Sonia Sotomayor pens powerful dissent in response to SCOTUS police search ruling

The Supreme Court empowered law enforcement officials this week with their ruling on 4th amendment case Utah v. Strieff. The conservative side of the Court swayed the ruling 5-3, but Justice Sotomayor’s dissent which hit on the racial issues of the case captured the internet’s attention. In her argument, she explains how this gives police even more power.

ICYMI, this ruling gives police the power to use against you anything they illegally obtained during the course of an unconstitutional search. In effect, police are even more incentivized to violate your 4th Amendment rights because there’s no longer any consequence for doing so.

This is terrifying and will affect marginalized persons the most. I’m sure this’ll be overturned when enough white people are caught in this web. Shameful. All worried about the 2nd amendment and have basically blown the 4th to smithereens. 4th>2nd.

WTF. The 4th amendment is essentially dead at this point if anyone can be stopped without probable cause and searched illegally…..THIS IS WHY WE NEED TO VOTE. SO THAT WE CAN ELECT A PRESIDENT WHO WILL PICK JUSTICES THAT WILL ROLL BACK THIS MASSIVE VIOLATION OF CIVIL RIGHTS.

I’ve known people from other countries who’ve immigrated here for economic reasons, and one of the things they’ve consistently said is that the United States is a police state about as terrifying as any out there.

I think I can better understand why they say that now.


as the only legal person I know, opinions?

Yeah, the Fourth Amendment exclusionary rule has been being chipped away at for a while.

Not monotonically! Rodriguez last year said that it still counts as an illegal stop if they’re unjustifiably extending a formerly legal stop (so the drug-sniffing dog can arrive). Which should be obvious, but this is what it takes to get a good decision these days.

The point of the exclusionary rule is to deter police misconduct. Judges invented it; it’s not in the Fourth Amendment. The rule is currently being swallowed by one of the exceptions—it doesn’t count as fruit of the poisonous tree if the discovery of evidence was sufficiently attenuated from the constitutional violation.

(An extreme hypothetical for illustration: the police beat me up and don’t Mirandize me, but I don’t confess to anything, then I come back a week later and say that yep, I killed the guy, BUT YOU SUCKERS CAN’T SAY SO IN COURT BECAUSE YOU WOULDN’T KNOW IF NOT FOR ALL THE TORTURING. Then they search my house and find the murder weapon. No judge is keeping that out, even though it’s totally true that they wouldn’t know if not for the illegal interrogation.)

Back in real life, the attenuation exception to the exclusionary rule gets a lot bigger. Streiff says that discovering an outstanding warrant is enough to break the chain.

Sotomayor’s opinion gets all the press, but Kagan’s less exciting dissent was about how this defeats the purpose of the exclusionary rule. It’s not like they could never have seen that coming so allowing the evidence in won’t encourage it. They knew this was likely to happen, hence the checking for outstanding warrants. So if we allow this, they have an incentive to stop random people just in case. The exclusionary rule is supposed to prevent incentivizing police to violate the Fourth Amendment.

Anyway, I doubt electing Clinton would help with this very much. Maybe it would.

But, the way to become a judge (and then Justice) goes through the prosecutor’s office. We do not appoint defense attorneys to the bench. Why not? Because presidents know that it’s even more skewed in states that elect their judges. 

We might get more Justices like Kagan, who can come from being Solicitor General where it is literally her job to argue that the United States government is always right and still dissent from cases like this. Or like Sotomayor, who…well, you read the quotes.

But more likely we get Justices like Merrick Garland. “Liberal,” to the extent that makes sense when talking about judges, nominated by certified Democrat Barack Obama…and to a first approximation he does not decide in favor of criminal defendants.

So yes, that article is a pretty accurate description of how bad things are. There still is an exclusionary rule; it’s being gradually chipped away at not overturned. And I’m not optimistic about this reversing.

The problem, while I’m not exactly wild about the exclusionary rule being swallowed by its exceptions, is that there’s not recourse OTHER than the exclusionary rule. 

Attenuation makes a certain amount of facial sense. But the problem is that exclusion of the fruits of the poison tree was literally the only remedy here (which, note, wouldn’t have been relevant even before this case if he was innocent in the first place). There’s no right without a remedy.

How did we get to this place where the only question about a stop that everyone admits is illegal is whether the police get a positive benefit? We seem to have lost the idea of actually deterring illegal stops.

I’m confused, is the police being able to stop you and demand id so uncommon in democratic countries? Why is this such a big deal?

If the police stopped me and asked for ID at any other point than when they feel they have reasonable suspicion of a crime, I’d feel like they were vastly overstepping their bounds. The very idea is offensive to me, the kind of thing that happens in foreign hellholes like Zambia, or America.

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