Tuesday, November 15, 2016
Julian A. Cook (University of Georgia Law School) has posted The Wrong Decision at the Wrong Time: Utah v. Strieff in the Era of Aggressive Policing (Southern Methodist University Law Review, Forthcoming) on SSRN. Here is the abstract:
On June 20, 2016, the United States Supreme Court held in Utah v. Strieff that evidence discovered incident to an unconstitutional arrest of an individual should not be suppressed given that the subsequent discovery of an outstanding warrant attenuated the taint from the unlawful detention. Approximately two weeks later the issue of aggressive policing was again thrust into the national spotlight when two African-American individuals — Alton Sterling and Philando Castile — were killed by policemen in Baton Rouge, Louisiana and Falcon Heights, Minnesota, respectively, under questionable circumstances. Though connected by proximity in time, this article will demonstrate that these events are also — and much more importantly — connected by decades of Supreme Court jurisprudence. It will describe how since before the close of the Warren Court in 1969 the Supreme Court began a process of expanding police powers, restricting individual Fourth Amendment safeguards, and encouraging officers to engage in unconstitutional investigative practices. The article will proceed with a particularized focus upon the Supreme Court’s exclusionary rule and standing jurisprudence, and its discussion of Strieff will take place in this broader context. It will explain how the decline of the exclusionary rule and the attendant standing doctrine over the course of several decades has helped foster a culture of aggressive police practices. It will illuminate how the Court’s steady expansion of police investigative authority, coupled with its increasing willingness to forgive constitutional missteps by the government, have encouraged the police to engage in unconstitutional practices and to test the outer limits of acceptable police behaviors.
When viewed in this context, Strieff is the latest in a series of Supreme Court cases that have implicitly encouraged aggressive police conduct. Strieff is a most unfortunate and perilous expansion of the attenuated circumstances doctrine. Though accurately cast as a case that encourages unconstitutional detentions by the police, a more apt description of Streiff is that it promotes physical contact with individuals by the police without just cause. In contrast to the Court’s good faith exception and attenuated circumstances cases that preceded it, Strieff breaks disturbing new ground; it creates an incentive for officers to get within close proximity of individuals, to detain them unconstitutionally, and to risk unnecessary physical confrontation. At a time when officer aggression has ignited national controversy and irritation in communities (particularly minority) from coast to coast, Strieff delivers the wrong message at the wrong time.