In Harrowing Dissent, Justice Sotomayor Points to 'Degrading' Consequences of Unlawful Police Stops

Illustration for article titled In Harrowing Dissent, Justice Sotomayor Points to 'Degrading' Consequences of Unlawful Police Stops

Supreme Court Justice Sonia Sotomayor wrote an incredible dissent to the majority finding of an illegal stop-and-search case, a 5-3 decision which effectively undermined the exclusionary rule by finding that evidence discovered via unlawful police stops may be used in court if the officer knew of an outstanding arrest warrant before the illegal search. The ruling, according to Sotomayor, “implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”


The case, Utah v. Strieff, involved the illegal stop of Utah resident Edward Strieff back in 2006. According to the New York Times, an officer stopped Strieff after seeing him exit a house that was being monitored for drug activity; after running his identification through the system and finding a “small traffic warrant,” the officer arrested and searched Strieff, finding a bag of methamphetamine and drug paraphernalia.

The question for the court was whether this evidence was admissible, as the decision to stop Strieff was found to be illegal, i.e. not based in “reasonable, individual suspicion.”

A five-Justice majority, including liberal Justice Stephen Breyer, found that Strieff’s outstanding warrant made the evidence admissible; the majority opinion, written by Justice Clarence Thomas, stated that the stop amounted to “an isolated instance of negligence.” In an opinion echoed by the court’s other two women justices, Elena Kagan (who also penned a separate dissent) and Ruth Bader Ginsberg, Sotomayor wrote: “Respectfully, nothing about this case is isolated,” citing the 16,000 out of 20,000 Ferguson, Missouri residents with outstanding warrants against them (mostly for minor infractions like traffic violations).

By encouraging officers to conduct searches without adequate cause, Sotomayor wrote, “we give them reason to target pedestrians in an arbitrary manner.”

Citing Ta Nehisi Coates, W.E.B. DuBois, and James Baldwin, Sotomayor framed the decision in its obvious racial and socio-economic context—although this specific case involved a white defendant, the ruling’s implications land squarely at the feet of minority communities, already disproportionately targeted by the state and in desperate need of the constitutional protections of the exclusionary rule. “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,” she wrote.

The case, Sotomayor emphasized, “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.” Her description of the dehumanizing, degrading effect of these stops is worth reading (citations redacted for space):

The indignity of the stop is not limited to an officer telling you that you look like a criminal. The officer may next ask for your “consent” to inspect your bag or purse without telling you that you can decline. Regardless of your answer, he may order you to stand “helpless, perhaps facing a wall with [your] hands raised.” If the officer thinks you might be dangerous, he may then “frisk” you for weapons. This involves more than just a pat down. As onlookers pass by, the officer may “‘feel with sensitive fingers every portion of [your] body. A thorough search [may] be made of [your] arms and armpits, waistline and back, the groin and area about the testicles, and entire surface of the legs down to the feet.’”

The officer’s control over you does not end with the stop. If the officer chooses, he may handcuff you and take you to jail for doing nothing more than speeding, jaywalking, or “driving [your] pickup truck . . . with [your] 3-year-old son and 5-year-old daughter . . . without [your] seatbelt fastened.” At the jail, he can fingerprint you, swab DNA from the inside of your mouth, and force you to “shower with a delousing agent” while you “lift [your] tongue, hold out [your] arms, turn around, and lift [your] genitals.” Even if you are innocent, you will now join the 65 million Americans with an arrest record and experience the “civil death” of discrimination by employers, landlords, and whoever else conducts a background check.


Already, across the U.S., reports of illegal stops and seizures are numerous and often viscerally disturbing. For example, just last week, 18-year-old Ashley Cervantes filed a civil complaint after claiming she was subjected to an unconstitutional drug search by border agent, followed by a “forceful” and extensive cavity search by a male doctor. No drugs were found, and her parents were reportedly served with a $575 hospital bill.

There are endless lawsuits over similar searches. In April, a white South Carolina officer allegedly exposed a black woman’s breasts on the side of a populated highway while conducting an illegitimate search; officers appeared to extensively probe her companion’s hemorrhoids. In 2015, a Harris County, Texas officer pulled over a black woman for running a stop sign and, deciding he smelled marijuana, called two female officers to forcibly search the woman’s vagina, which likely could not have held the over four ounces that would have qualified for a felony charge. (No marijuana was found.)


Sotomayor’s dissent ends with a warning: “We must not pretend that the countless people who are routinely targeted by 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.”

Read Sotomayor’s full opinion here.

Correction: A previous version of this post mistakenly referred to an illegitimate search as taking place in North Carolina; the search occurred in South Carolina.


Image via Associated Press.

Ellie is a freelance writer and former senior writer at Jezebel. She is pursuing a master's degree in science journalism at Columbia University in the fall.


The Noble Renard

Sotomayor is, as always, wonderful, and one of the best writers on the Court. And Breyer yet again joins the conservatives on search and seizure issues, since he is more statist than the other three liberal members of the court (reflexively siding with the government isn’t a good thing for all issues).

This is one of those cases where I actually miss Scalia; he may have been able to convince one of the conservatives to switch sides.