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Attenuation

Jun 21
Love4
Utah v. Strieff Illegal Police Conduct

US Supreme Court Allows Evidence From Illegal Police Stop in a Shocking Decision

By Search & Seizure

In a 5-3 Split, Utah v. Strieff Causes Strife for the Supreme Court: What Happens When an Illegal Stop Leads to the Discovery of an Outstanding Warrant?

Utah v. Strieff Illegal Police ConductUtah v. Strieff (United States Supreme Court – 2016)

The Supreme Court has had a busy term already! Handed down just yesterday, Utah v. Strieff divided the Supreme Court over the question of what happens when an illegal stop leads to the discovery of an outstanding warrant? And when that warrant is executed, what happens when drug paraphernalia is found incident to arrest? Should evidence obtained at a search incident to arrest be suppressed when the stop was unlawful from the start?

Surveillance of a Suspected Drug House Leads to an Arrest for a Traffic Violation

In Strieff, law enforcement conducted surveillance of a Salt Lake City, Utah, residence, after an anonymous tipster called a drug hotline to report to police that drugs were being sold in the home. During the surveillance, police observed a large number of people visiting the home for mere minutes at a time and leaving, increasing law enforcement’s suspicion that the residents were dealing drugs. Shortly after Edward Strieff visited the home, law enforcement stopped and detained Strieff, asking him the reason for visiting the home. Next, police ran Strieff’s identification information through their electronic records, discovering an outstanding arrest warrant on Strieff for a traffic violation. Strieff was arrested and searched. During the search, police found a baggie of meth and other drug paraphernalia in Strieff’s pockets. Strieff was charged with unlawful possession of methamphetamine and drug paraphernalia.

Strieff Moves to Suppress the Evidence as the Fruits of an Illegal Police Stop.

At trial, Strieff moved to suppress the evidence as a result of an unlawful investigatory stop. Strieff argued that because law enforcement’s stop was illegal from the beginning, then any evidence found on him as a result of the stop was “tainted.” The State argued that the evidence was in fact admissible because it was found as a result from a search incident to a lawful arrest with a warrant, and that the warrant itself attenuated the connection between the unlawful stop and the discovery of the drugs and drug paraphernalia. Agreeing with the State, and finding the presence of the arrest warrant to be an “extraordinary intervening circumstance” the trial court denied Strieff’s motion to suppress. United States v. Simpson, 439 F.3d 490, 496 (CA8 2006). Strieff pleaded guilty to a lesser charge, but preserved his right to appeal.

Utah Supreme Court Holds that Illegal Police Conduct Was Not Attenuated.

On appeal, Strieff argued that the evidence should have been suppressed at trial. However, the Utah Court of Appeals affirmed the trial court’s ruling. 2012 UT App. 245, 286 P. 3d 317. On appeal to the Utah Supreme Court, Strieff argued that the evidence should have been suppressed at trial and that the court of appeals was incorrect in their verdict. The Utah Supreme Court agreed with Strieff, and reversed the lower courts’ rulings, ordering the evidence to be suppressed. 2015 UT 2, 357 P. 3d 532. In declining to apply the attenuation doctrine, the Utah Supreme court held, “the evidence is inadmissible because only a voluntary act of a defendant’s free will sufficiently breaks the connections between an illegal search and the discovery of evidence.” Id. at 536.

The State of Utah appealed to the United States Supreme Court. Strieff contends that the facts of his case show that he was stopped illegally for the purpose of obtaining his identifying information, and that because of flagrant police misconduct, he was detained and searched unlawfully.

US Supreme Court Must Determine Whether Illegal Police Conduct Must Result in Exclusion of the Tainted Evidence.

When a police officer lawfully stops a person and asks for identification, then, discovers that there is a traffic warrant for this person’s arrest, and in the process of arresting and searching him discovers drugs and drug paraphernalia, the evidence found in the search of a person can be used against him.

However, what if the initial stop was not lawful. Doctrinally, does the “attenuation doctrine”—an exception to the exclusionary rule of the Fourth Amendment—apply when law enforcement makes an unconstitutional investigatory stop, discovering during that stop that the suspect is subject to a valid arrest warrant, and then, arrests the suspect, seizing incriminating evidence during a search incident to arrest?

