Utah v. Strieff

The Fourth Amendment protects you from unreasonable search and seizure by the government. Unless the government wants to unreasonably search and/or seize. In that case, the Supreme Court says "go for it babes!"

A podcast where we dissect and analyze the Supreme Court cases that have banned our civil rights, like an Elon Musk parody being banned from Twitter

0:00:00.0 Speaker 1: We'll hear argument next in Case 14-13-73, Utah v. Strieff.


0:00:10.1 Leon: Hey everyone, this is Leon from Fiasco and Prologue Projects. On this week's episode of 5-4, Peter, Rhiannon, and Michael are talking about Utah v. Strieff. In this case, the defendant was stopped by police, who then found a warrant out for his arrest. The police searched him, found drugs, and arrested him. What's distressing about the case is that the initial stop of the defendant was unconstitutional, according to both the lower court and the Supreme Court.

0:00:37.3 S?: We do not hold that Officer Fackrell's initial stop of Strieff was constitutional, nor do we preclude Strieff from seeking a different kind of legal remedy for the violation of his Fourth Amendment rights.

0:00:53.3 Leon: But the Supreme Court still ruled in favor of the police saying that a "intervening event," the discovery of the warrant justified the stop. The holding adds another weapon that the police can use in their arsenal against people's Fourth Amendment rights. This is 5-4, a podcast about how much the Supreme Court sucks.


0:01:16.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have banned our civil rights like an Elon Musk parody being banned from Twitter. [chuckle] I'm Peter, I'm here with Michael.

0:01:28.0 Michael: Hey everybody.

0:01:29.5 Peter: And Rhiannon.

0:01:30.1 Rhiannon: Hello.

0:01:30.4 Peter: That one's probably gonna be out of date by the time that it airs. Right now, we're in the midst of a wave of Elon Musk parodies being banned. This time next week, I imagine Twitter will be but a crater in the ground.


0:01:41.0 Rhiannon: Yeah, we're all about to get banned. Yeah.


0:01:45.0 Michael: Did you see that? The Onion posted a few things. One was just like, please like me in a picture of him, and one was like, bullied man plans on shooting up office or something like that.


0:02:00.9 Peter: Yeah.

0:02:01.0 Michael: Plans office shooting. And then an hour later, Tesla unfollowed the Onion [laughter] on Twitter.

0:02:03.5 Peter: Right. Right.

0:02:05.3 Rhiannon: Amazing.

0:02:05.4 Michael: He's just having the worst time. He's having the absolute worst time.

0:02:09.2 Peter: We're in an era of this type of dude that just wants to be liked so transparently that it's humiliating, but then also, a large chunk of the population being like, this guy seems kinda cool.


0:02:22.9 Rhiannon: Yeah.

0:02:23.4 Michael: Yeah.

0:02:25.2 Peter: Dark.

0:02:25.5 Michael: Dark. Really dark.

0:02:26.4 Peter: Alright. Let's move on to the case, 'cause I can't talk about Elon Musk for that long before I start to lose my mind a little bit.


0:02:32.7 Rhiannon: Right.

0:02:34.5 Peter: Today's case is Utah v. Strieff. This is a case from 2016. And it is the latest addition to our compilation of episodes about the rights that the police are allowed to violate. This one is about whether the police can illegally stop you on the street, search your information, find out you have an outstanding warrant, and then arrest you based on that warrant, even though the original stop was illegal.

0:03:05.7 Rhiannon: Right.

0:03:06.4 Peter: And the court, in a five to three decision written by Justice Clarence Thomas, says, yeah, of course they can. Why not? [laughter] Right?

0:03:13.8 Michael: Yeah.

0:03:14.8 Peter: This is the latest in our anthology of cases that grant cops the express ability to violate your constitutional rights, even when everyone agrees that that is exactly what they are doing. This is an arrangement that has created an array of perverse incentives, not only letting cops get away with violating your rights, but giving them some pretty good reasons to do so if they are so inclined.

0:03:39.6 Michael: Absolutely.

0:03:40.3 Rhiannon: Yeah, rewarding it.

0:03:42.2 Peter: So, Rhi, I'll let you cover some background here.

0:03:46.5 Rhiannon: Yeah, sure. Yeah, I think this is a case about really daily indignities of living in a police state and how the Supreme Court gives that a green light all of the time in all of the ways. Right? So these events that give rise to this case, they happen in 2006. By the time it's at the Supreme Court, it's 2016. But just for situating ourselves in the background facts, this is 2006, Salt Lake County, Utah. Anyone here watch Real Housewives of Salt Lake City?


0:04:16.8 Michael: No.

0:04:18.0 Peter: No, Rhiannon.


0:04:19.9 Michael: No.

0:04:21.0 Peter: No.

0:04:21.5 Rhiannon: Alright. Well, I knew I did the podcast with losers. Anyway, so... [laughter] Okay, so police in Salt Lake get an anonymous tip that a certain house, a house at a certain address had drug activity going on. Detective Doug Fackrell starts watching the house.


0:04:38.4 Peter: Fackrell.

0:04:39.3 Rhiannon: Fackrell.

0:04:40.2 Peter: That's the guy's name?

0:04:40.3 Rhiannon: Yeah.

0:04:40.3 Michael: Yes.

0:04:40.6 Rhiannon: Doug Fackrell starts watching the house, and he detains Edward Strieff after Strieff left the house one day. So as a criminal defense attorney, you're reading a police report, you're talking to your client about like, what happened? How did you get arrested? You're gonna stop right here. You go, hmm, what reason does Fackrell have for detaining Strieff in the first place? Right? Detaining Strieff is a stop. Legally, this is a stop under the Fourth Amendment, which protects you from unreasonable stops. The police have to have a reason for stopping you, so what reason does Fackrell have? He testifies, the officer testifies later, that he doesn't know Strieff. He didn't recognize him. He had never seen him before. He had not seen Strieff go in the house. He didn't know how long Strieff had been inside. He did not know whether Strieff lived in the house.

