The Chiseling Away of the Fourth Amendment Continues: NMA E-Newsletter #389

The Fourth Amendment of the U.S. Constitution provides “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Pretty straight forward really—the Fourth Amendment protects a citizen’s right to privacy and freedom from arbitrary governmental intrusions. This week however, the Fourth Amendment took another blow by none other than the US Supreme Court. In a 5 to 3 decision in UTAH vs. STRIEFF, the dissenting opinions were a scathing rebuke of current police practices. Click here to see the entire decision – the two dissent opinions begin on page 14)

Essentially, this case focused on whether or not a law enforcement officer can stop someone on the street without probable cause, ask for an ID, run a warrant check and arrest that person due to an outstanding warrant, then search the person to attempt to find evidence of a different crime.  ‘Someone’ could be a motorist, a bicyclist, or a pedestrian.

Let’s face it, stopping people on the street by police generally does not happen often in middle class communities. It is a more common action in communities where crime is high and where outstanding warrants are just as likely for people who cannot pay for outstanding traffic tickets and other court fees.

One of the reasons that the Supreme Court majority ruled in favor of the state of Utah had to do with what they thought was ‘an isolated incident’ and ‘good faith mistakes’ by the officer who, pretty much everyone agreed, stopped Strieff illegally because there was no reasonable suspicion to do so.

But in reality as both the two dissenting authors Justices Sotomayor and Ginsberg pointed out this was indeed not an isolated or good faith detention of a citizen.

Justice Sotomayor wrote in her eloquent dissent that the Utah Supreme Court described that it is common practice for Salt Lake City police officers to run warrant checks on pedestrians who are detained without reasonable suspicion. She wrote that in the related context of traffic stops, one widely followed police manual instructs officers looking for drugs to “run at least a warrant check on all drivers stopped.” Justice Sotomayor added that statistically speaking, narcotics offenders are more likely to fail to appear on simple citations which include traffic violations. This leads to the issuance of bench warrants.  When police discover an outstanding warrant during a routine stop, the police officer can arrest and then search the now suspect.

Outstanding warrants are surprisingly common. The number of actual outstanding warrants and the police procedures that Justices Sotomayor and Ginsberg address in both of their dissents is shocking:

  • The States and Federal Government maintain databases with over 7.8 million outstanding warrants, with the vast majority appearing to be for minor offenses.
  • Ferguson, MO with a population of 21,000 has 16,000 people with outstanding warrants
  • New Orleans police in a single year made nearly 60,000 arrests with about one third of those arrested having outstanding traffic or misdemeanor warrants from neighboring parishes for such violations as unpaid tickets.
  • In the St. Louis metro area, law enforcement officers make it a regular practice of stopping people on the street for no reason other than to check to see if the person had a municipal arrest warrant pending.
  • Within a four year period in Newark, NJ, officers stopped 52,235 pedestrians and ran warrant checks on 39,308 of them. The Justice Department analyzed these stops and reported that 93% would have been unsupported by reasonable suspicion.
  • In NYC, officers are trained to stop and question first, develop reasonable suspicion later. With a population of 8.4 million people, NYC currently has 1.2 million outstanding warrants.
  • California has 2.5 million outstanding arrest warrants which corresponds to about 9% of its adult population.
  • Pennsylvania with a population of about 12.8 million has 1.4 million warrants for its citizens.

In a more personal statement in her dissent to UTAH vs. STRIEFF, Justice Sotomayor drew a link to racial inequity that pervades the criminal justice system. “It is no secret that people of color are disproportionate victims of this type of scrutiny.”  She added, “We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’  They are the canaries in the coal mines whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.  They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives.  Until their voices matter too, our justice system will continue to be anything but.”

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