The Fourth Amendment wasn't created to protect the guilty

The Libertarians are up in arms over yet another Supreme Court decision this week which involves the question of when police are allowed to use evidence of a crime in the prosecution of a suspect. In a five to three ruling which crossed the normal ideological battle lines of the SCOTUS justices, the court found in the case of Utah v. Strieff that evidence of a crime discovered during a traffic stop could be used if the suspect has an outstanding warrant for an unrelated offense. (New York Times)


The Supreme Court ruled on Monday that evidence found by police officers after illegal stops may be used in court if the officers conducted their searches after learning that the defendants had outstanding arrest warrants.

Justice Clarence Thomas, writing for the majority in the 5-to-3 decision, said such searches do not violate the Fourth Amendment when the warrant is valid and unconnected to the conduct that prompted the stop.

Justice Thomas’s opinion drew a fiery dissent from Justice Sonia Sotomayor, who said that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”

The protests against this decision are simply making my head spin. Read the linked decision for the full details, but the short version should be enough to get us started. The cops had received a tip that there was narcotics activity taking place at a certain house and they placed it under surveillance. An officer saw Edward Strieff leaving the residence and proceeded to pull him over, though he admitted that the stated reason for the stop was rather thin. Upon being detained and identified, it was discovered that Strieff had an outstanding warrant and he was searched, leading to the discovery of methamphetamines and drug paraphernalia. He was then arrested.

The complaint from the Libertarians is that the original reason for stopping him wasn’t good enough, so the fact that he already had a warrant shouldn’t have been considered and, of course, any evidence found during the subsequent search should be thrown out. My friend Doug Mataconis is up in arms over this, calling it a decision which stabs at the heart of the Fourth Amendment.


It’s hard to understate just how much damage the Court has done to the Fourth Amendment and its prohibitions against illegal searches and seizures. There is no question that the initial stop in this case was illegal because the officer in question lacked probable cause, or even reasonable suspicion, that a crime had been committed. That fact alone should be the end of the inquiry in and of itself, because an illegal stop is supposed to mean that anything discovered as a result of that stop is considered inadmissible against the Defendant. This is what has come to be known as the “exclusionary rule,” and while the perception among most lay people is that this rule is largely an invention of the Supreme Court during the era when Earl Warren served as Chief Justice, and there is some truth in that regard. In reality, though, there is a long history of rulings in both American and British Common Law of court’s ruling that illegally obtained evidence cannot be used at trial. It’s a rule that makes sense because it is, in reality, the only way that courts can send a signal to law enforcement that violations of the Fourth Amendment will not be tolerated and that there will be consequences for the violation of a Defendant’s Constitutional rights.

The responses from Justice Sotomayor in her dissent and from the Libertarians who are bemoaning the death of the Constitution are equally maddening, though for different reasons. First of all, reading through Sotomayor’s rationale is enough to call her motives into question. Rather than tackling the issue of Fruit of the Poisonous Tree (or however this one is being classified) she spends a fair portion of her response turning this into a racial question, though that apparently wasn’t even brought up in the dispute of the original case. The question of when police may perform a search and if the resulting evidence can be used in court, can and does apply to anyone. Yet she actually entered the following into the nation’s body of Supreme Court decisions.(Emphasis added)


“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.”

Did you catch the underlying message there?

An officer with a gun. (Every lethal force encounter between police and minority suspects)

No one can breathe. (“I can’t breathe” Eric Garner)

Until their voices matter. (Black Lives Matter)

This wasn’t a Supreme Court dissent. It was a series of excerpts from a Black Lives Matter diatribe in a case which wasn’t even addressing questions of profiling or any other related issue.

As to the actual legal questions we should have been tackling, I return yet again to what precisely it was that the Founders were trying to say when they established the Bill of Rights. They provided protections for the innocent against government officials using their massive power to bully and oppress them. The government can’t simply harass you and search you without probable cause to believe that you are breaking the law. They can’t quarter troops in your home. They’re supposed to leave you alone if there’s no reason to think that you are acting in a criminal fashion.


The cops weren’t surveilling that home because they were bored or had a grudge against Mr. Strieff or didn’t like the color of his skin. They were investigating a report of illegal drug activity. And oh, by the way… when they pulled Strieff over, he had illegal drugs on him. And while the warrant was from a totally unrelated incident, it was still a valid warrant. Doug argues that this could happen even in cases of a warrant that may well be inaccurately left open when it has in fact been satisfied. Even if we were to accept this premise in general, nobody seems to be arguing that the warrant on Strieff was invalid. He was already subject to arrest on that basis.

And the part of these arguments where Libertarians carp about evidence being found drives me further up the wall. Doug references, “law enforcement acting illegally and using whatever evidence they find however they wish.” Well… yes! Are we really to interpret the Fourth Amendment as meaning that law enforcement must ignore any and all evidence they find unless they already had reason to believe that such evidence would be found? If a cop pulls you over for a busted taillight, strolls up to issue you a ticket and, oh, by the way, notices that there’s a headless corpse in the back seat of your car, do prosecutors have to throw out the existence of the body at your murder trial because they weren’t expecting to find it?

This is madness. The Bill of Rights was created to protect the innocent from the unchained power of the government, not to act as some sort of carnival dodge which should allow the guilty to walk free.



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Jazz Shaw 8:31 AM on December 09, 2023