The Supreme Court will be back in action next week, and will hear a case about the future of the exclusionary rule when it hears the arguments of Utah v. Strieff on February 22nd. The specific question is whether evidence seized incident to arrest on a minor traffic warrant, discovered during a concededly unconstitutional detention, is inadmissible under the “attenuation” exception to the exclusionary rule.
Breaking the Chain of Events
Evidence seized after an illegal search or detention may be admitted under three exceptions to the exclusionary rule:
- (1) the independent source exception,
- (2) the inevitable discovery exception,
- and (3) the attenuation exception.
The attenuation exception applies where the police engaged in unlawful conduct, but the unlawful conduct was not the proximate cause by which the police obtained the evidence, because of an intervening circumstance breaking the causal chain. Under the attenuation exception, the intervening act is one that was made voluntarily by the defendant, such as a confession or consent to search given after illegal police action. The defendant’s voluntary act is sufficiently independent to break the legal connection to the primary violation, and therefor the evidence will not be excluded.
The Supreme Court and Free Will of the Defendant
All of the Supreme Court’s holdings on attenuation have emphasized that the intervening factor must be a voluntary act of free will by the defendant. The Court first discussed in Wong Sun, that an arrest might be admissible if it resulted from an intervening independent act of a free will on the defendant’s part. Then in Brown, the Court added that “the voluntariness of the statement is a threshold requirement”, a comment that confirms that the attenuation exception is continued to voluntary acts of the defendant in the aftermath of police misconduct.
After observing some traffic at a house in which was suspected of trafficking narcotics, Fackrell decided he would detain the next person he saw leaving the house. Fackrell detained Strieff and used Strieff’s identification to run a warrants check. The dispatcher that ran the warrants check found a minor traffic warrant, and Fackrell arrested Strieff. Fackrell searched Strieff and found methamphetamine and paraphernalia in Strieff’s pockets. The state district court determined that although the stop was unconstitutional Fackrell’s discovery of the warrant was an “intervening circumstance” and therefore the evidence was admissible. The Court of Appeals affirmed, then the Utah Supreme Court unanimously reversed.
Here, the intervening act was not a confession or consent to search, but the discovery of an outstanding warrant. The attenuation exception cannot reasonably be extended to the discovery of an outstanding warrant, as the defendant’s free will does not have any control over discovery of an outstanding warrant. There is no independent act by the defendant, as the police routinely run computer checks of people they detain. The discovery of a warrant is nothing like a confession, which is a product of the defendant’s free will. Because the intervening incident for Strieff was the discovery of an outstanding warrant, the Court should find that the evidence should be suppressed and that the intervening incident was not a product of Strieff’s free will.
Orin Kerr previews the argument in his Blog on the Scotus Blog. To learn more about new cases and updates to the Law follow me on Facebook.