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Would Scalia Say This Was an Illegal Search?

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The death of Justice Antonin Scalia and the interbranch dispute about the nomination of his successor draw attention to the U.S. Supreme Court at its most grand and important. But Monday morning, the eight justices sit down for business as usual. One case, about Veterans Affairs Department set-aside contracts, will be decided on the interpretation of a statute. It’s the kind of case that excited Scalia and that most of the other justices consider routine.

The other case, Utah v. Strieff, is a little different. It’s about the legal consequences of an illegal police stop. In the era of Ferguson, no topic connected to illegal arrests can be considered unimportant.

QuickTake U.S. Supreme Court

In December 2006, a police officer in South Salt Lake, Utah, acting on an anonymous tip, staked out a house for about three hours over the course of a week. Observing people going in and out, the officer decided he’d stop the next person out to try to determine whether drugs were being sold inside.

Edward Strieff was the next person -- and the officer stopped him and asked for his identification. The stop was illegal, because it wasn’t based on probable suspicion of Strieff in particular. Either the officer didn’t realize that, or he didn’t care.

Once Strieff produced his ID, the police officer called headquarters and discovered that there was an outstanding traffic warrant out on Strieff. The officer arrested Strieff, then searched him -- normal practice when any arrest is made. Strieff was carrying methamphetamine and drug paraphernalia. Now the police had a more significant charge against him.

The question before the Supreme Court is whether the arrest and the search that followed should be excluded from any trial against Strieff on the grounds that they’re “fruit of the poisonous tree.”

As you know if you’ve ever watched a court show on television, there’s a legal principle called the exclusionary rule, which says that evidence obtained in an illegal stop or search can’t be used at trial. The poisonous tree is the illegal stop; its forbidden fruits are the results of the subsequent search. The exclusionary rule is the kind of technicality that people see either as basic to our constitutional system or as absurd mollycoddling of criminals -- depending on their politics.

You might also know from TV that there are exceptions to the exclusionary rule. The most famous one, inevitable discovery, doesn’t apply here, because there was no way that the drugs would’ve been found on Strieff if he hadn’t been stopped.

There’s another, less well-known exception, known as the doctrine of attenuation. The Supreme Court has in the past only applied that doctrine in cases of confessions. When a person is stopped or arrested illegally, released, and then later spontaneously confesses to a crime, the court has held that the subsequent confession was so loosely connected to the original unlawful stop that it shouldn’t be excluded.

The state of Utah argues that the same doctrine of attenuation should apply when the reason for the search isn’t the initial, unlawful stop, but rather the existence of a legitimate warrant that leads to the arrest and search. The idea is that, in Strieff’s case, the illegal stop wasn’t the proximate or immediate cause of the search. Rather, the connection between the initial illegal stop and the search was attenuated by the police discovering an arrest warrant for Strieff.

The state’s argument isn’t absurd. In the Supreme Court’s attenuation cases, an independent act intervened between the unlawful stop and the subsequent confession. Arguably, an intervening state of affairs, namely the arrest warrant, existed in Strieff’s situation.

The Utah Supreme Court rejected this argument. It reasoned convincingly that in the Supreme Court’s attenuation cases, the intervening act was voluntary by the defendant, which was not the case for Strieff. In chronological terms, the initial illegal stop was proximate to the arrest and search. What’s more, if Strieff hadn’t been stopped illegally, there would’ve been no reason to run his name through the police computers and find the outstanding warrant. Thus, the illegal stop was the but-for cause of the search: but for the stop, the search wouldn’t have happened.

Why, then, did the Supreme Court agree to hear the case? The simplest explanation is that state courts and courts of appeal are divided on whether an intervening arrest warrant is grounds for an exception to the exclusionary rule. The court sees its job as resolving such splits.

The other possibility is that the conservative justices saw the case as an opportunity to reduce the effects of the exclusionary rule, which they don’t much like. If that’s so, then Scalia’s death changes the equation. It seems highly likely that the four liberal justices will hold that there should be no exception from the exclusionary rule under conditions like those in Strieff’s case.

That means the exclusionary rule can’t be weakened now that Scalia isn’t on the court. Even if Justice Anthony Kennedy wanted to provide the deciding conservative vote on the issue, he can’t. A 4-4 tie will lead to the Utah court’s decision being upheld.

The justices will be missing Scalia, no doubt. It’s fitting that one of the first cases to be heard without him shows how much his absence changes the balance of the court. And if the Senate refuses to confirm any nominee during Barack Obama’s presidency, we can count on changed outcomes throughout this Supreme Court term, and the next.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

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Noah Feldman at

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Stacey Shick at