I. Introduction

Just as the temptation for the fabled fruit from Eden’s tree of life aroused the proverbial fall of man, [1] so too has the enticement for the derivative fruits of unlawful police conduct provoked the erosion of Fourth Amendment protections. Notwithstanding the exclusionary rule, under which evidence gained as an indirect result of a Fourth Amendment violation is generally deemed inadmissible “fruit of the poisonous tree,”[2] the tantalizing notion that exclusion comes at too great a societal cost[3] has lured modern courts into gradually expanding the channels of admissibility to unlawfully obtained evidence.[4] Instead of following the bedrock principles that originally supported the exclusionary rule’s protections—such as deterring police misbehavior,[5] reinforcing judicial integrity,[6] and defending individual defendants’ rights[7]—a growing number of courts have expanded the boundaries of the exceptions to suppression, enabling law enforcement to embark on fishing expeditions and allowing admission of typically tainted fruit.[8]

The attenuation exception[9] to the exclusionary rule is the siren song that has lured many courts to err on the side of admission; particularly, when the facts of a case reveal some identifiable disconnect or break in the causal chain between the challenged evidence and a prior constitutional violation.[10] In our modern era of digital databases and instantaneous results, many of these courts have encountered an emerging fact pattern that provides, in their minds, sufficient attenuation of the taint. The fact pattern typically proceeds as follows: an officer conducts an unlawful detention, runs the detainee’s identification through a police database, discovers an arrest warrant out on the detainee, places the detainee under arrest, searches the detainee incident to the arrest, and uncovers incriminating evidence.[11]

In this “outstanding warrant scenario,” some courts apply the attenuation doctrine as an antidote for the poisonous fruit, deeming the subsequent discovery of the warrant to be a “compelling” intervening circumstance that severs the causal chain between the unlawful detention and the derivative evidence.[12] Conversely, a number of other state high courts and federal courts of appeals have stringently confined the doctrine’s applicability to suppress such derivative evidence, concluding that the the arrest of a defendant on an active warrant discovered during an illegal detention may justify a search incident thereto, but does not sever the nexus between the unlawful stop and the search incident to arrest.[13]

In State v. Strieff, the Supreme Court of Utah adopted a third approach for dealing with the outstanding warrant scenario.[14] Instead of applying the traditional elements of the attenuation exception to the discovery of an outstanding warrant, the court in Strieff deemed the attenuation doctrine utterly inapplicable in such circumstances.[15] The court indicated that the basis of its new approach originated from a dissenting opinion by Chief Justice Pariente of the Florida Supreme Court in State v. Frierson.[16] The Frierson dissent proposed limiting the scope of the attenuation doctrine to embrace only those cases involving a defendant’s independent acts of free will.[17] However, the Supreme Court of Utah went a step further in Strieff by adding a radical nuance to Chief Justice Pariente’s approach. The court held that “in the distinct circumstance involving the discovery of an outstanding warrant, we conclude that a different doctrine—the inevitable discovery exception—controls.”[18]

Although the court’s holding in Strieff marked an unprecedented approach to attenuation analysis, the facts of the case were markedly less extraordinary. Following an anonymous tip that drug activity was afoot at a local residence, Officer Douglas Fackrell conducted surveillance of the house intermittently from his unmarked car for approximately one week.[19] The only suspicious activity that Fackrell observed during that time was “not terribly frequent” short-term foot traffic at the house.[20] Based on this limited knowledge, Fackrell concluded that traffic at the residence was consistent with narcotic sales activity and decided he would detain the next person he saw leaving the house. That person happened to be Edward Strieff.[21]

Fackrell detained Strieff in a nearby parking lot, asked for his ID, and then called dispatch and requested a warrant check.[22] Dispatch informed Fackrell that Strieff had a “small traffic warrant.”[23] Fackrell arrested Strieff on the outstanding traffic warrant, searched him incident to the arrest, and found meth and drug paraphernalia in his pockets. Strieff was charged with drug-related offenses and moved to suppress the evidence on the ground that the evidence was the fruit of an unconstitutional detention.[24]

