The BlueSheepDog Crew are committed to bringing our readers up-to-date posts on the tactics, training, firearms, and equipment used by today’s law enforcement professionals. Part of that commitment has been our posting key judicial rulings from the U.S. Supreme Court and the Federal Appellate Courts. Our hope is the information will be reviewed by officers for insight and guidance in the finer legalities of enforcement actions.
EDITOR’S NOTE: BlueSheepDog Crew are not attorneys. The information provided here is for educational purposes only and should not be solely relied upon when making enforcement decisions or actions. The BSD Crew recommend officers review the Court rulings and consult with their local prosecutors and/or department legal advisors before taking action.
Utah v. Strieff
This U.S. Supreme Court decision has important implications when an officer acts upon sound information, but may overstep the legal requirements for an investigatory stop. The question before the Court was to clarify when evidence seized during an unconstitutional stop may be still be admissible. This legal concept is known as the:
Attenuation Doctrine – “The Fruit of the Poisonous Tree has Been Sanitized”.
Every officer should be very familiar with the Mapp v. Ohio decision, that firmly established the “Fruit of the Poisonous Tree” doctrine of the Exclusionary Rule. In essence, the Supreme Court rightly established a bright line rule prohibiting evidence obtained during an unlawful search or seizure from being used in Court. This protection is a clear line derivative from the 4th Amendment in the Bill of Rights.
However, there are some exceptions to Exclusionary Rule, including the “Attenuation Doctrine”. This exception recognizes when the taint on evidence from improper law enforcement conduct, can be “attenuated” by some lawful intervening fact. Simply stated, “attenuation” means by some intervening fact, the fruit has been washed off and can be used against the suspect in a criminal trial.
The specific question the U.S. Supreme Court considered in Utah v. Strieff, was whether learning of an arrest warrant during an unconstitutional investigatory stop was sufficient to attenuate the stop or “clean the fruit” of the evidence found.
Background of the Stop
The case began with an anonymous tip in December 2006, when a caller notified the South Salt Lake City Police drug-tip line of “narcotics activity” at a particular residence. Based on the tip, Detective Fackrell conducted surveillance of the residence over the course of about a week. During that time he observed visitors leaving after visiting only a few minutes after arriving at the house. The number of visits were sufficiently frequent to raise Detective Fackrell’s suspicion that the occupants were dealing illegal drugs.
One of the visitors was respondent Strieff. During surveillance, Detective Fackrell observed Strieff exit the house and walk toward a nearby convenience store. As a part of his investigation, Detective Fackrell detained Strieff in the store’s parking lot. He identified himself, and asked Strieff what he had been doing at the residence.
Sometime during the conversation, Detective Fackrell requested Strieff to produce identification. Strieff complied by producing his Utah identification card.
EDITOR’S NOTE: At this point Detective Fackrell has done what many police officers have done. They’ve investigated “suspicious” behavior, and requested identification from the subjects involved. The legal question during encounters of this nature will hinge on whether there was reasonable suspicion for the stop or just a fishing expedition.
Remember, talking to someone is lawful, but must be voluntary. The person must feel free to leave at any time and not talk to you. Requesting identification changes the nature of the interaction to a detention. The Courts have consistently ruled that a citizen does not feel free to leave when an officer still holds their identification. This concept will likely apply even if the identification is given verbally.
Detective Fackrell relayed Strieff’s identifiers to Dispatch, and learned Strieff had an outstanding arrest warrant for a traffic violation. Detective Fackrell arrested Strieff on the warrant, and searched his person incident to arrest. During the search, Fackrell discovered a baggie of methamphetamine and drug paraphernalia.
EDITOR’S NOTE: Searches incident to arrest are still lawful, especially searching the person of the arrested. Arizona v. Gant separated the motor vehicle exception from searches incident to arrest unless the officer had probable cause to believe evidence of the crime the suspect was arrested for may be located in the vehicle.
Charges of Possession of Controlled Substance
The State of Utah charged Strieff with unlawful possession of methamphetamine and drug paraphernalia. Strieff sought to suppress the evidence, arguing the drugs and paraphernalia should be inadmissible because they were found during an unlawful investigatory stop.
At the suppression hearing, the prosecutor conceded that Officer Fackrell lacked reasonable suspicion for the stop. However, the prosecutor argued the evidence should not be suppressed because the existence of a valid arrest warrant “attenuated” the connection between the unlawful stop and the discovery of the contraband.
The Utah trial court agreed with the State and admitted the evidence. The court reasoned the short time between the illegal stop and the search weighed in favor of suppressing the evidence, because it was immediately associated to the improper stop. However, two countervailing considerations made it admissible.