0:05:28.5 Rhiannon: He didn't even know much about the house. He testified that he had been watching the house off and on for a week or so, for a total of three hours. And he said that he didn't know who owned the house, who lived in it, whether any crimes took place inside? He doesn't know anything.

0:05:44.9 Michael: Top notch detective work.

0:05:47.2 Rhiannon: Yeah, that's right.

0:05:47.4 Michael: What's going on here?


0:05:47.6 Rhiannon: All that happens is he sees Strieff, this guy, leave a house and he stops him. [chuckle] So mental alarms going off here. Again, the criminal defense attorney brain. Wee-woo, wee-woo, wee-woo, those are the mental alarms. [laughter] This is an illegal stop. Actually, side note, do you guys know the song Spirits by the Strumbellas? I got guns in my head and they won't go.

0:06:14.5 Michael: No.

0:06:15.0 Peter: No, you need to stop making references to things, [laughter] to me and Michael.


0:06:20.5 Michael: Yeah.

0:06:21.1 Rhiannon: This is how I feel. That song was in my head today as I read this case, 'cause it's like, I feel like I can't shed the constant Fourth Amendment hyper-awareness in my brain, you know?

0:06:31.4 Michael: Yeah.

0:06:32.0 Rhiannon: Anyways. So this is an illegal stop. That's the point. Fackrell has no reason to stop Strieff. Everyone agrees that this stop is illegal. The prosecutors and the state of Utah never argue that there is justification to stop this man. We should be done here, because generally speaking, whatever Fackrell gets out of Strieff will be inadmissible in court, because it's gathered in violation of Strieff's constitutional rights. But no, the horror parade marches on. Fackrell stops Strieff illegally and he asks him for his ID. Strieff gives him his ID and Fackrell runs a warrant check on him. And as it turns out, Strieff has a warrant out for just a minor traffic violation, but it's a warrant nonetheless.

0:07:16.2 Peter: Busted. Busted, motherfucker.


0:07:17.3 Rhiannon: Yeah, yeah, busted, because you were speeding that one time.

0:07:23.0 Michael: You never paid a parking ticket.

0:07:23.6 Rhiannon: Yeah.

0:07:23.9 Michael: Yeah.

0:07:24.5 Rhiannon: Fackrell arrests Strieff on the warrant and pursuant to the arrest, he now conducts a search on Strieff and he finds drugs in Strieff's pocket. Strieff is charged with drug possession and once he's in court, he moves to have the drug evidence suppressed, because he says it was found only as a result of the illegal stop, right? The Utah Supreme Court agrees with him in a unanimous opinion, says that the evidence was gathered illegally, it cannot be used against Strieff, but the state of Utah appeals and that's how we get to the Supreme Court here.

0:07:56.9 Peter: Yeah, so let's talk about the law a little bit and Rhiannon's touched on it. But the Fourth Amendment protects against unreasonable searches and seizures and part of what that means is that when police stop you on the street, they need reasonable suspicion that you are engaging in criminal conduct. If they stop you without reasonable suspicion, that is an illegal stop.

0:08:18.1 Rhiannon: Right.

0:08:19.7 Peter: And of course, something we've mentioned before is that the way that the Fourth Amendment works is that where there is an illegal stop, whatever the cops find during that stop can't be used against you in court, can't be used as evidence. That is called the exclusionary rule, because whatever they find gets excluded from evidence. So if the cops illegally stop and frisk you and find drugs, too bad for them, it's illegally obtained evidence, right?

0:08:45.6 Rhiannon: Right. Right.

0:08:46.5 Peter: They are not allowed to eat the fruit of the poisonous tree, as fancy judges and law professors like to say. What's interesting here is, again, like Rhi mentioned, everyone functionally agrees that the stop is unconstitutional. All this guy was doing was leaving a house that some cop thought might be the location of drug sales. They had nothing else to go on besides some speculation.

0:09:12.7 Rhiannon: Right.

0:09:12.8 Peter: Now that's an illegal stop. That's not constitutional.

0:09:14.1 Rhiannon: Yeah.

0:09:14.6 Peter: The State of Utah concedes that it's an illegal stop and the court admits the stop was probably illegal. But Clarence Thomas, who writes the majority opinion, says that that doesn't matter. Now allow me to explain his reasoning [chuckle] to the best of my ability. [laughter] So again, police generally cannot use the evidence they gather during an illegal stop. But there is an exception that's relevant here, where there is an intervening event between the stop and the search that might justify the search, that might make the search okay. So, I'll give you an example, let's say the cops illegally stop you. They're asking you questions. You see your mortal enemy walking down the street.

0:10:04.9 Rhiannon: Brett Kavanaugh.


0:10:06.0 Peter: The cops are trying to talk to you and you're like, I can't pass this opportunity up. You go and stab that man to death, right? He's your mortal enemy. The cops...

0:10:15.2 Rhiannon: No comment.

0:10:16.2 Peter: Can say, okay, well, the original stop was illegal, but that was an intervening event. They can arrest and search you because even though that initial stop was illegal, something happened that changed the circumstances completely and justifies the search, right?

0:10:32.9 Michael: Mm-hmm.

0:10:33.3 Rhiannon: Yeah, exactly. This idea is called attenuation in Fourth Amendment jurisprudence. If the illegal stop is attenuated by something, meaning like, the force of the illegal cop activity is reduced in some way, like something softens the blow of the Fourth Amendment violation, so to speak, then the illegal stop can sometimes legally be excused.

0:10:54.3 Michael: Right.

0:10:54.7 Rhiannon: So broadly, there are three factors to consider for analyzing possible attenuation, for analyzing whether an illegal stop can be excused. And basically what the factors tell courts to do is look at how directly the illegal stop led to the discovery of evidence, right? Did the police misconduct directly result in the police finding incriminating evidence? If it did, then the rule is that evidence can't be admissible, right? We can't reward the police for illegal behavior. But if the illegal stop didn't directly lead to the discovery of evidence, then they can still use the evidence they found because their misconduct didn't result in the evidence being found in the first place. So, three factors courts look at when they're looking at attenuation. The factors are temporal proximity, so like, how close in time were the illegal stop and the seizure of evidence?

