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Supreme Court Weakens Protections Against Unconstitutional Police Stops

The 5-3 decision prompts a sharp rebuke from Justice Sonia Sotomayor, who writes that those targeted by police "warn us that no one can breathe in this atmosphere."

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WASHINGTON — The Supreme Court on Monday made it easier for police to get evidence admitted in a prosecution even if that evidence was obtained after an unconstitutional stop.

In a 5-3 decision, Justice Clarence Thomas wrote for the court that the drugs and paraphernalia found by a Utah police officer on Edward Strieff after an unconstitutional stop are admissible because police found that there was an arrest warrant outstanding for Strieff and that warrant "attenuated the connection between the unlawful stop and the evidence seized."

The decision was a reversal of the Utah Supreme Court's decision tossing out the evidence under the Fourth Amendment's so-called "exclusionary rule," which holds that evidence obtained illegally cannot be admitted at trial.

This case, Thomas wrote, was an example of the "attenuation doctrine" exception to that rule — in other words, where something happens after the illegal stop that renders the evidence admissible. Here, Thomas wrote, it was the fact that police found that there was an outstanding warrant for Strieff's arrest.

"The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Douglas Fackrell to arrest Strieff," Thomas wrote. "And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct."

Thomas was joined in the majority by Chief Justice John Roberts and Justices Samuel Alito and Anthony Kennedy — but also with Justice Stephen Breyer. With an eight-justice court, at least one of the four more liberal members needs to join with the conservatives in order to muster a majority opinion in a case divided along those ideological lines. This is the first 5-3 decision since Justice Antonin Scalia's death in which one of the four more liberal justices did so.

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan dissented from the opinion, with Sotomayor and Kagan both penning dissents.

After detailing the reasoning of the Utah Supreme Court for tossing out the evidence, Sotomayor, joined by Ginsburg, wrote, "To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence."

Calling this a "remarkable proposition," she continued, characterizing the court's decision as such: "The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch."

Kagan, also joined by Ginsburg, took aim at the majority's characterization of the police conduct in the case.

"[F]ar from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality," she wrote, concluding that the court's decision "practically invites" police to stop people without reasonable suspicion and then check to see if they have an outstanding warrant as a means of making any evidence found admissible.

Sotomayor also, however, wrote for several pages only on behalf of herself, detailing how she saw the decision as part of a larger policing problem.

Writing that "unlawful 'stops' have severe consequences much greater than the inconvenience sug­gested by the name," Sotomayor wrote, "This Court has given officers an array of instruments to probe and examine you. When we condone officers' use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens."

Noting that the case involved a suspicionless stop, Sotomayor wrote, "it is no secret that people of color are disproportionate victims of this type of scrutiny," citing Michelle Alexander's 2010 book, The New Jim Crow. Detailing "the talk" that "black and brown parents have given their children," the result of "fear of how an officer with a gun will react to them," Sotomayor cites a century of famed black books: W.E.B. Du Bois' The Souls of Black Folk, James Baldwin's The Fire Next Time, and Ta-Nehisi Coates' Between the World and Me.

The court, she wrote, "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."

Sotomayor, a native of New York City, concluded with what appeared to be a reference to the "I Can't Breathe" mantra from Black Lives Matter and related protests in the wake of Eric Garner's death at the hands of police in New York City:

Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.

Contact Chris Geidner at chris.geidner@buzzfeed.com.

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