“[I]f the laws furnish no remedy for the violation of a vested legal right,” the United States does not deserve to be called “a government of laws, and not of men.” So wrote Chief Justice John Marshall in the landmark case of Marbury v. Madison, affirming a principle that seems so obviously correct as to be unnecessary to articulate: Where there is a rights-violation, there must be a remedy. But the Supreme Court’s recent decision in Utah v. Strieff raises pressing questions about the extent to which that principle is honored in our Fourth Amendment jurisprudence when citizens’ rights are violated by police officers.
The facts of Strieff are relatively straightforward. After receiving an anonymous tip about drug activity, narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence over the course of a week. Observing that visitors often arrived and then left within a couple of minutes, Fackrell concluded that traffic at the residence was consistent with drug sales activity. In an effort to (as Fackrell later put it) “find out what was going on [in] the house” Fackrell detained Edward Strieff at a nearby parking lot shortly after seeing Strieff exit the house, identifying himself and asking Strieff what he was doing at the house. Fackrell then requested Strieff’s identification and relayed the information to a police dispatcher, who informed Fackrell that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell arrested Strieff, searched him and found methamphetamine and drug paraphernalia. Strieff was subsequently charged with unlawful possession of the latter items. At trial, the prosecutor conceded that Fackrell had detained Strieff without reasonable suspicion of unlawful conduct, which the Supreme Court has held to be required by the Fourth Amendment before officers may make warrantless stops.
Strieff’s Fourth Amendment rights, then, had been violated. What remedies are available to him? The Constitution declares itself to be the “supreme Law of the Land” and is designed to implement a political philosophy according to which “We the People” (understood as rights-bearing individuals) entrust government officials with limited powers and accord them bounded discretion to act on our behalf. In the language of 18th-century fiduciary law (and the Constitution was crafted as a fiduciary document—it is a “great power of attorney,” as James Iredell put it), government officials are our agents; we are the principals. The very notion of agents who are broadly exempt from civil liability for injuring their principals—for betraying their trust in the most direct and profound sense—is incoherent, and is irreconcilable with constitutional supremacy. It is thus appropriate that in the early republic government officials were held personally liable in tort for injuring private citizens, although the government typically indemnified officials who were acting in accordance with their instructions and in good faith. Officials could shield themselves from civil liability by securing warrants, but when those warrants were facially unlawful or officials exceeded their scope, officials stood before the law like anyone else.
Beginning in the mid-19th century, however, judges and legislatures began to grant officials what would come to be known as “qualified immunity.” Qualified immunity began as a requirement that officials be shown to have acted with malice rather than mere negligence before they could be held liable for injuring private citizens. In the 1967 case of Pierson v. Ray the Supreme Court (unconvincingly) construed Section 1983, the federal statute that authorizes civil suits against state officials who violate constitutional and statutory rights, as incorporating qualified immunity, thus writing a defense for acts that did not violate clearly established law into the fabric of federal law. Qualified immunity has metastasized over time into an almost insuperable bar to civil liability for all but the most egregious and incompetent official misconduct. Further, when the Court construed Section 1983 to authorize civil suits against municipalities as well as individual officials, it rejected respondaet superior liability—that is, the doctrine that employers are vicariously responsible for the torts that their employees commit in the course of their employment—thus treating municipal employers differently than private employers. Only when a government entity’s policy or custom inflicts an injury can that entity be successfully sued under Section 1983—and establishing the requisite connection between policy or custom and injury is very difficult.
A civil suit is thus a long shot for Strieff. But there is another option for people in his position. Those who claim to have been subjected to an unreasonable search or seizure in violation of the Fourth Amendment can move to exclude evidence acquired through that violation from a subsequent criminal trial. This “exclusionary rule” is not part of the Constitution’s linguistic meaning but, rather, is a constitutional construction—a means of putting the Constitution’s meaning into effect. While constitutional constructions are uncontroversial in other contexts—for instance, few people criticize the Court for subjecting regulations that target speech on the basis of its communicative content to more demanding scrutiny than content-neutral regulations of the time, place and manner of speech—the exclusionary rule has been subjected to withering criticism on the grounds that it does not in fact deter officials from engaging in unlawful conduct, unjustly punishes innocent members of the public for police officers’ blunders by allowing the guilty to go free, and thwarts the truth-seeking function of adjudication by excluding evidence that is highly probative of guilt. Judicial discomfort with the exclusionary rule—as Professor Akhil Amar has put it, “[j]udges do not like excluding bloody knives”—has led to its transformation from a categorical bar against the admission of evidence tainted by illegality into an all-things-considered balancing test that weighs government interests against private interests and the creation of so many exceptions that it is difficult to describe it as a rule at all.
