The Supremes erode the 4th Amendment

Everyone agrees that stopping Strieff was illegal. Everyone. Nonetheless, the police officer that stopped him... The Fourth Amendment of the Constitution prohibits unreasonable searches and seizures.

By Drew Stephens from San Mateo, CA - Searching the car, CC BY-SA 2.0,
By Drew Stephens from San Mateo, CA - Searching the car, CC BY-SA 2.0,

WASHINGTON, June 26, 2016 – Last week, the Supreme Court overturned a Utah Supreme Court criminal case, and in so doing threw another dart into the hide of the Fourth Amendment’s protection against search and seizure.

The case began in 2006, when Utah police, acting on an anonymous tip, began surveillance of a residence in the South Salt Lake area. The police believed that narcotics activity was taking place there. Edward Strieff came out of the house and the police stopped him without a warrant and, as later admitted, without any just cause.

Everyone agrees that stopping Strieff was illegal. Everyone.

Nonetheless, the police officer who stopped him ran a check and discovered a minor traffic violation warrant was outstanding against Strieff.

Streiff was arrested and searched, and a baggie containing methamphetamine and some drug paraphernalia was found. The evidence was allowed at the trial court, and Strieff was convicted. He appealed and the Utah Supreme Court threw out his conviction because, it said, the evidence was found and obtained after an illegal stop, so it was found illegally and could not be used.

Yes, we should arrest and convict and punish criminals. But we must do so legally, or else we become a police state and we all become targets. If the police acted legally, Streiff would have never been stopped, thus no search, no finding of his stuff, no arrest, no trial, no conviction.

Like it or not, that’s the law. Or it was.

The Fourth Amendment of the Constitution prohibits unreasonable searches and seizures and requires a warrant, approved beforehand by a judge or magistrate, before any search can take place or anything can be seized.

Here is the notable text of the amendment:

“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.”

There are notable exceptions to this well-established rule.

Consented-to searches, motor vehicle searches incident to a legitimate traffic stop where evidence is in plain view, exigent circumstances (where evidence could be lost if not taken immediately) and border searches make up the majority of these exceptions.

Never has the law allowed stopping people for no reason, searching them and then later using what was found against them. Until now.

Watch out, Americans of color. Beware particularly if you have any criminal charge, no matter how small or insignificant, outstanding against you. Watch out if you are not in this country legally.

The law of our land in every state, and in all federal courts, includes an evidentiary rule, called the Exclusionary Rule. It was established by the Supreme Court in interpreting the Fourth Amendment, in a case in 1914 called Weeks v. United States. The summary of the rule is that evidence obtained through a Fourth Amendment violation is generally inadmissible in a criminal trial. A phrase has come to be used describing such illegally obtained evidence — “fruit of the poisonous tree.” If the tree is no good, neither is what is on it.

Consider the Supreme Court’s reasoning, as reflected by Justice Thomas’s majority opinion: “There is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

So it appears the new standard is that police can act illegally, so long as their conduct is not flagrant?

Contrast the majority’s view with the dissent of Justice Sotomayor:

“This case tells everyone, white and black, guilty and innocent, that an Officer can verify your legal status at any time… it says that your body Is subject to invasion while courts excuse the violation of your rights.  It implies that you are not a citizen of democracy but the subject of a carceral state, just waiting to be catalogued.”


“The court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights… Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification and check it for outstanding traffic warrants — even if you are doing nothing wrong.

“If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant.”

Justice Sotomayor did not stop at simply dissenting. She set out in detail what she felt were the dangers and indignities that often accompany police stops:

“For generations,” she wrote, “black and brown parents have given their children ‘the talk’ — instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated,'” she wrote. “They are the canaries in the coal mine 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.”

The Supreme Court overturned Utah’s highest court. Utah ruled that the drug evidence could not be used against Strieff because the initial police stop was illegal. It was not supported by reasonable, individual suspicion against Strieff. The police officer did not know there was an outstanding warrant against Strieff when he stopped him. Nonetheless, Strieff was stopped, detained and searched, all illegally.

The exclusionary rule has been, or until now, was a rule that told police to behave when it comes to stopping and detaining people. It said to them that, if they act illegally, any evidence they find will not be able to be used. The rule was a deterrent to police from breaking the law to get evidence.

At the oral argument before the court, attorneys for Utah argued that the officer’s stop was a reasonable, good-faith mistake and that suppressing the evidence would harm society more than it would deter other officers from making similar mistakes.

Again, Justice Sotomayor: “This approach would give far too much latitude to law enforcement. What stops us from becoming a police state and just having the police stand on the corner and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”

Justice Kagan agreed: “The threat of this behavior is especially serious in lower-income communities where a majority of residents have outstanding warrants for minor infractions. If you’re policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase (police) incentive to make that stop.”

While the exclusionary rule may be frustrating for police, it is exactly what the framers of the Constitution intended: protecting people’s rights.



Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” can be instantly downloaded, for free, on his website:

Samakow has now also started a small business consulting firm. His new book “Step By Step, Achieve Small Business Success” is available at

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Paul Samakow
Attorney Paul Samakow brings his legal expertise and analysis from the trenches of the courtroom to Communities Digital News. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980 practicing in the DC metro area. Paul can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email @ [email protected], or through his website @ He is also available to speak to your group on numerous legal topics.