Article

• Publication year: 2016
• Pages: 10
• Citation: Vol. 29 No. 3 Pg. 10

Article No. Vol. 29 No. 3 Pg. 10 Utah Bar Journal June, 2016

May, 2016

Utah at the United States Supreme Court Without Scalia

Andrea Garland, J.

Beginning at 1 a.m. on February 22, 2016, Remington "Jiro" Johnson from Salt Lake Legal Defender Association (LDA) walked laps around the United States Supreme Court to stay warm. It was the first day of oral arguments after Justice Antonin Scalia's passing. Tyler Green of the Utah Attorney General's Office and John Bash of the Department of Justice were scheduled to argue against Joan Watt of LDA in the case of State v. Strieff, 2015 UT 2, 357 P.3d 532, cert granted, 136 S. Ct. 27 (2015). Letting his colleagues sleep, Mr Johnson patrolled the Supreme Court's perimeter Around 2:30 a.m., he rounded the corner Right in front of him, a tour bus unloaded. Thirty-one lawyers from all over China, civil and corporate mostly plus two prosecutors, had stolen a march on the LDA, despite their having posted a scout. He texted: "A huge line just formed.. .Get to SCOTUS NOW."

It was a festive wait, although the temperature fell from around fifty degrees to around forty. Lawyers danced. Many from LDA sang / Can't Feel My Face when I'm With You, while the Chinese lawyers sang (presumably) Chinese pop tunes. Around 4 a.m., a mom and her two daughters, visiting Washington D.C. for the first time, got in line behind most of my LDA colleagues and me. The kids, about nine and ten years old, were extraordinarily stoic and good-natured. A Florida prosecutor, laden with luggage and on her way to the airport after oral arguments, lined up after them. They got in but not everyone did. More than one hundred people who weren't members of the Supreme Court Bar or guests of members waited hours to watch oral arguments on the central issue in Strieff, which was whether courts shall suppress evidence discovered in an arrest where the arrest warrant was discovered during an illegal stop.

ANDREA GARLAND is a trial attorney at Salt Lake Legal Defender Association.

Strieff arose from an anonymous tip. Having heard of narcotics activity at a South Salt Lake City house, Officer Doug Fackrell conducted surveillance for about three hours over the course of a week. He noticed short-stay traffic, consistent with narcotics activity. He hadn’t seen Edward Strieff enter the house but saw him leave and decided to stop him and ask what went on in the house. He ordered Mr. Strieff, on foot, to stop. Mr. Strieff stopped. He asked Mr. Strieff for his identification. Mr. Strieff provided identification. Officer Fackrell called in a warrants check, found an outstanding traffic warrant, and arrested Mr. Strieff for the warrant. He searched him, finding a baggie of methamphetamine and drug paraphernalia in Mr. Strieff’s pockets.

Mr. Strieff, charged with felony possession of methamphetamine and misdemeanor paraphernalia, asked the trial court to suppress the search that stemmed from the illegal stop. The trial court denied the motion, reasoning the officer had reasonable suspicion of drug activity going on at the house, and even if he lacked reasonable suspicion sufficient to stop Mr. Strieff, he made a good faith mistake concerning the necessary quantum of evidence. The Utah Court of Appeals agreed with the State of Utah. The Utah Supreme Court did not.

Reasoning from the exclusionary rule’s purpose to deter unreasonable searches and seizures, the Utah Supreme Court considered whether attenuation of the search from the illegal stop could purge the search of its unconstitutional taint. Considering the “temporal proximity” of the illegal stop to the evidence discovery, the “presence of intervening circumstances,” and...