BLACK AND POOR: THE GRAVE CONSEQUENCES OF UTAH V. STRIEFF.

• Author: Wood, Chanae L.

INTRODUCTION

Suppose a nineteen-year-old Black male, Jason, decides to watch a late night movie with friends. (2) The group of friends meet on the corner outside of the local convenience store. (3) However, Jason arrives early. (4) Out of habit, he paces back and forth, as he waits for the others to arrive. (5) Two police officers, patrolling the area for drug activity, notice Jason and find his pacing suspicious. (6) The officers approach Jason and proceed to unlawfully stop (7) him. (8) The officers ask him where he is headed and why he is out so late. (9) Jason tells them that he is going to the movies. (10) The officers ask for Jason's identification, and he cooperates with them. (11) However, after running his information through their database, the officers learn that Jason has an outstanding arrest warrant (12) for an unpaid traffic ticket. (13) The officers arrest Jason and proceed to lawfully (14) search him. (15) In doing so, they discover two grams of marijuana. (16) The State, eventually, charges Jason with unlawful possession of marijuana. (17) Jason seeks to suppress the evidence, claiming that the officers illegally stopped him. (18) However, is Jason's arrest warrant for an unpaid traffic violation a sufficient event that purges "the taint of the illegal stop?" (19)

Previously, appellate courts (20) were led to different conclusions on whether the marijuana would be admissible as evidence, resulting in a circuit split. (21) The United States Supreme Court addressed this dispute among lower courts, giving a resounding answer in its recent decision, Utah v. Strieff, (22) deciding that an arrest warrant is an attenuating (23) circumstance. (24) As such, the forbidden "fruit of the poisonous tree" (25) now has the Court's stamp of approval. (26)

Strieff establishes that Jason and others who are similarly situated are no longer shielded from unlawful searches (27) by the exclusionary rule. (28) Thus, the proposition that the exclusionary rule serves as a remedy (29) for Fourth Amendment (30) violations has been weakened. (31) This has been achieved by the Supreme Court's continued creation of exceptions (32) and rulings that undermine the exclusionary rule's purpose. (33) Accordingly, Strieff serves to chip away at Fourth Amendment rights yet again. (34) While this ruling applies to all U.S citizens, the law will most likely have a disparate impact on Blacks (35) and lower socioeconomic citizens (36) in particular. (37)

Justice Sonia Sotomayor's dissent in Strieff sheds light on the disparities that exist within these minority communities, and the effect the law will have on these citizens. (38) Yet, Justice Sotomayor leaves one question unanswered. (39) What should an officer do once he or she discovers that the questioned individual has an outstanding arrest warrant? (40)

This Comment brings reconciliation between the majority and minority opinions in Strieff by proposing a solution that will uphold Fourth Amendment rights and public safety. (41) Part II explores the Fourth Amendment by tracing the origins of the exclusionary rule, and then discusses the Court's first step in undermining constitutional rights in Terry v. Ohio. (42) Part III discusses the Court's trend of weakening Fourth Amendment rights and provides an in-depth analysis of the impact its most recent Fourth Amendment ruling, Strieff, will have on Blacks and lower socioeconomic citizens. (43) Part IV provides a comprehensive solution, suggesting a warrant hierarchy system that will alleviate the disparate impact that Strieff will cause. (44) Part V concludes by explaining that the Court has weakened the exclusionary rule, and should adopt the warrant hierarchy system in order to curb the grave effects of Strieff. (45)

2. BACKGROUND

   1. THE FOURTH AMENDMENT

      In its simplest form, the Fourth Amendment effectuates the right to be protected from unreasonable searches and seizures. (46) Even a temporary detainment of a driver during a traffic stop or a pedestrian for questioning will fall within the Fourth Amendment's meaning of "seizure." (47) While the Fourth Amendment is praised for its protection of individual rights, it is also criticized for its vagueness. (48)

      The Fourth Amendment leaves two questions unanswered: (1) what is considered "reasonable," and (2) what remedy is available for Fourth Amendment violations. (49) The Supreme Court is, thus, tasked with creating rules and tests (50) that not only enforce the Fourth Amendment, but also prevent its violations. (51) In a preventive effort, the Court established the exclusionary rule. (52)

   2. ORIGINS OF THE EXCLUSIONARY RULE AND ITS JUSTIFICATIONS

      Historically, the Court has been cautious in regulating government searches and seizures. (53) In fact, it was not until the twentieth century in Weeks v. United States (54) that the Court took a stance on government Fourth Amendment violations. (55) In Weeks, the Court unanimously established that the use of illegally seized evidence would directly contradict the Constitution. (56) Accordingly, this declaration marks the beginning of the exclusionary rule. (57)