0:11:43.0 Rhiannon: There's also intervening circumstances, like, what events happened in between the illegal stop and the evidence gathered? And then there's the flagrancy and purpose of the police conduct. So looking at whether police are doing an illegal stop on purpose in order to get evidence, right? Acting in bad faith. The idea is like, looking at these three things can show you if the cops' Fourth Amendment violations directly led to them discovering incriminating evidence, or if the cops' Fourth Amendment violations were attenuated and, therefore, excusable, right?

0:12:14.5 Peter: Right. If they're sort of distant enough, right? If there's enough...

0:12:18.9 Rhiannon: Yes.

0:12:20.2 Peter: Distance between the illegal stop and the ultimate search, then the courts will be like, alright, well, I guess it's okay that you illegally stopped him.

0:12:25.0 Rhiannon: Yeah.

0:12:26.7 Peter: So yeah, Clarence Thomas says, sure, perhaps the stop is illegal, but then the cops ran a search and found a valid warrant for a traffic violation. And that counts as an intervening event, which, you know, is one of the factors Rhiannon mentioned. So now they can arrest and search him and use the evidence that they find against him.


0:12:51.9 Michael: Yeah.

0:12:52.0 Peter: Alright, I'm going to say that again.


0:12:54.3 Rhiannon: Yeah, no, it bears some repeating.

0:12:56.6 Peter: The exclusionary rule says that cops can't use evidence they obtain through illegal stops. The point of this intervening event idea is that there should be an exception where the illegal stop is not the true cause of the cops obtaining the evidence. So I use the example of a situation where in the middle of a stop, the person commits an unrelated murder. Yes, the initial stop might be illegal, but then the circumstances changed due to events outside of the cops' control, events the cops couldn't have anticipated. So courts don't want to hold the illegal stop against the cops in situations like that, right?

0:13:33.0 Rhiannon: Right.

0:13:34.7 Peter: But in this situation, there's no intervening event.

0:13:38.8 Michael: None.

0:13:39.9 Peter: The circumstances haven't changed at all. They find that there's an outstanding warrant because they were illegally hassling this man.

0:13:46.4 Rhiannon: Exactly.

0:13:47.8 Michael: Yes.

0:13:47.9 Peter: It's the natural results of them illegally hassling this man.

0:13:51.8 Rhiannon: Right.

0:13:52.5 Michael: Right.

0:13:52.9 Peter: It's not like something outside of the cops' control resulted in them finding the warrant. Running the warrant search in and of itself was part of their effort to unconstitutionally stop and search this guy.

0:14:02.3 Rhiannon: Exactly.

0:14:02.7 Peter: Right?

0:14:03.4 Michael: Right.

0:14:03.6 Peter: If you follow this logic through, any illegal stop will become a legal stop if they find an outstanding warrant. Right?

0:14:10.0 Michael: Right.

0:14:11.6 Peter: That's basically it. What this is really holding is that if there's a warrant out for your arrest, even for a minor traffic violation, the Fourth Amendment right to not be stopped and searched without cause just doesn't really apply to you.

0:14:24.7 Rhiannon: Yep.

0:14:25.0 Michael: Yeah. You know, at one point, Thomas says, since we basically find that this is an intervening event, we don't have to decide whether the outstanding warrant retroactively made the stop constitutional.

0:14:40.9 Rhiannon: Right.

0:14:42.1 Michael: Which is a bizarre concept to even entertain that it could somehow...

0:14:45.3 Peter: Right. Retroactively making it constitutional.

0:14:47.5 Michael: Retroactively making it constitutional. Like, literally something that would be unconstitutional is nonetheless constitutional, because having a warrant out for your arrest makes you essentially a lesser class of citizen.

0:15:02.1 Rhiannon: Right. Yeah.

0:15:02.7 Peter: Yeah.

0:15:03.5 Michael: But that is in effect what this ruling does regardless. Right? Like, that's essentially what this is doing. And he justifies it on the flimsiest of grounds. He says that like, yeah, well, he ran the warrant check because that's like just... That's standard for officer safety. But like, officer safety? On what grounds is the officer in danger?

0:15:22.3 Rhiannon: You're right.

0:15:23.3 Peter: Right.

0:15:24.6 Michael: He can't articulate any grounds. Like, he can't even articulate grounds to stop this guy, let alone believe that he's a danger.

0:15:29.5 Peter: Right.

0:15:29.8 Michael: Right?

0:15:30.4 Peter: Right.

0:15:30.5 Michael: Like, it's such garbage, just absolute garbage.

0:15:34.1 Peter: It just makes no fucking sense. It just makes no fucking sense.

0:15:38.2 Rhiannon: Right.

0:15:39.3 Peter: The idea that you can just illegally stop someone, find out that they have a fucking traffic ticket...


0:15:46.9 Michael: Yeah.

0:15:47.0 Peter: That like, wasn't paid or something, and then be like, oh, Constitution doesn't apply.

0:15:49.3 Rhiannon: Yeah.

0:15:49.5 Michael: Yeah.

0:15:49.9 Peter: It's just wild.

0:15:51.1 Rhiannon: Right.

0:15:51.6 Peter: Thomas also analyzes another one of the parts of the test that Rhiannon mentioned. He analyzes the purpose and flagrancy of the police officer's conduct. The idea being that the police should not be rewarded if they're acting in bad faith. So we're trying to figure out how bad faith their actions really were.

0:16:09.2 Rhiannon: Right.

0:16:09.4 Peter: Strieff basically said, look, this is a bad faith fishing expedition. Right?

0:16:13.8 Michael: Mm-hmm.

0:16:14.4 Peter: The cops were conducting a search without good reason to suspect wrongdoing. But Thomas just says, no, it wasn't...

0:16:23.5 Michael: That's right.


