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Supreme Court: Police Can Now Search You Without Probable Cause

In a blistering dissent, Justice Sotomayor called out her colleagues for living in a bubble

Photo by Bill O'Leary/The Washington Post/Getty Images

In December 2006, Salt Lake City cop Douglas Fackrell sat in his squad car watching a house he had reason to believe was a drug den. He’d received an anonymous tip about “narcotics activity” and, over the course of a week, spent about three hours surveilling the scene. Nothing illegal occurred, but people were coming and going at odd intervals. He decided to stop the next person to walk out, seeking more information and, perhaps, an easy arrest.

That man was Edward Strieff, and, as the State of Utah later conceded, Fackrell really had no reasonable grounds to search him. The stop was illegal. Even though Fackrell found a bag containing methamphetamines and drug paraphernalia, the Fourth Amendment should have excluded that evidence from court. Yet Strieff had an old warrant for a traffic violation, which Fackrell used to cover his tracks. The battle became Utah v. Strieff, and it went all the way to the top.

In a new decision that broke 5-3 along gender lines, the Supreme Court ruled against Strieff on Monday, concluding that an active warrant, however unrelated, is cause enough for a search. Justice Clarence Thomas handled the majority decision, writing that searches do not violate the Fourth Amendment if there is any warrant connected to the person being stopped.

Robert Bloom, a professor of law at Boston College Law School, said the decision was part of a trend. The exclusionary rule, which has historically been the remedy for addressing constitutional violations by police officers, has been eroding. “I’m not really surprised,” he told me. “Since the Warren court, since the 1970s, the Supreme Court has cut back on the exclusionary rule. It’s a continuum. In this case, the Court said, because of the lack of flagrancy of the violation, because there was a warrant, they’re going to allow it.”

The ruling drew a blistering dissent from Justice Sonia Sotomayor, who wrote that police can now use the discovery of any warrant (one resulting from an unpaid parking ticket, for example) to search anyone at anytime, a clear violation of the Fourth Amendment. “Do not be soothed by the opinion’s technical language,” she wrote. “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.”

Sotomayor went on to outline how warrants are almost universally issued for minor offenses. Using language that reflected the influence of the Black Lives Matter movement, the Justice specifically cited influential black intellectuals W. E. B. Du Bois, James Baldwin, and Ta-Nehisi Coates alongside urban environments like Ferguson, Mo., where 16,000 of 21,000 residents would be subject to arrest warrants as targets. There are 7.8 million outstanding warrants in the United States, she wrote, going on to add:

“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. For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. 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.”

In her closing lines, Sotomayor stated that “we must not pretend that countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”

According to Ric Simmons, the Chief Justice Thomas J. Moyer Professor for the Administration of Justice and Rule of Law at the Moritz College of Law at Ohio State University, the case is a big deal. “I certainly agree (I think every expert agrees) with Justice Sotomayor that this ruling forgives a certain category of Fourth Amendment violations,” he told me. “It widens one category of the exclusionary rule (the "attenuation doctrine") so that the courts can still use certain information even though it was obtained after illegal police conduct.”

But for Simmons, Sotomayor’s dissenting opinion that the ruling will result in more illegal stops goes too far. “Her logic is that police will now be more likely to conduct illegal stops just to see if they can find an outstanding warrant, since now they know that the warrant will allow them to search and any fruits of the search can be used as evidence,” he said. “I think that some police forces may engage in this behavior already, and some will continue to do so in the future, but this ruling itself will not encourage the practice.”

Many experts feel that the exclusionary rule has been so degraded that, eventually, it will need to be replaced with another mechanism to deter illegal police activity. But even with the appointment of a new judge (as Obama has tried to do with the centrist Merrick Garland), Monday’s ruling shows the Court will continue to have a majority continuing to chip away at the rule and, by extension, the Fourth Amendment.

The solution? Wait for conservative justices to retire and, in the meantime, do a search and make sure you don’t have any outstanding warrants. That unpaid ticket can truly haunt you, now more than ever.

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