The state conceded that Fackrell did not have reasonable suspicion to detain Strieff.[25] Rather, Fackrell was seemingly fishing “for evidence in the hope that something might turn up.”[26] Nevertheless, the state argued that the exclusionary rule should not apply.[27] As the state contended, the discovery of the outstanding warrant constituted an intervening circumstance that severed the causal connection between the illegal detention and the discovery during the search incident arrest. The state district court agreed with the prosecution and denied Strieff’s motion to suppress and subsequent motion to reconsider. The state court of appeals affirmed the lower-court ruling under the attenuation doctrine.[28]

The Supreme Court of Utah unanimously reversed the decision.[29] In confronting the attenuation doctrine’s applicability, the court noted that the absence of guidance from the United States Supreme Court has forced lower courts addressing the outstanding warrant situation “to fill in gaps by reading any and all tea leaves available to us,” leading to substantially different conclusions.[30] The court opined that the lack of consensus among lower courts “stems from a threshold misunderstanding of the scope of attenuation.”[31] Fearful of the attenuation doctrine swallowing the inevitable discovery exception, and in a passionate attempt “to preserve the analytical distinction between the two,” the court held that the attenuation exception has no application in the outstanding warrant scenario and further limited the scope of the doctrine “to cases involving intervening acts of a defendant’s free will.”[32]

This comment will argue that the Supreme Court of Utah reached the appropriate outcome in Strieff, but adopted an unworkable approach to outstanding warrant situations through its lopsided evaluation of the three-factor test driving attenuation analysis. Part A will discuss why the Strieff decision and its analysis of the attenuation factors are inconsistent with Supreme Court precedent and the realities of our modern society. Part B will argue that the best approach for future applications of the attenuation doctrine entails a return to the bedrock principles underlying the exclusionary exception—principles which courts all too often ignore.

II. Analysis

The Fourth Amendment states that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”[33] But the Amendment does not postulate a mechanism to enforce that right.[34] Thus, to provide a remedy for Fourth Amendment violations, the Supreme Court crafted the exclusionary rule.[35] Under this rule, evidence seized as the result of an unconstitutional search is the fruit of the poisonous tree and may not be used as proof against the victim of the search.[36] The taint of illegality may be purged if the evidence were discovered by an independent source,[37] if it would have been inevitably discovered absent a connection to the underlying illegality,[38] if it were obtained by police acting in reasonable good faith reliance on a warrant that is later declared defective,[39] or if the discovery of the evidence has “become so attenuated as to dissipate the taint.”[40]

For the latter exception to the exclusionary rule, the Court in Brown v. Illinoisestablished a framework for attenuation analysis.[41] In deciding whether the issuance of Miranda warnings was sufficient to dissipate the taint of an illegal arrest and render a subsequent confession admissible, the Court identified three factors for courts to consider during an attenuation inquiry: (1) “the temporal proximity” of the official misconduct and the discovery of the evidence, (2) “the presence of intervening circumstances,” and (3) “the purpose and flagrancy of the official misconduct.”[42] While the Court considered Miranda warnings to be another important factor in cases involving confessions, it refused to make any single factor an exclusionary “cure-all.”[43]

A. The Strieff court reached the correct result through faulty attenuation analysis.

The Supreme Court of Utah’s ultimate decision in Strieff—to suppress the tainted fruit—was a correct one. But the Strieff court achieved its outcome through an analysis that ignored the historical underpinnings of the attenuation doctrine, misconstrued the Brown factors, and resolved its befuddlement by further muddying the waters.

First, the Supreme Court of Utah’s holding in Strieff limits the application of the attenuation doctrine to fact patterns involving “a voluntary act of a defendant’s free will (as in a confession or consent to search).”[44] The premise of its holding is rooted in the court’s false belief that the “Supreme Court’s attenuation cases have all involved confessions made by unlawfully detained individuals.”[45] However, the court concedes that its proffered catalog of “all” attenuation cases is not “an exhaustive list” and deliberately excluded landmark cases that forged the attenuation doctrine’s application to the rule of exclusion.[46] But a careful analysis of the three founding exclusionary cases—Weeks v. United States,[47]Silverthorne Lumber Co. v. United States,[48] andNardone v. United States[49]—reveals an interplay of property interests, privacy concerns, and elemental attenuation analysis that is void of any independent acts of free will on the part of the defendants sufficient to attenuate the taint.[50] Thus, the Strieff court’s arbitrary “free will” limitation on the attenuation doctrine is lacking foundational support.