0:16:23.6 Peter: Because the cops just wanted to know what was happening in the house where they suspected there might be drug dealing. [laughter] Like, I don't know what Clarence Thomas thinks a fishing expedition is, [laughter] but in case you're not a lawyer...

0:16:37.5 Michael: Yeah.

0:16:38.1 Peter: Stopping someone without cause to get information about drug dealing that you have only circumstantial evidence is even happening is for sure a fishing expedition.


0:16:50.3 Michael: Absolutely.

0:16:50.4 Rhiannon: Right. Yeah.

0:16:53.1 Peter: That is like the very definition.

0:16:53.2 Rhiannon: By definition...

0:16:53.5 Michael: Yes.

0:16:53.6 Rhiannon: That's what's going on. That is what cops are doing. They're fishing...

0:16:56.9 Michael: Right.

0:16:57.5 Rhiannon: And you're letting them do it.

0:17:00.1 Peter: Literally fishing for evidence. There's...

0:17:00.8 Rhiannon: Right.

0:17:01.3 Peter: I don't know how else you would describe it.

0:17:01.7 Rhiannon: Exactly.

0:17:02.2 Peter: What Thomas is really saying is like, look, sure, it was a fishing expedition, but he caught a fish and now it's okay.


0:17:07.9 Rhiannon: Right. Right. Right.

0:17:09.1 Peter: The fish is a traffic warrant.

0:17:10.5 Rhiannon: Right.


0:17:13.2 Peter: Oh, shit. Alright.


0:17:13.8 Rhiannon: Yeah, it's cuckoo bonkers. And I think we expect cuckoo bonkers from Clarence Thomas, but it's worth, I think, just making a quick note right here about who is on the court at this time and who's in the majority here. We talk a lot about the makeup of the court now. We talk a lot about the makeup of the court, say, like when we're covering cases in the '80s. This is 2016, the last year of Obama's presidency, and this ends up being a 5-3 decision. So, that's eight justices. The ninth justice, one Antonin Scalia, had recused himself from this case by dying from life...

0:17:54.5 Michael: Right.


0:17:56.5 Rhiannon: If you will. And so, there are only eight justices hearing this case. Now, okay, we know it's written by Clarence Thomas and he has three other conservatives with him on the court at this time. Roberts, Kennedy and Alito join him. And then there are four liberals on the court at this time. Ruth Bader Ginsburg, Kagan, Sotomayor and Breyer.

0:18:17.6 Peter: Oh, so it's a tie.

0:18:17.9 Rhiannon: Right.

0:18:19.0 Michael: Right.

0:18:19.1 Rhiannon: You would think on ideological lines you would get a 4-4.

0:18:22.9 Michael: Which affirms the lower court and sends it back with that decision.

0:18:26.1 Peter: Right.

0:18:26.5 Rhiannon: Right. Right. You would get a 4-4 decision which would affirm the lower court. Here that's the Utah Supreme Court, which ruled for Strieff. So what the fuck happened? This is 5-3. Well, recently retired tub of cottage cheese, Stephen Breyer, [laughter] voted with the fucking majority here.

0:18:46.2 Michael: That's right.

0:18:46.3 Rhiannon: So we have a 5-3 decision. All of the conservatives, Clarence Thomas writing for the majority and Breyer saying, yeah, yeah buddy, let me in there. Get me in there, baby.

0:18:57.6 Peter: Not even a concurrence to be like, look, Clarence Thomas's reasoning is dumb as shit.

0:19:01.0 Rhiannon: Right.

0:19:01.1 Michael: Yeah.

0:19:03.9 Peter: But I agree with the conclusion.

0:19:04.4 Rhiannon: Right. No.

0:19:05.6 Michael: No.

0:19:05.7 Peter: No, he just signs on.

0:19:07.9 Rhiannon: Yeah. He's like, this is great.

0:19:10.1 Peter: I mean, we've talked about Stephen Breyer's poor sign sympathies before, and here they are.

0:19:15.0 Rhiannon: Yeah. He loves the smell of bacon.


0:19:18.5 Peter: Alright. This feels like a good time to take a break.

0:19:22.1 Rhiannon: And we're back.

0:19:23.3 Michael: So we should talk about the liberals in dissent. Kagan writes one joined by Ginsburg. It's alright. It's like pretty technical. She does a couple of things. One, she talks a little bit about incentives. Right? And the idea behind the exclusionary rule here is to disincentivize unconstitutional behavior from police.

0:19:48.6 Rhiannon: Right.

0:19:50.1 Michael: And her point is that this decision does the opposite, it incentivizes it. There are essentially no recourses for people who are stopped by police, have their ID checked, and then are sent on their way without issue. Right? There's nothing to do if that happens to you. You could log a complaint. Good luck having anything happen with that other than maybe further harassment by the police in retaliation.

0:20:15.8 Rhiannon: Right. Yeah.

0:20:16.2 Peter: Right.

0:20:16.9 Michael: But if a warrant does come up and there's a decent chance there are something like, over seven million active warrants in the United States at any given time for all sorts of minor reasons, often unpaid tickets, yeah, you could be arrested. You could be searched. You could have all sorts of stuff happen to you that Sotomayor describes vividly in her dissent. And so, this is incentivizing police to engage in these sorts of routine illegal stops, because there's no downside, you know? Either...

0:20:50.9 Rhiannon: Exactly.

0:20:51.6 Peter: Right.

0:20:52.0 Michael: You find nothing and you let someone go or you find a warrant and you arrest them and now you're in the clear. So that's pretty bad, right? And here you can see it's like rewarding lazy police work. Someone got a tip...

0:21:05.5 Peter: Yeah.

0:21:05.6 Michael: Watched the house for a few hours, got frustrated that it wasn't going anywhere and just went and illegally stopped and searched someone. And that search turned up methamphetamine and now he gets to get an arrest out of that and he's rewarded for that illegal stop, right?

0:21:20.1 Peter: Mm-hmm.

0:21:20.9 Rhiannon: Yep.

0:21:21.7 Peter: Yeah, I mean, it's almost such an obvious point that it's a frustrating dissent to read...

