamine and drug paraphernalia in Strieff’s pockets. Strieff was charged with unlawful possession of meth and drug paraphernalia.
Strieff moved to suppress the evidence as fruit of an unlawful detention. The Utah District Court, Third District, Salt Lake Department, denied Strieff’s motion to suppress and his motion to reconsider. The district court based its decision on the three-factor test adopted by the U.S. Supreme Court and the Utah Supreme Court to determine whether evidence obtained from an unlawful police action has been attenuated from the unlawful action. The Brown v. Illinois test requires the court to weigh three factors: (1) the “temporal proximity of the arrest and the confession”; (2) “the presence of intervening circumstances”; and (3) “the purpose and flagrancy of the official misconduct.”
As characterized by the Utah Supreme Court, the district court found that Officer Fackrell believed he had reasonable articulable suspicion of drug activity in the house and that although that belief was incorrect, Officer Fackrell committed at most a good faith mistake, not a “flagrant violation of the Fourth Amendment.” Weighting the totality of the Brown factors, the district court found suppression to be “inappropriate.” Instead, the district court concluded that “the search was conducted after discovering an outstanding warrant and arresting the Defendant on that warrant, an intervening circumstance that Officer Fackrell did not cause and could not have anticipated.”
Strieff entered a conditional guilty plea and appealed the orders denying his motions to suppress and reconsider. A majority of the Utah Court of Appeals affirmed the district court’s application of the Brown factors and upheld the application of the attenuation exception. Although there had been a short temporal proximity between the unlawful detention and the warrant check, the appeals court found this factor to carry little weight because warrant checks almost always occur immediately after the initial detention. Instead, the appeals court held that an outstanding warrant is “an intervening circumstance that, in the absence of purposefulness or flagrancy, attenuates the evidence seized from the initial illegality that an outstanding warrant constitutes.” Because Officer Fackrell had acted in good faith and only stopped Strieff under a mistaken belief that he had reasonable, articulable suspicion, Strieff’s motion to suppress should be denied.
The Utah Supreme Court granted certiorari and reversed the Utah Court of Appeals, holding that “the attenuation exception is limited . . . a voluntary act of a defendant’s free will (as in a confession or consent to search).” Drawing on an extensive survey of state and federal courts, the Utah Supreme Court identified three divergent approaches to the attenuation doctrine in circumstances involving an unlawful search/seizure and an outstanding arrest warrant:
- (1) An outstanding warrant is an even more compelling case for intervening circumstance than voluntary confession;
- (2) An outstanding warrant is of minimal importance under Brown factors, while the improper detention, combined with the short time period between an unlawful detention and the warrant search, weigh against inclusion; and
- (3) An outstanding warrant doesn’t implicate attenuation doctrine at all because attenuation is limited to circumstances involving independent act of the defendant’s free will.
The Utah Supreme Court adopted the third approach, limiting the attenuation doctrine to circumstances “involving a defendant’s independent acts of free will.” First, the court observed that all U.S. Supreme Court cases applying the attenuation doctrine have involved confessions, which are independent acts of free will. Second, the discovery of an outstanding warrant is not a “unique form of lawful police work” such that it constitutes an “independent act or occurrence.” Instead, “[i]t is part of the natural, ordinary course of events arising out of an arrest or detention.” Third, application of the other two Brown factors—temporal proximity and purpose/flagrancy of violation—would be nonsensical. A substantial temporal proximity between an unlawful detention and the discovery of an outstanding warrant would actually constitute a Fourth Amendment violation in and of itself, even though the greater time gap would count in favor of the attenuation exception. And the “purpose and flagrancy” factor, which is intended to measure whether the unlawful conduct is intended to “cause surprise, fright, and confusion,” is wholly inapplicable to the outstanding warrant scenario.
The Utah Supreme Court also expressed great concern that application of the attenuation doctrine to outstanding arrest warrants—and by logical implication, any other lawful police work—would “ultimately swallow the inevitable discovery exception.” Inevitable discovery allows admission of the fruit of an unlawful search/seizure if it would have inevitably been discovered during parallel lawful police action. If any lawful police action, including a check for outstanding warrants, attenuated the taint of an unlawful search, then inevitable discovery would no longer exist as a distinct legal doctrine.