One of the many exceptions to the exclusionary rule—the attenuation exception— was of central importance in Strieff. This exception applies when the connection between unlawful police conduct and the discovery of the evidence sought to be introduced at trial is sufficiently remote or has been interrupted by some intervening circumstance. As Professor Orin Kerr notes, the Court has long relied on a totality-of-the-circumstances approach in evaluating whether the attenuation exception applies, stressing that the protection of the Fourth Amendment cannot turn on a “talismanic test.” The Utah Supreme Court concluded that the exception did not apply in Strieff because there was no intervening circumstance “so distinct from the threshold Fourth Amendment violation that it can be said that the challenged evidence is not a product of ‘exploitation’ of the illegality.” Thus, it excluded the methamphetamine and drug paraphernalia obtained through Fackrell’s search of Strieff.
The Supreme Court reversed. Writing for the Court, Justice Clarence Thomas relied upon a novel and decidedly talismanic test drawn from three factors considered in the case of Brown v. Illinois. The factors included (1) the temporal proximity between the rights-violation and the discovery of evidence; (2) the presence of an intervening circumstance; and (3) the purposefulness and flagrancy of the official misconduct. While Thomas conceded that the first of these three factors favored Strieff, he reasoned that the second and the third favored the government and thus ultimately concluded that exclusion was unwarranted. Specifically, he determined that the discovery of a warrant was an “intervening circumstance” because it “predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop,” and that, far from being “purposeful or flagrant,” Fackrell’s misconduct was “at most negligent.” He dismissed the possibility that Fackrell’s misconduct was part of “any systemic or recurrent police misconduct,” describing it instead as an “isolated instance.”
As Justice Elena Kagan detailed in a thoughtful and persuasive dissent, the majority’s analysis was insensitive to the underlying facts. “Far from Barney Fife-type mishap,” wrote Kagan, “Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality.” She noted that “Fackrell acknowledged that the stop was designed for investigatory purposes” and that “he had no basis for his action except that Strieff ‘was coming out of the house.’” Further, she observed that Fackrell’s “intervening” discovery of an arrest warrant “was an eminently foreseeable consequence of stopping Strieff”— Fackrell had actually testified that “checking for outstanding warrants during a stop is the ‘normal’ practice of South Salt Lake City police,” which is unsurprising given that (as Kagan pointed out) there are a “staggering number of such warrants on the books” for even the most minor of offenses. (For example, missed payments on traffic tickets.) That is to say, Fackrell’s misconduct was temporally proximate to his discovery of evidence; he deliberately sought to do what the Fourth Amendment forbids him from doing; and he had good reason to believe that the “intervening circumstance” (the discovery of a valid warrant) would take place if he performed the stop. All three factors in the majority’s test favored Strieff rather than the government.
But Justice Sonia Sotomayor’s dissent has received far more attention for its criticism of not only the majority’s analysis but the state of our Fourth Amendment jurisprudence more generally. She excoriated the Court for, in case after case, “condon[ing] officers’ use of [unlawful stops] without adequate cause” and thus “giv[ing] them reason to target pedestrians in an arbitrary manner,” that is, in a manner informed by the mere hunches of officers rather than any specific observational evidence from which one could logically infer criminal activity. By holding that the constitutional reasonableness of traffic stops does not depend on the actual motivations of the individual officers involved, the Court in Whren v. US authorized officers to “stop [people] for whatever reason [they] want—so long as [they] can point to a pretextual justification after the fact.” In Florida v. Bostick, she recounted, the Court held that officers “may… ask for your ‘consent’ to inspect your bag or purse without telling you that you can decline” and that such “consent” would be deemed voluntary—thus obviating the need to secure a warrant. And officers’ control over you does not end with the termination of the stop—far from it, given that the Court has held that minor offenses like "driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened” can serve as grounds for handcuffing you, taking you to jail, fingerprinting you and forcing you to submit to DNA swabs that result in your DNA being entered into a national database. Beyond the trauma of the experience itself, the consequences can be devastating: “Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the ‘civil death’ of discrimination by employers, landlords, and whoever else conducts a background check” and “if if you fail to pay bail or appear for court, a judge will issue a warrant to render you ‘arrestable on sight’ in the future.” Sotomayor concluded: “[T]his case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time … We must not pretend that the countless people who are routinely targeted by police are ‘isolated’ … Until their voices matter too, our justice system will continue to be anything but.”
The final section of Sotomayor’s dissent has been criticized for her reliance upon her “professional experiences” and her references to evidence that was not part of the record. This criticism is not unreasonable— as Professor John McGinnis points out, Sotomayor’s claim that minorities are subjected to a “disproportionate” number of police stops is controversial and was not subjected to the “cut and thrust of the adversary procedures that help guarantee justice.” But the strength of the specific charges that Sotomayor levels against the Court’s Fourth Amendment jurisprudence does not depend upon her professional experiences or her citations of Ta-Nehisi Coates and Michelle Alexander. The rise of qualified immunity and the decline of the exclusionary rule has given us a status quo of rights without remedies that undermines the supremacy of the Constitution and is extraordinarily menacing to the countless Americans who find themselves at the mercy of arbitrary police power. No easy solution to a problem that the Court is in substantial measure responsible for creating presents itself, but acknowledging the problem—as Justice Sotomayor urges us to do—is a necessary first step. Until government officials and private citizens, who are equally bound by “the supreme Law of the Land,” are equally subject to it in practice, our justice system—at least in this vital context— will indeed be anything but.