0:21:26.3 Michael: Yes.

0:21:27.7 Peter: Because clearly Kagan is right.

0:21:29.8 Michael: Yes, [chuckle] it's bizarre.

0:21:29.9 Peter: Yeah. If you just allow cops to stop random people run warrant searches and then arrest whoever...

0:21:37.2 Rhiannon: Right.

0:21:37.4 Michael: Yeah.

0:21:38.1 Peter: Then there are literally no consequences for unconstitutional stops. How can you not see that?

0:21:44.1 Rhiannon: Then what are we doing here?

0:21:45.3 Michael: Right.

0:21:45.8 Rhiannon: Right.

0:21:46.1 Peter: It's sort of mind bending that the conversation even needs to be had, let alone that you can get five votes for the other side of it at the court.

0:21:53.6 Rhiannon: Yeah, exactly.

0:21:54.6 Michael: Right. The other point she makes, I thought wa interesting from an academic sense, worth stating I think, is that Fourth Amendment law back in the day has its roots in tort law. Tort law is like if you slip and fall in a Walmart parking lot, they didn't put salt down during the winter and so ice built up and you slipped and you fell and you hurt yourself, you sue them, that's a tort, right? Fourth Amendment was treated similarly, it was treated like a trespass essentially. And her point is that this idea of intervening circumstances and attenuation that we're talking about in this case has its roots in tort law and something called proximate causation. And the idea behind that is like, okay, if Walmart doesn't maintain its parking lot and you slip and you fall, but it has nothing to do with their maintenance of the parking lot, right?

0:22:44.4 Rhiannon: Right.

0:22:44.5 Michael: If you're just clumsy, then you can't sue them, right? You might have a poorly maintained parking lot and an injury on site, but that one didn't cause the other, right? And...

0:22:53.6 Rhiannon: Right. Right.

0:22:54.0 Michael: There's this sort of chain of causation. And so she talks about this proximate causation concept and how in tort, that's all about foreseeability, whether or not something's foreseeable. If you don't put down salt, then snow and ice build up and someone slips and falls. That's very foreseeable. And her point is if you check someone's ID for warrants, finding a warrant is [laughter] not just a foreseeable outcome, it is the intended foreseeable outcome, right? Like...


0:23:21.5 Peter: Right.

0:23:21.8 Rhiannon: Right. Right. It's the whole point. Yeah, exactly.

0:23:23.7 Michael: This is what the point... This is what we're doing here. [chuckle] What are we talking about? It's just totally backwards. [laughter] It's bizarre. I thought it was a good point. It was well made.

0:23:37.0 Peter: Yeah.

0:23:39.2 Rhiannon: Yeah, yeah, definitely. Sotomayor has a great dissent. This is also joined by Ruth Bader Ginsburg, except this dissent is a four part dissent, Roman numerals I through IV. And Ruth Bader Ginsburg is explicitly not joining part IV. We'll talk about that in a second.

0:23:53.3 Michael: Yes.


0:23:55.1 Rhiannon: Liberals doing some really fucking creepy shit in this case, if I do say so myself.

0:24:00.2 Michael: Fucking Clinton employees, man.


0:24:03.4 Rhiannon: Yeah, for real.

0:24:05.7 Peter: Yeah.

0:24:06.8 Rhiannon: Sotomayor's dissent is really good. She points out how based on case law, precedent, the Fourth Amendment, what the role of the judiciary is, this is a terrible decision, right? She says explicitly more than once that the officer found drugs because he exploited his own illegal conduct, which violated Strieff's Fourth Amendment rights, right? The officer got the drugs as a direct result of illegally stopping him. Period. Doing a warrant search is not an intervening event. It's all the same investigation in the span of a few minutes, right? And that all happens because you have detained this person illegally. Period. She talks about the court's role in greenlighting this behavior. She says, "When courts admit illegally obtained evidence, they reward manifest neglect, if not an open defiance of the prohibitions of the Constitution." So she's saying we're not just allowing cops to violate your rights, we're rewarding them for it, because we've removed the accountability mechanism in place, which is the exclusionary rule.

0:25:07.4 Peter: How far are we from just the court being like, okay, sure, the cops stopped you illegally, but then there was an intervening event, which is that he reached into your pocket and found drugs.

0:25:19.0 Michael: Right.


0:25:21.0 Rhiannon: Right. Right.

0:25:21.1 Michael: Right.

0:25:21.1 Peter: That's basically what's happening.


0:25:22.2 Michael: Right.


0:25:22.4 Rhiannon: Exactly. Exactly. Let's talk about part four of this dissent. The whole dissent is not very long. I think it's a really good one for people to read, Sotomayor's dissent. And part four, I think, is really special. She takes some time, again, writing just for herself to sort of recognize, contend with the reality of this kind of daily police practice. She's talking about how modern day policing naturally results in so many people having warrants out for their arrest, right? Based on minor violations, based on not paying traffic tickets, that kind of thing. She also talks about how people of color are surveilled, stopped, arrested disproportionately compared to White people. She's talking about real world relationships between citizens, American residents, and the police, right?

0:26:16.9 Rhiannon: She says, "This case tells everyone, White and Black, guilty and innocent, that an officer can verify your legal status at any time. It 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. We must not pretend that the countless people who are routinely targeted by police are isolated. They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."

0:26:58.9 Michael: Tell 'em.

0:27:01.1 Rhiannon: Beautiful, I think, some of her best writing, really, in this dissent.

0:27:04.5 Michael: Yeah.

0:27:05.9 Rhiannon: Ruth Bader Ginsburg doesn't join this section.

0:27:07.4 Michael: Right.

0:27:07.5 Peter: Intentionally backs away from the dissent. She joins the rest of it until Sotomayor...

0:27:12.1 Rhiannon: That's right.

0:27:12.7 Peter: Gets to that part, and she's like, ooh, a little much.

0:27:15.7 Rhiannon: Don't like that.

0:27:17.4 Peter: Yeah.

0:27:17.5 Michael: And she earned it too. She goes through what happens when you get arrested.

