This is where I have the problem as well. It seems to me that since LEOs have a few major advantages in that
They are considered the more reliable testifier in court which means their word outweighs that of the defendant (especially in traffic court where the mere fact that they issued the ticket is often “proof beyond a reasonable doubt” unless you can prove your innocence)
They can obfuscate, equivocate and outright lie. How many videos are out there where a citizen asks if they are free to go and the cop refuses to answer directly. Hell, they make up laws to get people to stop videoing them in public and will even illegally seize cameras based on made up laws.
The ignorance of the general populace on the law. If you are walking down the street and a cop asks for your identification, do you know what information in your jurisdiction you are obligated to provide?
With these advantages I have a real problem that when a cop screws up either accidentally or deliberately that it is treated like an oopsie-doopsie. I know Bricker will bring up again the idea of “flagrant” violation but to me there is no “flagrant” - the cops acted lawfully or they did not and if they don’t know the difference TFB for them. The decision should have been that he had no right to stop the defendant so everything after that is null and void as if everything after that act is fruit from the poisonous tree.
Interestingly, if the officer in question were willing to lie, and his testimony were accepted uncritically by the court, then the stop would have been found lawful; the officer would have fabricated legitimate probable cause.
But, didn’t the officer think that he had legitimate probable cause?
Obviously there’s some risk of lying in court, so he’s not going to lie in a case where he thinks he doesn’t need to. The fact that he didn’t do so in this case is very weak evidence against any of Saint Cad’s or my points.
By the time he spoke to the prosecutor, he probably became aware that he didn’t.
But I raise the spectre of the officer lying because you assert (or SaintCad asserted) that the police routinely lie, and I was inviting you to consider that if this were truly so, the decision here makes little difference.
I do think that it’s problematic that it’s so easy to manufacture probable cause after the fact, and I do think that there are systemic problems with the justice system and the police, but that doesn’t change the fact that establishing precedent that gives them more incentives to oops their way into a collar is really problematic. Would you care to respond to that point?
Do you think either of us is asserting that police always lie all the time? I think police are human, and most of them probably try to do the right thing most of the time. But a few of them are probably very bad people, and the rest are going to occasionally do the wrong thing out of expediency, or simply because they made an error. Which is why it’s so critical that their incentives are completely aligned against profiting from such error.
I also think there’s a toxic culture of covering for each others’ errors and illegal actions.
I think you have forgotten, or completely discounted, the reason for the exclusionary rule in the first place. Remember that the rule is not mentioned in the Constitution – it’s a judicially-derived rule that is intended to act as a prophylactic against police misconduct.
Here the only time in which the police are now “rewarded,” is if there is already a warrant out of the arrest of the person. Essentially, we are saying that you don’t have a right to expect to travel about freely with an active warrant – that when there is a warrant on you, you have already given the government probable cause to arrest you. You seem to frame this as a game, with the government having to concede every advantage to the accused. It’s not: the accused is already subject to arrest.
Now, if you believe that this ruling will result in a sharp upturn in unjustified Terry stops, then the proper cure is to strengthen the citizen’s ability to report and recover damages from unjustified Terry stops.
But I think we both know that this ruling will not meaningfully change the rate of Terry stops.
I didn’t specify in court but they do routinely lie to people under investigation or being interviewed. But if I do the same thing or make an honest mistake I am guilty of obstruction of justice.
As Sotomayor points out in her dissent, and as we’ve seen in places like Ferguson, the abundance of active warrants can be abused by the police. I’m not sure what you mean by framing this as a game. And I don’t think I’ve forgotten about the exclusionary rule, or its purpose. Its purpose is to remove the incentive for the police to do illegal things. Because of this decision, they’ll have greater incentive to do so. That sounds like a step in the wrong direction.
I’m not sure how large the effect will be, but I think you’re probably correct that this is a narrow enough decision that it will probably not have huge effects. Since we’re talking about magnitude of the effect, do you agree this is a step in the wrong direction, and we’re just arguing about how big a step?
And I don’t think that increased ability to recover damages is as good a solution as giving the police no incentive to do the wrong thing in the first place. Because the police intimidate and punish people who attempt to report police abuse. Here’s hidden camera video of people getting harassed, lied to, and threatened with arrest, when they try to make complaints. It’s a much better solution for the DA to tell the officer: “We’ll never get that evidence submitted after the illegal stop. Make all your stops by the book!”
This comment minimizes the fundamental meaning of an active arrest warrant.
An arrest warrant means that the named person is subject to immediate arrest by any law enforcement officer or conservator of the peace. The police can, at their discretion, start arresting everyone with such a warrant.
That’s not abuse.
No. Since I believe the existence of an active warrant attenuates the police error, I don’t see this as any step in any direction, but simply as an expression of the status quo ante.
In general, that is already the rule. Are you seriously thinking the police will gamble on the existence of an active warrant to retroactively justify their bad stops? Because the search here that found the contraband arose from the arrest of the warrant, not on the unjustified detention.
76% of residents have outstanding warrants. 76% of residents effectively no longer have any 4th Amendment protections based on this ruling.
And I bet those arrest warrants are strongly concentrated among the demographics who are regularly abused by the police. Perhaps it’s not really a gamble at all.
And the arrest of the warrant arose from the unjustified detention. It’s not like we have to limit ourselves to proximate cause here.
And besides, there’s ample evidence that the police regularly violate constitutional rights in their stops, even before they had the extra benefit of a two-fer when the sucker is carrying. You seem to think that the police are held well in check, and that I am arguing that this case is going to send them off the deep end into an orgy of unconstitutionality. But that’s not the case at all. The police are greatly favored in any interaction and have been getting away with systematic violations for decades, and this case is a further nudge toward giving them even greater power over people who struggle to pay their parking tickets. The system was rigged before, and it is slightly more rigged now.
I honestly think that we are better off as a society if some guys carrying drugs around get away with it because the police didn’t follow correct procedure than we are if police can retroactively justify and profit from an illegal stop based on what they discover in the course of the stop.
If the ruling had gone the other way, then it would have. It was enough of an open question for several lower courts to disagree, for SCOTUS to grant cert, and for several justices to dissent.
But, just to be clear, you’re saying that open warrants aren’t abused, even if they result in a great majority of citizens having no 4th Amendment rights, because the situation hasn’t changed? How is that relevant to the question of abuse? They were abused before this ruling, and they’ll be abused after this ruling.
Ha. There are plenty of issues on which a majority of public sentiment is opposed to the law as it is. The law and its interpretations are one of many ways in which society speaks, and they’re subject to error and correction like any other human process. I think this is a time where they got it wrong, and we’ll be better off if the law or the interpretation changes in the future. You don’t. I guess we’ve said what we’ll say on that.
Still curious if you’ve revised your position on my claim that police officers are a special class that is treated exceptionally lightly by the criminal justice system. You had a lot of bullet points showing how wrongheaded I was about that to just drop the topic entirely.
Just to clarify I am talking about Utah v. Strieff not the OP. And to your point society HAS spoken through the 4th Amendment where cops can’t just stop you for no reason.
I would also argue that society does NOT speak through a court that is not accountable to the people. You may argue whether that’s a bug or a feature but society does NOT favor taking people’s homes and giving their property to large megacorps in the name of eminent domain (Kelo).
Society does NOT want a system where cops can stop anyone for no reason and if you have a warrant out that makes the illegal stop OK (Strieff).
Society did NOT want us to lose our privileges or immunities (Slaughterhouse Cases).
Society did NOT want unfettered buying of elections by corporations (Citizens United).
Need I go on?