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Craig Mastantuono and Leah Thomas June 29, 2016

This week the US Supreme Court issued a decision changing search and seizure law in Utah v. Strieff.

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. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

— Justice Sotomayor, dissenting

And she doesn’t let up from there. Justice Sotomayor’s dissent is a gold mine of reason in a majority decision that leaves criminal justice practitioners terrified by the continuing erosion of the Fourth Amendment. The officer in that case had no legal basis to stop Strieff. Without the stop, he wouldn’t have learned there was a warrant for Strieff’s arrest. Without the arrest, he wouldn’t have found the methamphetamine or the paraphernalia to charge Strieff with a crime. It’s an all too common situation that is now condoned by our highest court.

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. But it is no secret that people of color are disproportionate victims of this type of scrutiny. For generations, 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.

By legitimizing the conduct that produces this double consciousness, 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 a democracy but the subject of a carceral state, just waiting to be cataloged. 

— Justice Sotomayor, dissenting

So what was Justice Sotomayor talking about? Here's an example:

We picked up a new case this week at M&C Law. Our client is a licensed carrying concealed weapon (CCW) holder who was a passenger in a car that police followed, stopped and searched in suburban MKE. Ultimately, the police accused our client of carrying his weapon when he had used marijuana in the previous 24 hours. That's the case. It's a misdemeanor.

However, here's how the traffic stop was initiated: from the reports, police say they were on patrol on a major street when their "attention was drawn to a maroon Chrysler." No reason, literally none, in the report for why their attention was drawn. Police pulled a U-turn, followed, and waited until the car stopped at a light where the officers noted that the front tires of the car were over the solid white line marking the crosswalk. Then, because the driver wasn't wearing his seat belt, they stopped the car and questioned everyone inside, including our client, leading to our client telling police he had a gun and a CCW permit which subjected him to further questioning, leading to the accusation that he was previously high. As you may have already guessed, all three men in the car were black, and we believe that's what "drew the officers' attention" to the car in the first place and made them follow, looking for the first ticky-tack violation they could find to justify a traffic stop. To police, three black guys in a car are often looked at as rolling suspicion, drawing their attention. Trust us, from our experience, three white guys in a car are just as likely to be smoking weed, or to have a gun or CCW permit as anyone else, including three black guys. They just don't get pulled over as much, and you don't need a law degree to figure that out.

So, we'll file our motion and challenge this stop as unreasonable. We'll question why the prosecutor didn't think this was wrong, why he didn't use his prosecutorial discretion and decline to charge this case, and maybe even talk with the officers about why they targeted these three men. We'll fight this, and we'll have to do it without constitutional air cover from higher courts releasing bad decisions like the one the US Supremes released this week.

Implicit racial bias can affect decisions at every step in the criminal justice system: who police suspect and follow, who they question, whose statements and explanations get listened to and whose don't, who gets warrant-checked or not, who gets charged or given a pass, who gets convicted and who gets a favorable plea deal, and in the end, who gets sent to jail and who gets sent home. When we excuse bias or go to pains to justify it, we excuse unequal treatment, we over-convict and over-incarcerate people of color, and we justify injustice. That's what Justice Sotomayor – who has seen it from the inside as a prosecutor – was talking about this week. And it plays out every day in thousands of cases and encounters like this one across America.

Or, to quote Justice Sotomayor, "We must not pretend the countless people who are routinely targeted by the police are 'isolated.' 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."

Well said, Justice. The fight continues.