The Law of the Land: The Fourth Amendment

The Fourth Amendment to the United States Constitution provides, “ the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.” U.S. CONST. amend. IV. To enforce the Fourth Amendment’s prohibition against unreasonable searches and seizures, “[the Supreme] Court has required…courts to exclude evidence obtained by unconstitutional police conduct” via the exclusionary rule. Utah v. Strieff, 579 U.S. ___(2016).

The Exclusionary Rule to the Fourth Amendment

The Exclusionary Rule to the Fourth Amendment is a legal principal, put forth by the Supreme Court in precedent case law, protecting defendants in criminal cases where evidence is collected in violation of a person’s constitutional rights, by deeming the evidence inadmissible for criminal prosecution. Mapp v. Ohio, 367 U.S. 643, 655 (1961). The Exclusionary Rule encompasses both the “primary evidence obtained as a direct result of an illegal search or seizure [and] evidence later discovered and found to be derivative of an illegality.” Segura v. United States, 468 U.S. 796, 804 (1984). However, courts will only apply the exclusionary rule, “where the deterrence benefits outweigh its substantial social costs.” Hudson v. Michigan, 547 U.S. 586, 591 (2006).

The Exception to the Exclusionary Rule: Attenuation Doctrine (and Brown Factors)

Over the years, the Supreme Court has recognized several exceptions to the Exclusionary Rule, one of which is called the “Attenuation Doctrine.” The Attenuation Doctrine provides for admissibility when the connection between unconstitutional police conduct and evidence is sufficiently remote or has been interrupted by some intervening circumstances. Id. at 593. The doctrine “evaluates the causal link between the government’s unlawful act and the discovery of evidence.” Strieff, 579 U.S. ___ (2016).

The factors, articulated in Brown v. Illinois, 422 U.S. 590 (1975) (the “Brown factors”), are used by courts in legal analyses to determine whether the Attenuation Doctrine is applicable to the facts of a case. The three factors are temporal proximity, intervening circumstances, and flagrant police misconduct.

  1. Temporal proximity—For example, how much time did it take for police to stop the suspect and to arrest him, and under what circumstances?
  2. Intervening circumstances—For example, did the suspect make a confession, or volunteer some other information to law enforcement to indicate that he has committed a crime?
  3. Flagrant police misconduct—For example, did police act in an unethical manner to discover evidence, or, is there a pattern of misconduct for that officer or police department as a whole?

The Supreme Court Holds That The Valid Arrest Warrant Attenuated the Taint of the Illegal Stop.

In a 5-3 split, the Supreme Court reverses the Utah Supreme Court’s ruling, holding that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest. Essentially, the arrest warrant was, in and of itself, the attenuation or the reason that the evidence seized is admissible. “The evidence [law enforcement] seized incident to Strieff’s arrest is admissible based on an application of attenuation factors from Brown v. Illinois, 422 U.S. 590.”

First, the “temporal proximity” factor “favors suppressing the evidence,” the Supreme Court states, as the stop was initially unlawful and because law enforcement discovered the drug paraphernalia on Strieff mere minutes after he an illegal stop. However, the other two factors strongly favor the State.

Second, the “intervening circumstances” factor is met under the facts of the case. “The existence of a valid arrest warrant, predating the investigation and entirely unconnected with the stop, favors…attenuation between the unlawful conduct and the discovery of evidence.” Further, the warrant itself authorized law enforcement to arrest Strieff—once the arrest was authorized by a magistrate’s signature on a warrant, a search incident to an arrest is “undisputedly lawful.”

Third, the “flagrant police misconduct” factor strongly “favors the state” as law enforcement was “at most negligent…but [these] errors in judgment hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.” In this case, there was no indication that the stop was part of any systemic police misconduct. Police misconduct and flagrancy requires more than “mere absence of proper cause.”

Additionally, the Supreme Court says that Strieff’s arguments are not persuasive. Law enforcement did not stop Strieff randomly. Strieff had visited a suspicious house that was under surveillance. Law enforcement’s purpose in surveilling the residence was to “gather information about activity inside a house whose occupants were legitimately suspected of dealing drugs.” Further, it is “unlikely that the prevalence of outstanding warrants will create dragnet searches,” says the Supreme Court.

