Justin M. Crozier Feb. 29, 2016

Very recently (February 22, 2016 for future generations) the Supreme Court of the United States heard arguments on a case titled "Utah v. Strieff."  It is an interesting case because it deals with the law surrounding searches, what is allowed in during a search, and when some things should not be allowed in (meaning allowed in to the trial in front of a jury).


I have discussed before the rights we have to not be searched by the police.  The basic rule is that a police officer cannot search you.  To get around that, they need to get a warrant.  However, there are times when an officer can search you without a warrant.  To do that, they need to have reasonable suspicion that something bad is going on.  Back in 1968 there was a case called "Terry v. Ohio" that created this rule where a police officer could stop someone when they have the reasonable suspicion that the person might be armed and dangerous in that moment.  This kind of check has to be brief and can't involve a lot of digging around or reaching into pockets when they feel something that isn't a gun (there are exceptions to that, but for my purposes that is good enough).   If the officer doesn't have reasonable suspicion, they can't perform the search.

There is also a rule called "the exclusionary rule," which probably deserves its own post and discussion.  This rule essentially says that if the police officer didn't do their search right, then they can't use the wrongly found evidence against you.  Again, more complicated than that, but it is the basic rule.  You may have heard about people getting out on a technicality or the "fruit of the poisonous tree" when you were watching Law and Order.  This rule is where that stuff comes from.

Utah v. Strieff

In the Utah v. Strieff the court is having to rule on a case that involves both of these rules (at least to a degree).

An officer was watching a house that he heard had some drug trade going on.  He had been watching it for a while and then another fella walked into the house, then walked out of the house not long after.  The officer decided that he was going to stop the guy and ask him some questions.  Everyone agrees that the officer didn't have "reasonable suspicion" to stop this fella.  What happens at this point is the officer got this guys name and called in to make a warrant check.  Turn out this fella had a warrant.  The officer then searches him and finds a gun on him.  The prosecutor wants to use this evidence against the fella.

The question the court has to tackle is this:  If the original stop was no good, does the evidence found during the valid warrant search get to come in?

A lot of people would think, "well the guy had a warrant, he had a gun on him.  Done and done!  He should go to jail and we shouldn't even worry about it.  Sure sure sure, the original stop was wrong, but they didn't really do anything wrong!  What's the harm in letting this happen?"

Oh, these are excellent questions.  Fundamentally we have a right to be secure in our own person.  We have the right not to be stopped by the police for no reason.  They can't just hold us up and keep looking and investigating us hoping to find out we did something wrong.  We get to live our lives and not have to worry about this kind of behavior.

The harm is as follows: if we allow this to proceed, then we are giving police the right to stop us without having to EVEN justify it.  They stop us, do a warrant search, then (if we don't have one) they let us go.  However, if we do have a warrant, then they get to search us and never have to worry about that dumb old rule in Terry anymore.  This is a stone's throw from being asked to "show our papers" to the police at any point they want.  The harm isn't to the people with the warrant.  The harm is to everyone else who is going to get caught up in this and be forced into a search and they will have no recourse to stop it.

The only way to stop the police from being able to abuse a rule like this is to prevent them from getting access to the evidence they find on the people who have a warrant.  There must be a downside to the police abusing their power, otherwise they won't have a reason to stop.  Personally, the idea of the police having unfettered access to stop us and then performing a search when they get lucky and find someone with a warrant.  That is not how I believe our constitutional rights should be interpreted.

Good luck out there.