Instead of the attenuation exception, the Utah Supreme Court held that when an unlawful search or seizure is followed by the discovery of an outstanding warrant, the inevitable discovery doctrine applies. In this circumstance, there are actually “two parallel acts of police work—one a violation of the Fourth Amendment (detention without reasonable suspicion) and the other perfectly legal (execution of an outstanding arrest warrant).” But unless the state can show that the evidence discovered during a search incident to lawful arrest “would inevitably have come about regardless of the unlawful search or seizure,” the evidence must be excluded. Because it would be difficult to show that “Strieff might ultimately have had this contraband in his possession on any future date on which he may have been arrested on the outstanding warrant,” Strieff’s motion to suppress must be granted.
The U.S. Supreme Court granted cert on October 1, 2015. On June 20, 2016, the Supreme Court reversed the Utah Supreme Court. Justice Thomas, writing for a 5-3 majority, held that “that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.” In dissent, Justice Sotomayor cautioned readers that 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. She warned that by “legitimizing the conduct that produces this double consciousness, 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 cataloged.”
EPIC has a long history of advocating for robust Fourth Amendment protections, particularly as law enforcement databases grow in size and scope. In Hiibel v. Sixth Judicial District Court of Nevada, the Supreme Court addressed the constitutionality of a Nevada statute requiring persons who are detained only on a suspicion of criminal activity to disclose their identities. EPIC submitted an amicus brief describing how an individual’s name now gives officers access to sophisticated government databases containing an extraordinary amount of detailed (and sometimes inaccurate) personal information. Forcing individuals to disclose their identities during stops where police officers have less than probable cause raises constitutional concerns. The Supreme Court ultimately upheld the constitutionality of the statute, but emphasized that its constitutionality lay in the Terry v. Ohio requirement that a stop for less than probable cause “must be justified at its inception and reasonably related in scope to the circumstances which justified the initial stop.”
In Herring v. United States, the Supreme Court considered whether incorrect information in a government database that led to a defendant’s unlawful and warrantless arrest tainted the evidence gathered incident to the arrest. EPIC filed an amicus brief urging the Court to exclude evidence stemming from a clerical mistake made by law enforcement in order to safeguard privacy in an era of rapid technological change. EPIC’s brief argued that the dramatic rise of law enforcement databases riddled with inaccuracies and incomplete information puts individuals at risk and jeopardizes criminal investigations. In a 5-4 decision, the Court ruled in favor of the Government, holding that the exclusionary rule does not extend to evidence gathered as a result of police negligence.
EPIC also filed an amicus brief in Tolentino v. New York, a Supreme Court case questioning whether the Fourth Amendment requires a court to suppress evidence of a driver’s suspended license when the police obtained that evidence after an illegal search. EPIC argued that the evidence should be suppressed, stating that “the risk is real that car stops will increasingly become pretextual because of the opportunity to search a government database for data unrelated to the reason that gave rise to the original stop.” The Supreme Court dismissed the case as improvidently granted.
EPIC has also challenged the growth of large government databases containing biometric identification, such as the FBI’s Next Generation Identification database and federal “information fusion centers,” arguing that the scope and interoperability of these databases will facilitate the propagation of inaccurate information and could lead to abuse.
United States Supreme Court, No. 14-1373
- Petitioner Utah’s Brief
- Amici in support of Petitioner Utah:
- Petition for Writ of Certiorari
- Brief of Respondent Strieff in Opposition
- Reply of Petitioner Utah
- Brief Amici Curiae State of Michigan and Ten Other States in Support of Petitioner Utah
Supreme Court of the State of Utah, No. 20120854
- State v. Strieff, 357 P.3d 532 (Utah 2015)
Court of Appeals of Utah, No. 20100541-CA
- State v. Strieff, 286 P.3d 317 (Utah Ct. App. 2012)