Second, the Strieff court’s scrutiny of the Brown factors as applied to the outstanding warrant scenario was erroneous and led the court to unnecessarily prohibit the attenuation exception’s applicability to such cases.[51] The court first examined the “intervening circumstances” factor as a threshold inquiry for its attenuation analysis.[52] Finding that an outstanding warrant does not qualify as an intervening circumstance sufficient to break the causal chain, the court reasoned that the discovery of an outstanding warrant “is part of the natural, ordinary course of events arising out of an arrest or detention;” as such, “it is not an independent act that is sufficiently removed from the primary illegality to qualify as intervening.”[53]

According to the Supreme Court of Utah, intervening circumstances must be unforeseeable and outstanding warrants are not unforeseeable.[54] Sadly, the court is correct in its assessment of our modern criminal justice system. The FBI’s website reveals that police access to “an electronic clearinghouse of crime data that can be tapped into by virtually every criminal justice agency nationwide, 24 hours a day, 365 days a year.”[55] And the number of outstanding arrest warrants in the United States is unfathomable.[56] For example, in Ferguson, Missouri, the Justice Department found that more than 16,000 people out of the total population of 21,000 have outstanding arrest warrants.[57]

To make matters worse, police officers in some jurisdictions “view a warrants check as a routine feature of almost any citizen encounter,” regardless of whether the police have reasonable suspicion to detain the person they are stopping.[58] As one commentator explains, “The utility of discovering an open warrant . . . is generally not derived from serving the warrant, but rather from conducting a search incident to arrest.”[59] Thus, discovery of an outstanding warrant may be foreseeable in jurisdictions where such a high percentage of the population have warrants out for their arrest.

But the Strieff court’s use of foreseeability to strike a categorical ban on the application of the attenuation doctrine to the outstanding warrant scenario is imprudent. Deterrence of misconduct—one of the primary purposes of the exclusionary rule—is best served by weighing foreseeability as a factor under the totality of the circumstances, rather than assuming all outstanding warrants are foreseeable.[60] In jurisdictions where the excessive number of outstanding warrants incites police misconduct, the attenuation exception will fail and police will be deterred from fishing expeditions. And in other areas where discovery of an outstanding warrant is more theoretical, such discovery may very well be capable of attenuating the taint.

Third, the court in Strieff feared “an extension of the attenuation doctrine to the outstanding warrant scenario would eviscerate the inevitable discovery exception.”[61] This misplaced fear led the court to deem the inevitable discovery doctrine as the sole exception for the discovery of an outstanding arrest warrant following an illegal search or seizure.[62] But the court failed to recognize that, under the inevitable discovery doctrine, the prosecution must show discovery would have inevitably occurred by a preponderance of the evidence;[63] and, given the temporal proximity of such a discovery and the initial Fourth Amendment violation, it will be impossible for the prosecution to show that the same evidence would have inevitably been discovered on “any future date on which [a defendant] may have been arrested on the outstanding warrant.”[64] The Strieff court’s approach of preemptively categorizing the scenarios as falling under one specific exception is exactly what the Court in Brown instructed against.[65]

B. Courts should revive the fundamental principles of the attenuation doctrine.

The decisions of the United States Supreme Court in our modern era have gradually chipped away at the exclusionary rule, broadening the scope of its exceptions. For example, in Hudson v. Michigan,[66] the Court employed the term “attenuation” in a novel, and far-reaching manner by explaining that “[a]ttenuation can occur . . . when the causal connection is remote,” but it also occurs when “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”[67] This expanded conception of the term allowed the Court to sidestep the Brown three-step analysis and further deteriorate the suppression penalty—adding judicial insult to executive injury.

In deciding that any knock-and-announce violation would satisfy the test for attenuation provided that it occurred pursuant to a warrant authorizing entry, the majority in Hudson deviated from earlier attenuation analysis by taking a per se approach.[68] The Court’s continued erosion of the exclusionary rule has been premised on its insistence that the only purpose served by exclusion is deterrence of police misconduct.[69] Yet, the exclusionary rule and attenuation doctrine both developed not only from a desire for deterrence, but also out of concerns for judicial integrity and protection of the constitutional rights of the individual defendant.[70] Additionally, the exclusionary rule can only stimulate meaningful deterrence when it is applied not only to deliberate misconduct, but also to systemic negligence, such as warrant abuses.[71]

III. Conclusion

Had the Strieff court been more diligent in its examination of attenuation precedent, less restrictive in its consideration of the outstanding warrant scenario, and further removed from its misplaced fear of co-mingling doctrines, it would have reached the same result through a less attenuated evaluation of exclusionary principles. A return to the genesis of exclusion is in order.

