Less than three weeks after Hurricane Katrina plowed into New Orleans, George W. Bush’s Supreme Court nominee (current Chief Justice John Roberts) was asked, in the course of Senate hearings, to discuss his opinion concerning the power and role of judges. Roberts memorably responded that, in his view, judges were like umpires, or referees. Rather than legislating from the bench (making laws), judges, he said, should limit themselves to determining whether or not people or issues fell in or out of the bounds of the law. Willfully or not, Roberts ignored the intensive and extensive degree to which, in broadening and narrowing exceptions to the law, inter alia, judges do not merely call plays, but actively shape and reshape the law. Judges, however, are not alone in determining the law’s limits, or lack thereof. Judges and legislators are joined in their respective law-shaping practices by the enforcers of the law, the police, as well. Indeed, it is no secret that the police do not merely enforce the law as it exists on the books (as though there’s agreement concerning what the law on the books even is).
Often confused, contemptuous, or simply cynical about the laws they are employed to enforce, police regularly wind up, intentionally and unintentionally, enforcing distortions of the law. And, not unlike the acts and decisions of dictators, the unlawful acts and decisions of the police often become law. If and when the arbitrary re-positioning of the goal posts and boundary lines of the law that constitutes much of police work is challenged in the courts, judges can condemn these transgressions as violative of the law, reinforcing the pre-altered boundary line. Judges also, often, approve of challenged police acts as being necessary to the contemporary demands of policing, inspissating this repositioning of the boundary line of the law.
In overturning the holding of the Utah Supreme Court, and approving of Utah detective Douglas Fackrell’s illegal stop, in Utah v Strieff the US Supreme Court limited the Fourth Amendment of the US Constitution. Expanding the power of police throughout the country, and narrowing the right of everyday people to be free from unreasonable searches and seizures, the Court redrew the parameters of the law in a manner that has grievous implications.
Prior to this week’s decision, in order to legally stop and ask a person to see her or his identification, and search for warrants, police needed a “reasonable suspicion” that that person was involved in criminal activity. Now, however, the law is different. As Justice Sotomayor wrote in her highly praised dissent: “This case allows the police to stop you on the street, demand your identification, and check it for outstanding warrants – even if you are doing nothing wrong.”
The facts in Strieff are straightforward enough. South Salt Lake City narcotics detective Fackrell was surveilling a residence (that an anonymous tipster suggested was involved in drug sales) when Fackrell saw Edward Strieff leave the building. Although he lacked reasonable suspicion, and the state concedes this, Fackrell stopped Strieff and asked to see his identification. None, including Clarence Thomas, who wrote the majority opinion, dispute the conclusion that the stop was conducted illegally. In the course of this illegal stop, Fackrell conducted a warrant search on Strieff, discovered a traffic warrant, and arrested him. Searching Strieff, Fackrell discovered contraband. The issue before the Court was whether the contraband, discovered in the course of an illegal stop, should be excluded from the evidence, in conformity with the “fruit of the poisonous tree” doctrine that evidence discovered in the course of an illegal search should be excluded.
Before it arrived before the US Supreme Court, the case was decided by the Utah Supreme Court. Honoring longstanding legal precedent, the Utah Supreme Court held that, since the stop was illegal, all evidence that derived from it was “poison fruit,” and should be excluded. The US Supreme Court, however, reversed the Utah Supreme Court. Arguing that the case meets an exception to the fruit of the poisonous tree doctrine, the majority held that the discovery of the traffic warrant (though a necessary link connecting the illegal stop to the contraband-yielding search) sufficiently attenuated, or separated, the illegal investigatory stop from the evidence, rendering the latter admissible. Not only did the Utah Supreme Court err in excluding the illegally discovered evidence, the majority held; the US Supreme Court also held that Fackrell’s discovery of the warrant retroactively nullified the illegality of the initial stop as well. If this sounds highly illogical, that’s because it is. As Sotomayor summarized the new law in her dissent: “This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.”
Among the interesting details of the Supreme Court’s holding in Strieff is that the post-Scalia Court’s four conservatives (that peculiar variety of conservative whose professed respect for small government, states’ rights, and legal precedent is time and again shunted aside in favor of the aggrandizement of the police, military, and business) were joined by Steven Breyer. Had he sided with the Court’s liberal wing, as he typically does, the result would have been a 4-4 tie, and no change to the Fourth Amendment would have resulted. But this was not to be. A Clinton appointee, Breyer sided with Thomas, Alito, Kennedy, and Roberts, illustrating the degree to which, nearly 16 years after leaving the White House, Clinton’s destructive legacy (which includes NAFTA and the gutting of the working class, financial deregulation, his poverty-exacerbating welfare reform, as well as his 1994 Violent Crime Control and Law Enforcement Act, which implemented mandatory minimum sentences, along with the expansion of prisons, and death penalty enhancement, among other ongoing harms) continues to reverberate.
Green lighting arbitrary police harassment, Strieff poses disturbing implications on multiple levels. Among the most troubling of these is the Strieff ruling’s relation to immigration law, its “show your papers” implications removing nearly all foreseeable obstacles to the legalization of “ethnic cleansing” via federal forms of racist laws like Arizona’s notorious SB 1070. Opening the door widely to unaccountable racial profiling, the Fourth Amendment-squelching precedent in Strieff could easily allow such laws to spread across the territory – a term that, many argue, derives from the Latin territorium – described by the ancient Roman geographer Pomponius (in the Digest of Justinian) as “the sum of the lands within the boundaries of a community [civitatis]; which some say is so named because the magistrate of a place has the right of terrifying [terrendi], that is exercising jurisdiction, within its boundaries.”
With Strieff, the Court has redrawn these boundaries, right into people’s bodies, allowing the police (only the most visible administrators of the global territorium) to arbitrarily demand a person’s papers in a manner that, until last week, wasn’t regarded as characteristic of a police state so much as it was regarded as emblematic of a caricature of one.