Kagan saw things differently. “Far from a Barney Fife-type mishap, Fackrell’s seizure of Strieff was a calculated decision, taken with so little justification that the State has never tried to defend its legality,” she wrote.
In her separate dissent, Sotomayor also denounced the majority’s ruling for misapplying the Court’s precedents on curbing unlawful searches.
“To the Court, the fact that a warrant gives an officer cause to arrest a person severs the connection between illegal policing and the resulting discovery of evidence,” she wrote. “This is a remarkable proposition: The mere existence of a warrant not only gives an officer legal cause to arrest and search a person, it also forgives an officer who, with no knowledge of the warrant at all, unlawfully stops that person on a whim or hunch.”
Citing federal civil-rights investigations like the Ferguson Report, she also pointed out how some police departments conduct otherwise unlawful searches under the guise of checking for outstanding arrest warrants. At least 7.8 million Americans have active warrants against them, she added, often for minor crimes.
“The majority does not suggest what makes this case ‘isolated’ from these and countless other examples,” she wrote. “Nor does it offer guidance for how a defendant can prove that his arrest was the result of ‘widespread’ misconduct. Surely it should not take a federal investigation of Salt Lake County before the Court would protect someone in Strieff ’s position.”
In one sense, her opposition to the ruling is unsurprising. Sotomayor has repeatedly voiced her concerns about weakening the Fourth Amendment’s protections. But Monday’s dissent is also extraordinary for its breadth and intensity, especially in the last of its four sections.
“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,” she wrote. Sotomayor then went on to detail how personally degrading a police search can be, shifting her literary style to address the reader directly. (I’ve removed the citations for ease of reading.)
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. That justification must provide specific reasons why the officer suspected you were breaking the law, but it may factor in your ethnicity, where you live, what you were wearing, and how you behaved. 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. 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.’”
“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,” she noted, citing academic works by criminal-justice scholars Gabriel Chin and James Jacobs.