Endnotes

[1]Genesis 3:22-23 (The Message) (“God said, ‘The Man has become like one of us, capable of knowing everything, ranging from good to evil. What if he now should reach out and take fruit from the Tree-of-Life and eat, and live forever? Never—this cannot happen!’ So God expelled them from the Garden of Eden and sent them to work the ground, the same dirt out of which they'd been made.”).

[2]See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).

[3]See People v. Defore, 150 N.E. 585, 587 (N.Y. 1926) (“The criminal is to go free because the constable has blundered.”).

[4]See, e.g., Hudson v. Michigan, 547 U.S. 586, 597-99 (2006) (refusing to force “the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.”).

[5]See United States v. Leon, 468 U.S. 897, 898 (1984) (explaining that “the exclusionary rule is designed to deter police misconduct”).

[6]See Elkins v. United States, 364 U.S. 206, 222 (1960) (discussing the “imperative of judicial integrity”).

[7]See Mapp v. Ohio, 367 U.S. 643, 660 (1961) (stating that the exclusionary rule “gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.”).

[8]See, e.g., United States v. Simpson, 439 F.3d 490 (8th Cir. 2006); United States v. Green, 111 F.3d 515 (7th Cir. 1997); State v. Frierson, 926 So. 2d 1139 (Fla. 2006); State v. Page, 103 P.3d 454 (Idaho 2004); State v. Martin, 179 P.3d 457 (Kan. 2008); State v. Hill, 725 So. 2d 1282 (La. 1998); Myers v. State, 909 A.2d 1048 (Md. 2006); Jacobs v. State, 128 P.3d 1085 (Okla. Crim. App. 2006).

[9]See generally 3 Wayne R. LaFave et al., Criminal Procedure, § 9.3(c) (3d ed.2007).

[10]See id.

[11]See State v. Strieff, 357 P.3d 532, 536 (Utah 2015) cert. granted, 136 S. Ct. 27 (2015) (“The essential fact pattern involves an unlawful detention leading to the discovery of an arrest warrant followed by a search incident to arrest.”)

[12]See Green, 111 F.3d at 522-23; Frierson, 926 So. 2d at 1140; see also State v. Dunn, 172 P.3d 110, 115-16 (Mont. 2007) (Leaphart, J., concurring) (arguing that subsequent discovery of an outstanding warrant cures an initially unlawful search).

[13]See, e.g., United States v. Lopez, 443 F.3d 1280 (10th Cir. 2006); United States v. Luckett, 484 F.2d 89 (9th Cir. 1973); People v. Padgett, 932 P.2d 810 (Colo. 1997); Sikes v. State, 448 S.E.2d 560 (S.C. 1994); State v. Daniel, 12 S.W.3d 420 (Tenn. 2000); St. George v. State, 237 S.W.3d 720 (Tex. Crim. App. 2007).

[14]See Strieff, 357 P.3d at 536 (“We adopt a third approach”).

[15]See id. at 544.

[16]Id. at 543 (citing State v. Frierson, 926 So.2d 1139 (Fla. 2006) (Pariente, C.J., dissenting)).

[17]See Frierson, 926 So.2d at 1155 (“The exclusionary rule is well tailored for these circumstances: an illegal detention resulting in the seizure of evidence with no action by the defendant, such as a consent or confession, that would sever the causal tie between the illegal conduct and the acquisition of evidence.”).

[18]Strieff, 357 P.3d at 544.

[19]Id. at 536.

[20]Id.

[21]Id.

[22]Id.

[23]Id.

[24]Id.

[25]Id. at 536-37.

[26]See Brown v. Illinois, 422 U.S. 590, 605 (1975).

[27]Strieff, 357 P.3d at 537.

