Case Watch: Justice Sotomayor Highlights Impact of Biased Policing

United States Supreme Court Justice Sonia Sotomayor’s recent dissenting opinion in the case of Utah v. Strieff, delivered on June 20, makes for remarkable reading—particularly given the troubled state of relations between the police and African American communities across the country.

The case centered on an encounter in South Salt Lake City between a man named Edward Strieff and a local police detective, Douglas Fackrell. After leaving a suspicious residence, Strieff was stopped by the detective. Detective Fackrell ran a warrant check on Strieff and searched his person. Strieff was found to be in possession of methamphetamine and drug paraphernalia.

Sotomayor’s dissent broke form by addressing not just the legal community, but the American public: “Do not be soothed by the opinion’s technical language,” she states at the beginning. “This case 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.”

In particular, Sotomayor warned that the court’s ruling chips away at a remedy available to victims of unconstitutional police stops. This remedy, known as the exclusionary rule, allows defendants in criminal cases to suppress evidence gathered through a search or seizure conducted in violation of the Fourth Amendment. However, there are many exceptions to this rule, and these exceptions have multiplied with a more general erosion of citizens’ Fourth Amendment rights since the late 1960s. The ruling in Strieff makes it more likely that the exclusionary rule will not be applied to evidence gathered from a police stop of an individual with an outstanding warrant.

Strieff is not a case about ethnic profiling, per se. The defendant was a white man who did not make an accusation that he was racially profiled. But Sotomayor highlighted the link between the court’s rollback of Fourth Amendment protections and the wider reality of policing in the United States as it experienced by people of color.

To set the ruling in a broader context, she cites Michelle Alexander’s book The New Jim Crow, and Ta-Nehisi Coates’s memoir Between the World and Me, both widely read accounts of the scope and toll of racism in the American criminal justice system. She also draws on the Department of Justice’s scathingly critical 2015 report on the police department in Ferguson, Missouri, to show the extent to which the police can use the possibility of an outstanding warrant to carry out stops.

Sotomayor also notes that a series of Supreme Court decisions allows the police to use your ethnicity, where you live, and what you wear as factors to justify a stop. In United States v. Brignoni-Ponce, for instance, in 1975, the court decided that, while ethnicity could not be the sole basis for the reasonable suspicion necessary to make a stop, police could weigh it as a factor among others.

International research by the Open Society Justice Initiative indicates that when policies grant police broad discretion to stop individuals without reasonable grounds for suspicion, minorities bear the brunt of the burden. It was precisely the expansion of police officers’ rights to act without checks on their authority that concerned Sotomayor in Strieff.

Because of this ruling, the mass of arrest warrants distributed across the nation have the potential to function as a shield, protecting countless officers from the exclusionary rule. Sotomayor compiled staggering statistics to illustrate this point: “The states and federal government maintain databases with over 7.8 million outstanding warrants, the vast majority of which appear to be for minor offenses.” In Ferguson alone, the Justice Department found that 16,000 out of 21,000 residents were subject to warrants.

A dissent has no legal force, no matter how well written or radical. So, why bother writing one?

In Heien v. North Carolina, a 2014 case on the scope of the Fourth Amendment, the court held that, in some cases, an officer’s misinterpretation of a law is a permissible basis for the reasonable suspicion required to make traffic stops. Sotomayor dissented. She warned that allowing law enforcement officials the discretion to interpret laws for themselves could lead to a rupture in police–community relations. In the Strieff dissent, where Sotomayor’s frustration is more palpable, she warns her readers that the rift opened up by racial profiling runs even deeper, lamenting the emergence of a national “double consciousness” that tracks America’s color line.

Of the many past and prospective victims of Fourth Amendment violations, Sotomayor writes, “Until their voices matter too, our justice system will continue to be anything but.” This line resonates as Black Lives Matter protesters take to the streets in the aftermath of the police killings of Alton Sterling and Philando Castile. What is now merely a dissenting recommendation could, with activism and advocacy, become a blueprint for a more just Fourth Amendment jurisprudence.