Justice Kagan is right in her dissent that the majority’s approach practically invites police officers to make illegal stops. If you’re a police officer and you want to search a suspect to help investigate a crime, you just need to stop the suspect and ask for ID to see if he has an outstanding warrant. If there’s no warrant out for his arrest, you can let him go and he’s extremely unlikely to sue. If there is a warrant, you can arrest him, search him incident to arrest, and question him later; the courts will allow that evidence because you were acting in good faith by trying to investigate the crime. The police academies won’t teach officers to violate the law, of course. At the margins, though, officers will be encouraged to treat almost anything as reasonable suspicion to justify a stop. If in doubt, make the stop.Read in particular Part IV of Justice Sonia Sotomayor's dissent, beginning at the bottom of p. 22 of the pdf. She lays out broader concerns about overarching police power that the narrow case decision didn't reach but which merit serious attention. That remarkable section of her opinion concluded: "We must not pretend that the 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. 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."
Thursday, June 23, 2016
Fourth Amendment body blows
The Fourth Amendment has suffered some major recent body blows. We've already discussed how the Supreme Court of Texas okayed cops performing illegal searches in pursuit of asset forfeiture seizures. Now the US Supreme Court in a case styled Utah v. Strieff has essentially said the Fourth Amendment does not protect people who have outstanding warrants for minor traffic offenses. At SCOTUSBlog, Orin Kerr wrote that,