Supreme Court Slouches Toward The "Carceral State"

As fear and terror increasingly grip American society, the Supreme Court marches in lock-step with overzealous police tactics. Ensuring safety almost always means giving up liberty and privacy. The Court has invented so many technical rules to insulate unlawful police tactics from judicial scrutiny that police violations seem to be the rule, and sanctions the exception. It wasn't always that way. The Court early on believed that by excluding misbegotten evidence from a trial the police would be deterred from violating the Constitution The Court pays this rule lip-service, but no longer nourishes it. Indeed, the Court's decisions increasingly encourage police to violate the Fourth Amendment with impunity without facing any consequences, either personally, or with respect to the evidence seized.

Consider this week's decision in Utah v. Strieff in which a majority of the Court upheld an officer's deliberate violation of the defendant's constitutional guarantee against unreasonable police seizures. The officer arbitrarily detained Strieff without any legal basis. Then, after determining that Strieff had an outstanding traffic warrant, arrested him, searched him, and found drugs. The unlawful detention really didn't matter, according to Justice ClarenceThomas, because the existence of the traffic warrant somehow cleansed the officer's illegality, or in the Court's constitutional vernacular, attenuated the violation. In the Supreme Court's world of Fourth Amendment hocus pocus, there's usually a technical way to get around almost any constitutional violation.

For example, motorists are generally at the mercy of police. Police have the power to stop virtually every motorist for no individualized reason any time, any place. Roadblocks, security zones, and safety check-points are ubiquitous. The motorist is then subject to intensive questioning and sometimes searches. Moreover, the existence of hundreds of potential traffic infractions allows police to detain and even arrest motorists often for the most dubious traffic violation; police don't have to issue summonses if they don't want to. When a motorist is stopped, police use an assortment of techniques to search the motorist, his car and his belongings -- trained canine sniffers, consent searches, inventory searches and searches pursuant to the arrest for the innocuous traffic violation. This unparalleled police power has consistently been upheld by the Supreme Court, and consistently augmented.

People using public transportation also are at the mercy of police. Passengers can be questioned, and their belongings searched. If passengers don't want to answer questions or subject themselves or their bags to a search, they can be escorted off the carrier. Searches following a passenger's consent are commonplace, and if there is a dispute over whether the passenger actually consented, courts almost always defer to the officer's version. And the canines are frequently available, and quick to identify contraband. To be sure, post-Orlando society will notice a dramatic upsurge in interrogations, searches, and detentions. But the threat of terrorism, and the increased feeling of personal vulnerability, offers law enforcement increased opportunities for aggressive invasions of privacy, and increased justification for judicial toleration of these tactics, if not approval.

Forcible street encounters between police and civilians, typically without individualized suspicion, as illustrated by the Strieff case, have been denounced as an insidious example of police overreaching, without any official accountability. Once again, the Court's formulations of special doctrines to insulate police misconduct and protect the evidence is breathtaking. The list is very long: legal limits on the ability of an aggrieved citizen to sue; good faith exceptions; consent searches; inventory searches; emergency and exigency exceptions; and attenuation, as invoked in Strieff to save the unlawfully-acquired evidence.

Strieff is only the latest regrettable example of the Supreme Court's willingness to excuse police violations of rights. It might be of less renown if not for the remarkable dissent by Justice Sonia Sotomayor, whose essay on human rights may be a forecast of a Supreme Court of the future. Justice Sotomayor on the practical dimension of Strieff notes the stunning practical impact of the Court's decision; with 7.8 million outstanding warrants in the U.S., mostly for minor offenses, there is every reason to expect that police will be able to arbitrarily stop almost anyone, learn of an outstanding warrant, and then arrest and search. People of color, Justice Sotomayor notes, are disproportionately victimized by this type of scrutiny. "This case," she writes, "tells everyone, white and black, 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." She concludes: "No one can breathe in this atmosphere."