Strieff: An Active Arrest Warrant for an Unpaid Traffic Ticket Makes You Vulnerable to an Illegal Search and Seizure

WARNING: The Fourth Amendment to the United States Constitution protects you against unreasonable searches and seizures by the police. If the police stop you without reasonable suspicion and find evidence of illegal activity, the exclusionary rule prevents the State from using the illegally obtained evidence against you in a criminal prosecution. The rule operates as a remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect. However, after Utah v. Strieff, 14-1373, 2016 WL 3369419 (June 20, 2016), the exclusionary rule may have a more limited application if you are stopped by the police and you have an arrest warrant from another case pending at the time of the stop. According the Court, if you have an active warrant for let’s say an unpaid traffic ticket, any illegally obtained evidence the police find may be admissible against you in court.

In Utah v. Strieff a Salt Lake City Police Officer investigated an anonymous tip of illegal drug activity at a drug house. Over the course of about a week, the Officer conducted intermittent surveillance of the home. He observed visitors who left a few minutes after arriving at the house. These visits were sufficiently frequent to raise his suspicion that the occupants were dealing drugs.

The Officer observed Edward Strieff leave the house and walk toward a nearby convenience store. In the store’s parking lot, the Officer stopped Strieff, identified himself, and asked Strieff what he was doing at the residence. At the Officer’s request Strieff produced his identification card and the Officer relayed Strieff’s information to a police dispatcher. Strieff had an outstanding arrest warrant for a traffic violation. The Officer then arrested Strieff pursuant to that unpaid traffic ticket warrant and searched Strieff incident to the arrest. The search revealed a baggie of methamphetamine and drug paraphernalia. Nothing about the facts suggests that Strieff gave consent for the search. The discovery of illegal drugs occurred only minutes after the illegal stop.

Under these facts, the Court determined that the Officer’s unlawful stop and his discovery of drug-related evidence on Strieff’s person was sufficiently attenuated by the discovery of an active arrest warrant.

The Court relied on a three factor balancing test for its decision to admit the evidence. First, the Court looked to the “temporal proximity” between the unconstitutional conduct and the discovery of evidence to determine how closely the discovery of evidence followed the unconstitutional search. The majority agreed that the discovery of the evidence and the discovery of the warrant were close in time and that this factor weighed in favor of suppressing the evidence.

Second, the Court considered “the presence of intervening circumstances” namely, the discovery of the active arrest warrant. Here, the Court found that the active warrant was an intervening circumstance that strongly favored the State. The warrant predated the drug house investigation and was entirely unconnected with the stop. The Court decided that the warrant authorized the Officer to arrest Strieff, and once the arrest was authorized, his search of Strieff incident to that arrest was lawful.

Third, the Court examined “the purpose and flagrancy of the official misconduct.” According to the majority, the third factor favors exclusion only when the police misconduct is most in need of deterrence—that is, when the police misconduct is purposeful or flagrant. The Court found this factor to be “particularly” significant and strongly favored the State.

In arriving at its conclusion, the Court found the Officer’s conduct not Flagrant or purposeful but at most “negligent.” In the court’s words, the officer made “two good-faith mistakes.” His first mistake was that he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. The Officer thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have engaged in a drug transaction. The Court did not elaborate nor explain how documenting the length of time of the visit would change the analysis. Presumably the shorter the visit the more likely it would be that Stieff was a drug user. A longer visit might suggest an absence of nefarious activities. Nor does the Court explain how the outcome might have been different had Streiff offered an innocent explanation for why he was at the residence perhaps for instance if he were a resident. The officer’s second mistake according to the Court was demanding rather than requesting that Strieff speak with him. The Court held that these good-faith mistakes were “errors in judgment” and “hardly rise to a purposeful or flagrant violation of Strieff’s Fourth Amendment rights.”

Looking to Strieff for guidance as to what constitutes purposeful and flagrant misconduct can be elusive. Defense counsel, prosecutors, and the trial courts may well have to guess as to the meaning of these terms when applying this new decision. As a preliminary matter, the Court succinctly stated that “the mere absence of proper cause for the seizure” is not sufficient to establish purposeful and flagrant misconduct. Stieff goes on to give two examples of what might satisfy the standard. The first example is from Kaupp v. Texas, 538 U.S. 626, 628, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (per curiam ) (finding a flagrant violation where a warrantless arrest was made in the arrestee’s home after police were denied a warrant and at least some officers knew they lacked probable cause). On its facts, Kaupp is an extreme example that does not apply to pedestrians similarly found in Strieff’s position who are walking down the street and not in their own home. Moreover, the arrest warrant for Strieff had issued before the stop and was not denied as in Kaupp. Finally, unlike the facts in Kaupp, and more typically like the facts in Strieff, no other officers neither knowing or otherwise were involved in Strieff’s arrest. Indeed, if Kaupp were the standard for flagrancy and purposefulness, no pedestrian could ever rely on constitutional protections against unreasonable searches and seizures.

Coming at the question more obliquely, the Court gave another example of what might constitute purposeful and flagrant police misconduct when it discussed “dragnet searches” — where the police subject unlimited numbers of innocent persons to the harassment incident to involuntary detention. The Court stated that: “If the police were to engage in unlawful stops as part of ‘systemic or recurrent police’ practices such behavior might rise to the level of purposeful and flagrant misconduct.” The Court stated: “Were evidence of a dragnet search presented here, the application of the Brown [v. Illinois] factors could be different.”

Proving systemic or recurrent police misconduct places a difficult burden on the defense. As the dissent noted, “it should not take a federal investigation … before the Court would protect someone in Strieff’s position.” To show systemic or recurrent police misconduct would require defense counsel to show a widespread pattern of misconduct by a particular officer or police department. The burden of proof would be placed presumably on the defendant and Prosecutors would no doubt argue to exclude any pattern evidence since the conduct of other officers or the police department at large is a collateral matter and is not relevant to the facts of any one defendant’s case.

The Court rejected the argument that the police will take Strieff as an invitation to conduct illegal searches because such wanton conduct would expose police to civil liability. The Court’s thinking on this must be that such lawsuits would presumably be a sufficiently fearsome deterrent that the police would not consider making such a mistake before committing an illegal search . The court’s belief however is misplaced. The vast majority of criminal defendants who are subjected to illegal arrests are ill equipped to bring civil lawsuits against the local police department. Indeed in a recent 5th Circuit opinion, the appellate court reiterated that an officer has qualified immunity from civil rights liability if a grand jury determines that the arrest might have been based on probable cause – no matter what happened at the original arrest. See Buehler v. City of Austin/Austin Police Dep’t, 15-50155, 2016 WL 3085528, at *1 (5th Cir. June 1, 2016). The 5th Circuit stated

[E]ven an officer who acted with malice … will not be liable if the facts supporting the warrant or indictment are put before an impartial intermediary such as a magistrate or a grand jury, for that intermediary’s ‘independent’ decision ‘breaks the causal chain’ and insulates the initiating party. Our precedents have applied this rule even if the independent intermediary’s action occurred after the arrest and even if the arrestee was never convicted of any crime.

Id. at *3.

We may not know the full impact of Strieff for many years but in the meantime, it makes good sense to take care of any outstanding warrants you may have.