      It was nearly fifty years later, in Mapp v. Ohio, (58) when the Court took another turn in Fourth Amendment jurisprudence. (59) The Court not only expanded the exclusionary rule to the states, but also pronounced three justifications for the application of the rule: constitutional privilege, (60) judicial integrity, (61) and deterrence. (62) Particularly, deterrence has been attributed to the exclusionary rule's necessity, (63) despite critics' disparagement. (64) By implementing adverse consequences for violations of Fourth Amendment rights, police officers will be dissuaded from engaging in such misconduct in the future. (65)

   3. THE ROOT OF ALL EVIL: TERRY V. OHIO

      Prior to 1968, the Court upheld citizens' privacy interests by requiring that officers provide a substantial showing of probable cause (66) or a warrant to justify searches and seizures. (67) However, in a groundbreaking decision, the Supreme Court in Terry v. Ohio (68) introduced the "reasonable suspicion" (69) standard. (70) Terry grants police officers the authority to "stop and frisk" (71) citizens based on their suspicion, provided that the encounter is brief. (72) Considering the political climate, (73) the Court introduced a balancing test to justify its ruling. (74)

      The Court considered the interests of police officers' safety and effective crime prevention as well as citizens' interest in privacy and security. (75) Based on officers' need of protection and the limited nature of the stop and seizure, the Court granted officers the power to search and seize citizens by showing less than probable cause. (76) Critics have categorized Terry as the Court's "first step toward the slow erosion of Fourth Amendment rights[;]" the root of all evil. (77)

3. ARGUMENT

   1. TREND OF GRAVE EFFECTS ON FOURTH AMENDMENT RIGHTS

      If Terry is the first step in the demise of Fourth Amendment rights, then Strieff signals the last days are near. (78) Predictably, Strieff's ruling follows a series of Supreme Court decisions, including Whren v. United States (79) and Atwater v. City of Lago Vista, (80) which narrow the definition of illegal police conduct and broaden police discretion. (81)

      As seen in Whren, if a police officer has probable cause to make a traffic stop, then the stop is justified regardless of the officer's subjective intentions for stopping the motorist. (82) Thus, the Court's unanimous (83) decision puts a stamp of approval on racial profiling. (84) The Court makes it clear that an officer's pre-textual reason for stopping a motorist, such as race or gender, has no bearing on a Fourth Amendment probable cause analysis. (85) Therefore, Whren gives new meaning to what is reasonable behavior by law enforcement. (86) Likewise, the Court's ruling in Atwater provides for a similar redefining of police discretion. (87)

      In Atwater, the Court held that the Fourth Amendment has no limitations on a police officer's discretion to make custodial arrests, (88) even for minor infractions. (89) As opposed to issuing a citation for misdemeanors, officers are given a vast range of discretion to make unnecessary arrests. (90) Accordingly, Atwater carries substantial potential for abuse. (91) Officers are empowered by the Court's ruling to arrest individuals for minor traffic offenses in order to investigate more serious crimes, of which they lack the legal basis to do so. (92)

      At first glance, both Whren and Atwater appear to be uncontroversial by stating clear and concise rules. (93) However, after an in-depth view, it becomes clear that these decisions have grave effects on Fourth Amendment rights. (94) Now, the Court's recent decision in Strieff leads to the same conclusion. (95) In Strieff's dissenting opinion, Justice Sotomayor states that anyone's body is "subject to invasion while courts excuse the violation of... rights." (96) Consequently, Blacks and lower socioeconomic individuals will be gravely affected. (97)

   2. UTAH V. STRIEFF PRESENTS A LOOPHOOLE AROUND FOURTH AMENDMENT RIGHTS

      1. Nationwide Attention to Police and Civilian Encounters

         With millions fastened to their television screens, hip hop artist Kendrick Lamar graced the 2016 Grammy stage with his controversial record, "Alright." (98) Lamar, accompanied by mock-inmates, African dancers and drummers, and a massive blazing bonfire, provided a powerful message to viewers of the current state of Black America. (99)

         When you know, we been hurt, been down before, nigga When our pride was low, lookin' at the world like, "where do we go, nigga?" And we hate Popo, (100) wanna kill us dead in the street for sure, nigga (101) With protests and demonstrations sweeping across the nation, Kendrick Lamar is just one of the many artists, (102) activists, (103) and every day citizens (104) who have been outraged by the current state of police interactions with Black...