[28]See State v. Strieff, 286 P.3d 317, 323 (Utah App. 2012) rev'd, 357 P.3d 532 (Utah 2015).

[29]Strieff, 357 P.3d at 546.

[30]Id. at 547.

[31]Id.

[32]Id.

[33]U.S. Const. amend. IV.

[34]See Heather A. Jackson, Arizona v. Evans: Expanding Exclusionary Rule Exceptions and Contracting Fourth Amendment Protection, 86 J. Crim. L. & Criminology 1201, 1202 (1996).

[35]See William C. Heffernan, The Fourth Amendment Exclusionary Rule as a Constitutional Remedy, 88 Geo. L.J. 799, 800 (2000) (discussing the inception of the exclusionary rule and cases that shaped its exceptions).

[36]See Weeks v. United States, 232 U.S. 383, 398 (1914) (adopting the exclusionary doctrine for Fourth Amendment violations); Mapp, 367 U.S. 643, 655 (1961) (applying the exclusionary doctrine to the states via the Due Process Clause of the Fourteenth Amendment).

[37]See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920) (“If knowledge of [unlawfully obtained facts] is gained from an independent source, they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed.”).

[38]See Nix v. Williams, 467 U.S. 431, 448 (1984).

[39]See Leon, 468 U.S. at 913 (1984) (adopting the good faith exception to the exclusionary rule).

[40]Wong Sun, 371 U.S. at 487.

[41]See Brown, 422 U.S. at 603–04.

[42]Id.

[43]See id. at 602-04 (“No single fact is dispositive.”).

[44]Strieff, 357 P.3d at 536.

[45]See id. at 542.

[46]See id. at 542 n.4 (“This is a complete list of United States Supreme Court cases applying the attenuation doctrine. But it is certainly not an exhaustive list of cases in which the Court has employed the term “attenuation” in framing the exclusionary rule.”).

[47]See generally Weeks, 232 U.S. at 398.

[48]See generally Silverthorne, 251 U.S. 392.

[49]See Nardone v. United States, 308 U.S. 338, 341 (1939).

[50]See Heffernan, supra note 29, at 800.

[51] See Strieff, 357 P.3d at 544-45.

[52]See id.

[53]Id.

[54]See id.

[55]Federal Bureau of Investigation, National Crime Information Center, http://www.fbi.gov/ about-us/cjis/ncic (last visited Apr. 1, 2016).

[56]See, e.g., Eric Helland & Alexander Tabarrok, The Fugitive: Evidence on Public Versus Private Law Enforcement from Bail Jumping, 47 J.L. & Econ. 93, 98-99 (2004) (examining the existence of millions of open warrants across the nation).

[57]See U.S. Department of Justice, Investigation of the Ferguson Police Department 6, 55 (2015), http://goo.gl/AFQDW3

[58]See Golphin v. State, 945 So. 2d 1174, 1202 (Fla. 2006) (Pariente, J., concurring).

[59]See Michael Kimberly, Discovering Arrest Warrants: Intervening Police Conduct and Foreseeability, 118 Yale L.J. 177, 181 n.22 (2008).

[60]See Andrew E. Taslitz, Hypocrisy, Corruption, and Illegitimacy: Why Judicial Integrity Justifies the Exclusionary Rule, 10 Ohio St. J. Crim. L. 419, 439-40 (2013) (discussing the Court’s primary focus on the deterrence factor while arguing for a more thorough analysis of the additional foundational purposes underlying the attenuation doctrine).

[61]Strieff, 357 P.3d at 545.

[62]See id.

[63]See Nix v. Williams, 467 U.S. 431, 444 (1984).

[64]Strieff, 357 P.3d at 546.

[65]See supra notes 35-37 and accompanying text.

[66]See Hudson, 547 U.S. 586 (2006).

[67]Id. at 593.

[68]See id.

[69]See generally Davis v. United States, 564 U.S. 229 (2011) (describing the exclusionary rule as “a deterrent sanction”).

[70]See supra notes 5-7.

[71]See Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973) (quoting Boyd v. United States, 116 U. S. 616, 635 (1886)) (discussing systemic negligence of law enforcement and that “illegitimate and unconstitutional practices get their first footing” in their “mildest and least repulsive form[s],” and “by silent approaches and slight deviations” from previously accepted practice).