Three Supreme Court Justices Dissent and Would Hold That the Illegal Stop Requires Exclusion of the Seized Evidence.

There were three dissenters who put forth two written dissents to the holding in this case. In the first dissent, Justices Sotomayor and Ginsburg (in part) state that, “the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights.” Further the Justices add, “If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.” “Two wrongs don’t make a right” they implore, “as it is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian.” The holding in this case, they say, undermines the heart of the constitutional protections, “the Fourth Amendment should prohibit, not permit.”

Additionally, Justices Kagan and Ginsburg dissented together. The Justices argue that the majority misapplied the Brown factors altogether, and that an outstanding warrant in and of itself does not an intervening circumstance make. Further, they argue that the outcome of this case invites law enforcement to stop citizens, even without reasonable suspicion. “If the target[ed] [citizen] is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in criminal prosecution,” the Justices argue. Thus, law enforcement’s incentive to violate the Fourth Amendment increases, which is in opposition to the purpose of the Exclusionary Rule altogether—to remove potential temptation from police to stop random individuals without reasonable suspicion.

Commentary

This is a very troubling decision. While we never hope that our police officers would engage in illegal conduct to stop folks that have not committed a violation, it is never good to allow a 4th Amendment violation to be trumped by the later discovery of a traffic warrant. If we subscribe to an “ends justify the means” mentality, all of our constitutional rights are in serious jeopardy. It will be interesting to see how this decision plays out in real life, but I predict that it will not be good in the short term.

Mar 06
Love1

Purging Unconstitutional Taint from Unlawful Search

By Unlawful Search

Although the Fourth Amendment acts as a safeguard against unlawful search and seizures, the State can still use evidence it finds against a defendant in a consensual search of their property if the search is sufficiently detached from an illegal search that purges any unconstitutional taint. Accordingly, such a search is valid if the search was voluntary and an independent act of freewill.  In order to determine whether a search was an independent act of freewill, the Court analyzes several factors, none of which are controlling by themselves:

  1. the temporal proximity of the illegal conduct and the consent,
  2. the presence of intervening circumstances, and
  3. the purpose and flagrancy of the initial misconduct.

In US v. Montgomery, the Defendant was stopped by a police officer and frisked during a traffic stop in front of the Defendant’s house. As the officer frisked the Defendant, the Defendant pushed the officer’s hands away from his pockets after the officer felt a bulge. The Defendant revealed that the bulge was cocaine, prompting his arrest and Mirandizing. The Defendant, eventually, consented to a search of his house. During the search, the Defendant was allowed into the house to obtain medicine and made several requests to officers on scene for his cell phone to erase some “naked pictures” that he did not want his father to find. The Defendant consented to one of the officers using his phone to delete the pictures, but the officer found what appeared to be child pornography. The Defendant was later indicted for possession of child pornography.

At trial, the Defendant claimed that the frisk and seizure of cocaine that led to his arrest was unlawful, which tainted his consent for the officer the see his cell phone. Nevertheless, the Court held that even if the frisk and seizure were illegal, the Defendant’s several voluntary and independent acts of freewill relieved the search of the Defendant’s phone of any unconstitutional taint, specifically, the Defendant asking several times to see his cell phone so that he could delete the naked images, and the Defendant consenting to a search of his phone after being Mirandized. Nothing was presented at trial that showed the police officers even wanted to search his cell phone. In the words of the Court, “[The Defendant] broached the phone search himself.” Moreover, the Court also cited several intervening events and factors establishing that the Defendant’s “consent was sufficiently detached from the arrest to purge any taint” such as the officers reading the Defendant his Miranda rights, the Defendant’s criminal record, and the Defendant going into his house to retrieve his medicine.

Yet another reason why we advise NEVER GIVE CONSENT TO SEARCH, period.

Jan 22
Love0

Attenuating of the Taint of Unlawful Police Conduct in Drug Crimes

By Drug Crimes

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances; and
3. The purpose and flagrancy of the official misconduct (in making the arrest).

In May of 2012, in State v Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

The opinion in this case seems a logically disconnected from the ultimate outcome. Apparently, some of the judges agree.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

If you were the subject on an unlawful arrest on a drug crimes case, contact the Fort Worth, Texas drug crimes defense lawyers at Barnett Howard & Williams PLLC today.  (817) 993-9249.