- The court considered the presence of a valid arrest warrant to be an “extraordinary intervening circumstance.”
- The court stressed the absence of flagrant misconduct by Detective Fackrell, due to conducting a legitimate investigation of a suspected drug house.
Strieff conditionally pleaded guilty to reduced charges of attempted possession of a controlled substance and possession of drug paraphernalia, but reserved his right to appeal the trial court’s denial of the suppression motion. During an appeal to the Utah Court of Appeals, the trial court decision was affirmed.
The Utah Supreme Court, however, reversed the lower courts. The Utah Supreme Court ruled the drug evidence was inadmissible because only “a voluntary act of a defendant’s free will (as in a confession or consent to search)” would sufficiently break the connection between an illegal search and the discovery of evidence. In other words, the only way the drug evidence would have been admissible is if Strieff had consented to the search during the arrest. Fackrell’s discovery of a valid arrest warrant did not meet that standard, the court ordered the evidence suppressed.
The Prosecution appealed to the United States Supreme Court. The Court agreed to decide whether the discovery of a valid arrest warrant during an invalid stop was enough to save the evidence discovered as the result of the search incident to arrest.
The Supreme Court noted in its review the decision on the application of the Exclusionary Rule requires courts to weigh the degree to which excluding the evidence will deter future law enforcement misconduct, versus the social costs of allowing defendants to avoid the consequences of the evidence.
The Court noted that they have recognized several exceptions to the Exclusionary Rule including:
- Independent Source Doctrine: allows evidence to be admitted if it was obtained in an unlawful search but officers had a separate and independent source to properly seize the evidence at the time.
- Inevitable Discovery: allows evidence unlawfully seized to be admitted at trial if the officers would have discovered the evidence by some proper means even without the unconstitutional conduct.
- Attenuation Doctrine: “evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not have been served by suppression of the evidence obtained.”
In reviewing whether the Attenuation Doctrine applied to the stop in this case, the Court outlined the 3-factor test courts must consider in “attenuation” cases.
- Temporal Proximity (How Much Time?) between the officer’s unconstitutional act and the discovery of the evidence to determine how closely the discovery of the evidence followed the unconstitutional search.
- The presence of intervening circumstances.
- The purpose and flagrancy of the officer’s misconduct.
The Court noted the search revealing the evidence followed on the heels of the improper stop. So in analyzing “temporal proximity,” it would go in favor of suppressing the evidence since “substantial time” had not passed.
In reviewing any “intervening circumstances,” the Court noted the valid arrest warrant weighed strongly in favor of allowing the evidence. The warrant was in effect before Detective Fackrell ever made the stop, and was entirely independent of the stop of Strieff. Adding to this, the Court quoted itself from United States v. Leon: “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.”
The Court continued its reasoning: “Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety.”
The Court then considered the “flagrancy of the official misconduct” went in favor of Officer Fackrell. The Court found Detective Fackrell was, at most, negligent making two “good faith” mistakes.
- Fackrell had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude Strieff was a short-term visitor who may have been completing a drug transaction.
- Lacking confirmation Strieff was a short-term visitor meant Detective Fackrell should have asked Strieff whether he would speak with him, instead of demanding Strieff do so. Fackrell’s stated purpose was to “find out what was going on [in] the house.” Nothing prevented approaching Strieff simply to ask.
See Florida v. Bostick, (1991) “[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions”.
Though Detective Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful. The officer’s decision to run the warrant check was a “negligibly burdensome precaution” for officer safety. Rodriguez v. United States, (2015). Fackrell’s actual search of Strieff was a lawful search incident to arrest.
Moreover, the Court found there was no indication Fackrell’s unlawful stop was part of any systemic or recurrent police misconduct. To the contrary, all the evidence suggested the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house. Officer Fackrell saw Strieff leave a suspected drug house. And his suspicion about the house was based on an anonymous tip and his personal observations.
After reviewing the factors, the U.S. Supreme Court held the evidence was admissible indicating that the pre-existing arrest warrant was a critical intervening circumstance that was wholly independent of the illegal stop.
The most compelling factor in this decision was the presence of the arrest warrant, which then led to a valid search. The defense had attacked the earliest point in the contact – the stop itself. The U.S. Supreme Court recognized the initial detention stop was invalid, but in considering the totality of the circumstances determined arresting and searching Strieff on a valid arrest warrant was not only legal, but compelled by the officer’s duty to comply.
Also important to note was this stop was not random, or simply based upon a hunch. The Court acknowledged there was a valid reason Detective Fackrell stopped Strieff, while noting the detention was not based upon enough reasonable suspicion to satisfy a Terry stop.
NOTE: Flagrant Misconduct that leads to the discovery of the arrest warrant will likely not turn out the same.