0:27:21.5 Rhiannon: Oh, yeah. No, this is...

0:27:22.5 Peter: Yeah.

0:27:22.7 Rhiannon: It's a beautiful dissent. She's talking about concrete stuff. Yeah.

0:27:26.5 Michael: Strip searches being deloused...

0:27:29.1 Peter: Yeah.

0:27:29.8 Michael: Inhumane, degrading treatment that happens when you're...

0:27:33.7 Rhiannon: That is rote. That is normal and daily.

0:27:36.2 Michael: Right.

0:27:36.8 Peter: Right. And an especially salient point, because throughout the majority opinion is the implication that the court is forgiving the illegal conduct of the cops, because they're surveilling a potential drug house, right? And then you have cases like Ren v. United States, which we covered earlier this year, where the cops were hanging out in a high drug area, following around cars that they thought seemed shady, waiting until they committed a traffic violation, then pulling them over and trying to search the car.

0:28:15.1 Michael: Right.

0:28:15.9 Rhiannon: Right. Right.

0:28:16.2 Peter: Court said that was okay too. What this adds up to is that people who live in high crime areas, no matter the person, in economically depressed areas, functionally have lesser rights, because the place that they live in is being used to justify police intrusion into their lives.

0:28:33.7 Michael: Yeah. That's right.

0:28:34.1 Rhiannon: Yeah. Yeah, exactly. And the court, the Supreme Court has had a front seat role to green lighting all of this, right? To creating this modern day police state that we live in. Just to go through like, a few of the Supreme Court opinions on the Fourth Amendment and what the Supreme Court has given the green light to. Peter, you mentioned Ren that allows pretext stops, right? The cops can legally stop you for a pretext reason when they're actually investigating and looking for something else. Reasonable suspicion, the Supreme Court has said that can include factors like your ethnicity, where you live, where you are, what you're wearing, how you're acting. An officer does not have to know which law you might have broken, just an idea of something being illegal can arrest you. And as long as there is a law on the books of something that you have done illegally, that's okay for the Supreme Court. An officer can ask for your consent to search without telling you that you can decline. An officer can frisk you because he says he feels unsafe. An officer can arrest you for even traffic violations. You can and will be strip searched if you go to jail.

0:29:44.6 Rhiannon: Your fingerprints will be taken. Your DNA will be swabbed, on and on and on and on. I'm talking about Supreme Court cases, right? The Supreme Court has said all of this is okay. And so, you have to ask yourself at some point, what the fuck does the Fourth Amendment even mean then?

0:30:00.4 Michael: Yeah.

0:30:00.7 Rhiannon: Why do we have it? It's supposed to protect me and my community from unreasonable searches and seizures. What about any of this is reasonable? It's so infuriating.

0:30:11.0 Michael: Right.

0:30:12.2 Rhiannon: And for me, I think a lot about how this is all in the name of public safety and how cops are sort of on this special pedestal and we give them certain abilities, because they're supposed to be keeping us safe. What the Supreme Court does in Fourth Amendment jurisprudence is make us fundamentally unsafe in relation to the police, right?

0:30:36.7 Michael: That's right.

0:30:36.8 Rhiannon: None of those things that I just described, which are things that happen every day, all of the time to so many people, none of those are things that make me feel safe, are things that have kept communities safe. None of those things, if you're going through the system, keep you safe. Those are fundamentally actually foundationally unsafe things that the police put us through.

0:30:57.6 Michael: Yeah, something that struck me was reading this, the second sentence of the opinion, Clarence Thomas' opinion says, "But the court has also held that even when there's a Fourth Amendment violation, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits." And I was just taken aback because that is an accurate statement, broadly speaking of the case law. But I cannot imagine Clarence Thomas standing for that, a rote recitation of the case law like that. A cost benefit analysis if we were talking about violations of the Second Amendment...

0:31:41.6 Rhiannon: Right.

0:31:42.7 Michael: Violations of the free exercise clause of religion in the First Amendment.

0:31:45.1 Rhiannon: Yeah.

0:31:45.7 Michael: Are you kidding me?

0:31:46.1 Rhiannon: Right.

0:31:46.5 Michael: Oh, the cost benefit of...

0:31:48.3 Rhiannon: Of violating people's rights.

0:31:50.1 Michael: Of violating people's rights.

0:31:51.7 Peter: Right.

0:31:52.4 Michael: Clarence Thomas would just shrug his shoulders and be like, yeah, that's a violation of the Second Amendment, but it would really help public safety [chuckle] to restrict...

0:32:00.1 Peter: Right.

0:32:00.5 Michael: Handgun ownership. Yeah. Clarence Thomas is gonna say that? No, no, absolutely not.

0:32:04.9 Rhiannon: Right.

0:32:05.0 Michael: This only happens, this case is only possible because this is a disfavored amendment among the conservatives.

0:32:15.2 Peter: Right.

0:32:15.8 Rhiannon: Right.

0:32:15.9 Michael: This is not a right they value and it is a right they are happy to hack away at, right?

0:32:19.0 Rhiannon: Right.

0:32:20.7 Michael: There is nothing faithful to the Constitution about this decision.

0:32:25.8 Rhiannon: Right. Because it protects people they do not care about.

0:32:27.8 Michael: Right. This is an opinion written by someone who imagines this country as a boot on somebody else's neck.

0:32:34.6 Rhiannon: Yeah.

0:32:35.4 Michael: Not his own.

0:32:36.7 Peter: Yeah. Rhi, you were talking about public safety. What they envision as public safety is safety for the in-group.

0:32:43.5 Michael: Right.

0:32:44.1 Peter: Right?

0:32:44.2 Rhiannon: That's right.

0:32:44.3 Peter: The brutalization of the out-group.

0:32:44.7 Rhiannon: Right.

0:32:44.9 Peter: The assurance that the out-group will remain powerless and weak and unable to harm the in-group, even if that means that their rights are violated. That's what they mean by public safety.

0:32:58.8 Michael: Yeah.

