Bench Memos

Vox Gets Utah v. Strieff Holding Wrong

Misrepresenting the holding of a Supreme Court case makes it easier to persuade unsuspecting readers that a dissenting opinion is “devastating.”

Victoria M. Massie — a race and identities reporter at Vox — does exactly that in a recent article. Massie extols Justice Sotomayor’s “devastating” dissent in the recent Supreme Court case Utah v. Strieff. In doing so, she distorts the majority opinion beyond recognition. She claims that the Court allowed prosecutors to use evidence seized during an illegal stop at a trial “because the evidence seized weakened the unlawful stop.”

A reader could be excused for believing that Justice Sotomayor devastated such an incoherent holding. After all, the Fourth Amendment would be quite toothless if unconstitutional stops could be justified whenever they happened to produce useful evidence. Massie’s version of the holding sounds like an invitation for police to conduct illegal searches in the hopes of finding useful evidence. After all, what would they have to lose? Fortunately, Massie’s holding is not the Supreme Court’s holding.

The Court actually held that prosecutors could use evidence connected to an illegal stop if the illegal stop was the result of a good-faith mistake, and there was an intervening event separating the initial illegal stop from the subsequent legal search that produced the evidence.

In this case, a police officer observed Strieff exiting a house where he reasonably believed drugs were sold. The officer stopped Strieff and asked him for his name and an explanation of what he was doing at the house. This stop was illegal because the officer did not collect enough evidence suggesting Strieff was at the house to buy drugs. Even though the Court concluded that the officer “was at most negligent,” any evidence found at that point would have been suppressed due to its connection to an illegal search.

However, the officer did not search Strieff at that point. Instead, he relayed Streiff’s information to the police department. The dispatcher responded that Strieff had an outstanding arrest warrant. The police officer arrested Strieff and only then searched him for evidence.

Normally, such a search following arrest is constitutional. The question in this case was whether the original illegal stop sufficiently tainted the later legal search to require suppression of the evidence. The Court ruled that, at least in cases where the original stop was a good-faith mistake, it did not.

The fact that the police found useful evidence did not justify the original illegal stop, as Massie suggested. Justice Thomas noted that, under the right circumstances, illegal stops could “expose police to civil liability” regardless of whether evidence was suppressed. The legality of the subsequent search cannot cure or even “weaken” the illegality of the original stop.

The headline of Massie’s piece exclaims that “you need to read” Justice Sotomayor’s dissent. Maybe, but Massie needs to read Justice Thomas’s majority opinion.

Howard Slugh is an attorney practicing in Washington, D.C. He is a co-founder of the Jewish Coalition for Religious Liberty.

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