Yesterday, Justice Sonia Sotomayor issued a powerful dissent in the case of Utah v. Strieff. The full dissent is well worth reading and can be found with other court materials here.

The case centered around the 2006 arrest of Edward Strieff Jr. in Salt Lake City. As explained in the headnote for the Supreme Court’s decision:

Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity…After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff…He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals af- firmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

In a 5-3 decision, the Court overturned the Utah Supreme Court decision, with Justice Ruth Bader Ginsburg and Justice Elena Kagan also dissenting.

In the majority opinion, Justice Clarence Thomas explained:

To enforce the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” this Court has at times required courts to exclude evidence obtained by unconstitutional police conduct. But the Court has also held that, even when there is a Fourth Amendment viola- tion, this exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits…The question in this case is whether this attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest. We hold that the evidence the officer seized as part of the search incident to arrest is admissible because the officer’s discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.

On its face, this seems reasonable. Strieff was a criminal engaged in illicit activity. Perhaps, then, the officer was right to detain him and to initiate the chain of events which led to the discovery of evidence of Strife’s criminal behavior.

Justice Sotomayor, however, strongly disagreed:

It is tempting in a case like this, where illegal conduct by an officer uncovers illegal conduct by a civilian, to forgive the officer. After all, his instincts, although uncon­stitutional, were correct. But a basic principle lies at the heart of the Fourth Amendment: Two wrongs don’t make a right.

Because the officer did not search Strieff until after he learned of Strieff’s outstanding warrant, the majority opinion found the discovered evidence to be admissible; the search itself was entirely legal.

And perhaps stopping essentially random people, checking for a warrant, and then conducting further searches if needed, seems reasonable. Perhaps its better to inconvenience some people in order to catch criminals.

But, as Justice Sotomayor points out, this is an increasingly pervasive, institutionalized tactic:

Justice Department investigations across the country have illustrated how these astounding numbers of warrants can be used by police to stop people without cause. In a single year in New Orleans, officers “made nearly 60,000 arrests, of which about 20,000 were of people with outstanding traffic or misdemeanor warrants from neigh­ boring parishes for such infractions as unpaid tickets.”…In the St. Louis metropolitan area, officers “routinely” stop people—on the street, at bus stops, or even in court—for no reason other than “an of­ficer’s desire to check whether the subject had a municipal arrest warrant pending.”…In Newark, New Jersey, officers stopped 52,235 pedestrians within a 4-year period and ran warrant checks on 39,308 of them.

I do not doubt that most officers act in “good faith” and do not set out to break the law.…Many are the product of institutionalized training procedures. The New York City Police Depart­ment long trained officers to, in the words of a District Judge, “stop and question first, develop reasonable suspi­cion later.”…The Utah Supreme Court described as “‘rou­tine procedure’ or ‘common practice’” the decision of Salt Lake City police officers to run warrant checks on pedestrians they detained without reasonable suspicion.

There is something wrong with our justice system when police officers are trained to assume people are guilty until proven otherwise. Not only does this go against the heart of what our judicial system ought to stand for, it introduces – or extenuates – opportunities for systemic discrimination.

At the core of ‘citizenship’ is the idea that all people – regardless of legal status – have something of value to add to their communities. That their voices and perspectives matter. Allowing this random stopping of citizens paints an entirely different picture; that people must prove their right to be treated as full-fledged members of a community, that they may not be worthy of respect.

While many elements of the Utah v. Strieff case give weight to the Court’s majority finding, we ought to think long and hard about what kind of society we want to be and what kind of justice system we want to have. As Justice Sotomayor points out, this is the beginning of a very dark path, and – at the very least – we should know what we’re doing before we go down it.

Writing only for myself, and drawing on my professional experiences, I would add that unlawful “stops” have severe consequences much greater than the inconvenience sug­gested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.

Although many Americans have been stopped for speed­ing or jaywalking, few may realize how degrading a stop can be when the officer is looking for more. This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact…The officer does not even need to know which law you might have broken so long as he can later point to any possible infraction—even one that is minor, unrelated, or ambigu­ous.

The indignity of the stop is not limited to an officer telling you that you look like a criminal…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 fas­tend.”…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. And, of course, if you fail to pay bail or appear for court, a judge will issue a warrant to render you “arrestable on sight” in the future.

This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, supra, at 8, many inno­ cent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner…But it is no secret that people of color are disproportionate victims of this type of scrutiny. …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.

By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, 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.

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….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.

I dissent.