0:33:00.0 Rhiannon: Yeah. Yeah, that's exactly right. And there's this really interesting way that the Fourth Amendment jurisprudence up until this point, that what that has really done in terms of teaching the police anything, right?

0:33:15.9 Michael: That's right.

0:33:16.1 Rhiannon: You would think that Fourth Amendment jurisprudence with the Supreme Court is writing about the Fourth Amendment. It is telling police clearly what they can't do. Right? The ways that they cannot violate people's rights, the areas of our private lives that are protected by the Constitution against the police. Right? But in reality, the way this jurisprudence has come down and the way they talk about the Fourth Amendment and treat the Fourth Amendment is that Fourth Amendment Supreme Court cases only serve to tell police what terminology to use to describe their conduct. Right?

0:33:51.0 Michael: Right.

0:33:51.4 Rhiannon: What to put in a police report to make it so that this passes the most hollow of musters. Right? And so, Fourth Amendment jurisprudence, especially since the civil rights era and the civil rights movement has done the opposite of what we think it should do or what we expect it to do. Right? Which is to protect us. It's only told police what they can say and how they can violate people's rights, right?

0:34:18.2 Peter: Right. What a good excuse to use is once they violate your rights.

0:34:22.1 Michael: Right.

0:34:22.7 Rhiannon: Exactly.

0:34:23.4 Peter: And I think we talked about this way back in Terry v. Ohio, episode five or so. But you'll see cops in police reports use the word furtive, which means it's kind of a secretive subtle movement usually. Right?

0:34:37.9 Rhiannon: Right.

0:34:38.7 Peter: Like, oh, he made a furtive movement. Now, why would some fucking schmuck from Staten Island know the word furtive? Because the Supreme Court popped it into an opinion once.

0:34:49.5 Rhiannon: Yeah.

0:34:49.9 Michael: Right.

0:34:50.0 Peter: And then that becomes the terminology they use. And you have these absolute dipshits with a second grade education being like, yeah, I think he was making some furtive movements over there.

0:35:00.3 Rhiannon: Right. Right.

0:35:00.5 Michael: Yeah.

0:35:01.3 Peter: And courts are like, well, if you say so, officer, thank you. Thank you for your service.

0:35:04.0 Michael: Right. And that is, I think, it's a direct output of what I would say is a permissive attitude towards cops, right?

0:35:12.4 Rhiannon: Yes.

0:35:12.4 Michael: The Supreme Court takes a permissive attitude towards police behavior with the Fourth Amendment, and as a result, their opinions turn into report writing seminars. Right?

0:35:25.3 Rhiannon: Yes. Yes.

0:35:25.6 Michael: Cops do whatever they want and then use the right terminology and buzzwords that they've picked up from the Supreme Court and from their trainings on Supreme Court cases to describe what they did in reports to make it sound constitutional.

0:35:38.9 Rhiannon: That's right.

0:35:39.1 Michael: Doesn't matter whether it was constitutional as long as it sounds constitutional.

0:35:42.8 Rhiannon: Yes. So I have an example of this that I will never forget, because it's like the wheels are barely turning. A cop is using this vocabulary that he thinks is correct, but he's just, at the end of the day, a fucking idiot. And so, it doesn't work as he wanted it to. So I, one time... It wasn't my client, but I watched a hearing on a motion to suppress. This is the type of hearing that's exactly at issue in this case. Right? Defendant is saying, my rights were violated by the police when I was stopped or searched, and so, the evidence should be inadmissible. The cop was on the stand, was talking about how he pulled over the defendant's car. And so he said, yeah, I stopped the car. And then what did you do next? I frisked the car. It was a stop and frisk. [laughter] And so, you see how they have the language, right? They know stop and frisk is something you can do.

0:36:43.8 Peter: Right. Right.

0:36:45.4 Rhiannon: That's terminology I learned from the training I had on Supreme Court cases. Right? But a fucking idiot doesn't know you can't frisk a car.

0:36:52.9 Peter: Just like a couple of neurons bouncing around...

0:36:54.7 Rhiannon: Exactly.

0:36:55.4 Peter: The fucking DVD screensaver...


0:36:57.6 Rhiannon: Right.

0:36:57.9 Peter: And just connecting like, oh, frisk.

0:37:02.5 Michael: The gas cap made some furtive movements.


0:37:06.3 Rhiannon: Right. Right. You're right. [laughter] It's just barely word association, right?

0:37:10.9 Michael: Right.

0:37:11.5 Peter: Right.

0:37:12.1 Rhiannon: He just knows he's supposed to say certain buzzwords, right? And so he says that I stopped and frisked a car. The judge in that situation literally stopped the hearing and was like, sir, what are you talking about? [laughter] And he's like, I stopped and frisked the car. And the judge was like, you... I'm sorry, you cannot frisk a car. That's not a thing. That's not what that word means. [laughter] They're so fucking stupid. Anyways, Clarence Thomas is just like, whatever, that guy should be doing more arresting.


0:37:43.6 Michael: And then judges accept them as credible and district attorneys put them up on the stand to testify, knowing that they lie all the time. And the system just keeps on running. The wheel keeps on turning. And...

0:37:58.8 Rhiannon: Yeah.

0:38:00.4 Peter: Yeah.

0:38:00.5 Michael: Poor and Black and Brown people keep on getting crushed underneath it.

0:38:01.5 Rhiannon: Yeah.

0:38:02.4 Peter: Yeah. And this case even goes beyond just the weaponization of the court's vocabulary by cops, because it's part of a group of cases across various different areas of criminal law that essentially stand for the proposition that even where cops have malicious and illegal intent, it will be forgiven or ignored, right?

0:38:25.3 Rhiannon: Yes.

0:38:26.5 Michael: This cop couldn't even be bothered to come up with...

0:38:27.7 Peter: Right.

0:38:27.9 Michael: A furtive movement excuse to stop this guy.

0:38:30.1 Rhiannon: Right. Right.

0:38:30.8 Peter: Right. The cop here could have literally just lied and we wouldn't even know about it.

