I started writing this post before the deaths of Alton Sterling and Philando Castile, black men who were fatally shot last week by police in the name of public safety. But their deaths underscore the subject, which is the high stakes of unlawful stops by police.
Sterling appears to have been pinned to the ground by officers in Baton Rouge when one of them shot him. The circumstances of his death resembled those of Eric Garner, a black man who died two years ago in a police chokehold while being arrested on Staten Island.
Garner died at the hands of police while being arrested for selling loose cigarettes. Sterling was selling CDs outside a food mart. The store’s owner reportedly considered Sterling a friend.
As Emily Badger at Wonkblog notes, both men died while hustling. “In the days after Garner’s death,” writes Badger, “mourners kept juxtaposing the scale of that misdemeanor with what happened next: How could a few loosies justify a response so forceful it snuffed out a grown man’s life?”
The deaths of Garner, Sterling, Castile and too many others, underscores the stakes for all of us, but particularly for people of color, of being stopped by police.
Three years ago, Judge Shira Scheindin of the U.S. District Court in Manhattan invalidated a program of the city’s police department that authorized officers to stop mostly black or Latino residents of the city who happened to be leaving privately owned apartment buildings in the Bronx.
The stops lacked a legal basis, ruled Judge Scheindlin, who observed that the consequences of a conviction, which, after all, can follow from an arrest, have become more severe over the nearly 50 years since the U.S. Supreme Court held that the Fourth Amendment applies to so-called stop-and-frisk procedures. A criminal record can render you unable to obtain a job, rent an apartment, obtain government benefits or, in some states, serve on a jury or vote, she noted.
Justice Sonia Sotomayor reminded us of that recently when she dissented from a ruling by a majority of the court that evidence discovered by police during an illegal stop can nevertheless be admitted in a subsequent criminal trial of the person stopped if the person happened to have an outstanding warrant for his or her arrest.
In short, you can be stopped illegally – in violation of your constitutional rights – and if there happens to be a warrant pending for your arrest, the law will overlook the unlawfulness of the stop.
The case before the court concerned an appeal by Edward Strieff, a white man from Salt Lake City, who six years ago left a house that was under surveillance by police who had received a tip that the occupants were dealing drugs. Detective Douglas Fackrell watched Strieff walk toward a convenience store nearby. In the store’s parking lot, Fackrell stopped Strieff, identified himself and asked Strieff what he was doing at the house.
As part of the arrest, Fackrell asked Strieff for identification, which Strieff produced. Fackrell relayed the information to a police dispatch, who reported that Strieff had an outstanding arrest warrant for a traffic violation. Fackrell then arrested Strieff for that violation. When the officer searched Strieff incident to the arrest – a basic precaution when arresting someone – he discovered a baggie of methamphetamine and drug paraphernalia.
The state charged Strieff with unlawful possession. Strieff sought to suppress the evidence, which he asserted was inadmissible because it was derived from an unlawful stop – that Fackrell had no legal basis for detaining Strieff in the first place. At a hearing on whether to suppress the evidence (because of the illegal stop), the prosecution conceded that the stop was unlawful, but argued that the evidence should be admitted because the existence of a valid arrest warrant lessened the connection between the unlawful stop and the discovery of the drugs.
A trial judge agreed with the state, ruling that the short time between the illegal stop and the search weighed in favor of suppressing the evidence but that the existence of a valid warrant constituted an extraordinary intervening circumstance. The judge also noted that Fackrell, who had been conducting a legitimate investigation of a suspected drug house, had not engaged in flagrant misconduct.
The Utah Supreme Court reversed, holding that the evidence was inadmissible because only a voluntary act by Fackrell – such as his confessing or consenting to the search – could have severed the connection between an illegal search and the discovery of evidence.
A majority of Justice Sotomayor’s colleagues disagreed, holding that the evidence discovered on Strieff was admissible because the unlawful stop was sufficiently weakened by the preexisting warrant. Writing for the majority, Justice Clarence Thomas explained:
“The outstanding arrest warrant for Strieff’s arrest is a critical intervening circumstance that is wholly independent of the illegal stop. The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff. And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”
Reread that last sentence. There is no evidence that the officer’s illegal action was flagrantly unlawful.
Huh.
According to Justice Sotomayor, the decision raises a principle at the core of the Fourth Amendment: that two wrongs don’t make a right. The alternative – that the warrant somehow rights the wrong – she wrote, is “a remarkable proposition.”
What’s more, she noted, the reasoning by the majority threatens to give police an incentive to stop suspects illegally because outstanding warrants are common.
Citing the Justice Department’s investigation of the town of Ferguson, Missouri following the fatal shooting of Michael Brown, an 18-year-old black man, by a white police office who had stopped him (and who may or may not have had probable cause to stop Brown), Justice Sotomayor noted that Ferguson, with a population of 21,000, had 16,000 people with outstanding warrants against them. In one year in New Orleans, she observed, officers made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neighboring parishes for such infractions as unpaid parking tickets. She cited data from Utah that shows the state lists more than 180,000 misdemeanor warrants in its database.
Unlawful stops “have severe consequences much greater than the inconvenience suggested by the name,” she wrote. “Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more,” she added. And, she explained:
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, of course, 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.
Think about how fortunate you are if you’ve never been arrested. Even if you’ve never so much as jaywalked, you might have stood in the wrong place at the wrong time, or been mistaken for someone else and arrested by accident. And that alone might change the trajectory of where you work or where (or whether) you live.
As Justice Sotomayor, who grew up in public housing in the Bronx, noted, the appeal by Strieff involved a stop in which the officer, by arresting Strieff without justification, set in motion a series of events that led to Strieff’s conviction.
“The white defendant in this case shows that anyone’s dignity can be violated in this manner,” she wrote. “But it is no secret that people of color are disproportionate victims of this type of scrutiny.”
She continued, “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.”
The majority’s ruling, wrote Justice Sotomayor:
“… legitimizes the conduct that produces this double consciousness” and “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.”
To Justice Sotomayor, the people who are targeted routinely by police are “canaries in the coal mine whose deaths, civil, and literal, warn us that no one one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”