Release Date:  February 18, 2016
Contact:  Michael Rushford
(916) 446-0345

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Oral argument in Utah v. Strieff on Monday, February 22

The U. S. Supreme Court will hear oral argument Monday to review a Utah Supreme Court ruling which held that evidence obtained in a police search must be suppressed under the federal exclusionary rule. At issue in the case of Utah v. Strieff is whether the Fourth Amendment requires that valid evidence discovered during a valid arrest with a warrant must be suppressed because a preceding investigatory stop was made with slightly less than the amount of evidence required for a stop.

The Sacramento-based Criminal Justice Legal Foundation has joined the case to argue that, as written, there is no Fourth Amendment requirement that probative evidence be excluded because a police officer made an honest mistake leading up to the search.

In December 2006, Salt Lake City narcotics detective Doug Fackrell, an 18-year law enforcement veteran with specialized drug enforcement training, responded to an anonymous tip reporting narcotics activity at a house in South Salt Lake City. During surveillance of the house, Detective Fackrell observed numerous short-term visitors consistent with drug activity.

On December 21, 2006, while watching the house, Detective Fackrell observed Strieff visit and leave the house over a short period. He followed Strieff for about a block and stopped him at a parking lot. After checking Strieff’s identification, Detective Fackrell learned that there was a warrant out for his arrest. In a search incident to the arrest, he found methamphetamine, a glass pipe used to smoke the drug, and a small plastic scale with white residue in Strieff’s possession.

At trial, Strieff was charged with possession of methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was the fruit of an unlawful, investigatory stop. The prosecutor argued that the facts available to Detective Fackrell at the time of the stop did not “quite meet the level of reasonable suspicion under” Terry v. Ohio, but under existing precedent the evidence should be admitted because the arrest and search were based on the warrant, not on the suspicion leading to the initial stop.

The state trial court agreed, concluding that Fackrell’s initial stop “was not a flagrant violation of the Fourth Amendment” nor did he exploit “the initial unlawful detention to search” Strieff since he had no prior knowledge of the arrest warrant. With his motion to suppress denied, Strieff pleaded guilty to possession of drug paraphernalia and attempted possession of a controlled substance.

On appeal, Strieff lost a 2-1 decision in state appellate court which held that the stop was not “in knowing or obvious disregard of constitutional limitation.” The court agreed that the pre-existing warrant was an intervening circumstance that “sufficiently attenuated” the taint of the stop.

The Utah Supreme Court reversed that decision in a ruling which acknowledged that Strafe was lawfully arrested and lawfully searched incident to arrest, but because the stop was unlawful, the evidence should have been excluded.

The state high court held that the attenuation exception does not apply when the intervening event is based on a warrant, applying only when the event involves “a defendant’s independent acts of free will,” such as a confession.

In a scholarly amicus curiae (friend of the court) brief, the Foundation argues that in this case, despite the question of “reasonable suspicion” being a close one, Detective Fackrell believed he had met the requirement, and two courts agreed. There is no violation of the Fourth Amendment in this case that rises to the level that warrants the extreme remedy of suppressing evidence.

The Foundation suggests that rather than making good-faith exceptions to a general rule of exclusion the court should instead require a clear violation of law as an element of the exclusionary rule, such as when an officer knew or should have known that detaining and searching a suspect was unlawful but went ahead and did it anyway.

“Freeing known criminals despite clear, valid proof of guilt is a dirty business to be engaged in, if at all, only in circumstances that most clearly demand it,” said Foundation Legal Director Kent Scheidegger.

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.