0:38:35.3 Michael: Right.

0:38:35.6 Rhiannon: Exactly.

0:38:35.8 Peter: Cops do this all the time, right?

0:38:36.0 Rhiannon: Yeah, that's exactly right.

0:38:38.3 Peter: Just sort of his word against the guy's, right? Didn't even bother. So you have cases like this where a cop is making a stop that any officer would know is illegal. And everyone here from the state of Utah to Clarence Thomas knows is illegal, but zero consequences, right? You have Ren v. United States, which we just mentioned, which says that cops can follow you around until you commit a traffic violation on a hunch. You have Egbert v. Boulet and Nieves v. Bartlett cases about retaliatory arrests that we've covered saying that cops can arrest you in retaliation for saying something that they don't like as long as they can find an excuse, right?

0:39:17.8 Peter: And underlying all of this, you have qualified immunity, of course, protecting cops from any actual liability if they ever are found to be in violation of the Constitution. So you have this perverse structure where police are literally allowed to violate your rights as long as they can make something up, as long as they can make up an excuse. And sometimes even when they don't have an excuse.

0:39:43.8 Michael: Right.

0:39:44.8 Peter: Right? Like this one. If they can pin just a traffic violation on you, that's enough justification for the violation of your constitutional rights according to the court. When I think about the audacity and scale of that injustice, what it makes me think is, fuck the police.


0:40:03.7 Michael: Yeah.

0:40:04.2 Peter: You know?

0:40:04.7 Rhiannon: Absolutely. Absolutely. Fuck those fucking pigs.

0:40:09.5 Peter: Alright. I have one final thought here, guys, about the conservative psychology in this opinion.

0:40:16.2 Rhiannon: Here we go. Classic Peter.


0:40:21.1 Peter: Yeah. Sorry. I have to. [chuckle] I have previously outlined my good boy-bad boy theory of conservative criminal law opinions. The idea being that they divide society into good boys and bad boys and have no problem with the rights of the bad boys being violated. Other people have articulated it better than me, but no one quite as concisely as good boy-bad boy theory.


0:40:43.6 Rhiannon: Right, right, right.

0:40:44.9 Peter: So, like we mentioned, this holding essentially means that if someone has an outstanding warrant, even for something minor, like a traffic violation, they have no Fourth Amendment right not to be stopped and searched without cause. The reasoning is very clearly predicated on the idea that you can just do this to certain types of people, right?

0:41:05.8 Rhiannon: Yeah.

0:41:06.9 Peter: That these people are criminals who simply do not deserve the rights that the rest of us deserve, right? They are a separate class of citizen to which the Fourth Amendment literally does not apply and is irrelevant.

0:41:19.2 Rhiannon: That's right.

0:41:19.2 Peter: And I think that's just quintessential reactionary thought, right? The idea that there is just this underclass that not only is abused, but can legally be abused...

0:41:31.6 Rhiannon: That's right.

0:41:32.3 Peter: That their abuse is an exception to the rules that apply to the rest of us.

0:41:37.9 Rhiannon: Yeah.

0:41:37.9 Peter: That's what's so fucking dark about this opinion. And just to mention it one more time, even darker that some fucking ostensible liberal like Stephen Breyer would ever sign on to it...

0:41:49.0 Michael: Yeah.

0:41:49.7 Rhiannon: Bro.

0:41:50.1 Peter: Is vile.

0:41:50.6 Michael: Yeah. Not even write a concurrence.

0:41:52.6 Rhiannon: Don't let me and Stephen Breyer meet on the street. You know what I mean? Just don't.

0:41:57.4 Peter: No.

0:41:57.5 Rhiannon: Don't fucking let it happen, God.


0:42:06.6 Peter: Next week, Glossop v. Gross, a case about cruel and unusual punishment and whether it applies to brutal lethal injection procedures. I won't spoil it.

0:42:22.9 Rhiannon: Well, who writes the majority?

0:42:23.3 Peter: A majority by Samuel Alito.

0:42:25.7 Rhiannon: Great.

0:42:26.3 Michael: Woo. [chuckle] Alright.


0:42:29.8 Peter: Don't worry. Concurrences by Scalia N. Thomas.


0:42:33.5 Michael: Oh, yeah.

0:42:34.2 Rhiannon: Let me just... I'm gonna walk into oncoming traffic now.


0:42:37.8 Peter: I don't know why I put this on the calendar.


0:42:41.4 Rhiannon: Yeah. What the fuck?

0:42:42.7 Peter: It's gonna be a rough week for all of us. [laughter] Follow us on Twitter @fivefourpod. Subscribe to our Patreon to support us and get premium episodes, access to special events, access to our Slack, all sorts of shit. And if I may, folks, perhaps check out my new other podcast, If Books Could Kill, which...

0:43:05.8 Rhiannon: Yeah.

0:43:06.5 Peter: I just launched with my buddy Michael Hobbs.

0:43:09.8 Michael: It's pretty good.

0:43:09.9 Peter: And it's critically acclaimed, raved about, number one podcast in the country, maybe in history. [laughter] But... I'm hearing that it might be number two to five to four, but I'm not hearing anything else.

0:43:20.6 Michael: I think that's right. I think that's right.

0:43:22.1 Peter: I mean, I know where my bread's buttered, folks. Don't worry. Don't worry. You won't lose me to the incredible fame of having a popular Normie podcast. [laughter] I promise. That is my promise to you.

0:43:33.1 Rhiannon: That's right. That's right. And don't forget it, Peter.

0:43:35.9 Peter: Alright. We will see you folks next week.

0:43:39.3 Michael: Bye-bye.

0:43:39.4 Rhiannon: Bye.

0:43:39.3 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Nayfok and Andrew Parsons provide editorial support. Our production manager is Persia Verlin and our assistant producer is Arlene Arevalo. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.


0:44:15.1 Peter: Guys if I told you the words that Michael Hobbs does not let me say, [laughter] you would be shocked and appalled.


0:44:18.2 Rhiannon: You can't even say slurs toward the police on that podcast.