Allowing Lawless Police Conduct in Order to Forbid Lawless Civilian Conduct: The Court Further Erodes the Exclusionary Rule in Utah v. Strieff

Authors

George M. Dery III

Abstract

This Article analyzes Utah v. Strieff, in which the Supreme Court applied its attenuation of taint doctrine to drugs and paraphernalia recovered as a result of an illegal stop of a person. The Strieff Court ruled that the evidence, seized during a search incident to arrest after an unlawful seizure, was admissible because the officer learned of an unknown outstanding arrest warrant during the stop. Strieff reasoned that the discovery of this arrest warrant attenuated the connection between the initial illegal seizure and the evidence ultimately seized incident to arrest. This Article examines the concerns created by Strieffs ruling. This Article asserts that the Court, in emphasizing lawful police conduct in an effort to minimize a Fourth Amendment violation, weakened the exclusionary rule. Further, the Strieff Court applied an attenuation rule that was not designed for physical evidence and, therefore, failed to adequately address the taint in its case. Also, in emphasizing purposefulness and flagrancy, the Court set an alarmingly low bar as its new standard for lawful policing. Finally, Strieff destroyed any incentive to avoid illegal seizures by providing police a per se rule for automatically cleansing taint.

Recommended Citation

George M. Dery III, Allowing Lawless Police Conduct in Order to Forbid Lawless Civilian Conduct: The Court Further Erodes the Exclusionary Rule in Utah v. Strieff, 44 Hastings Const. L.Q. 393 (2017).
Available at: https://repository.uclawsf.edu/hastings_constitutional_law_quaterly/vol44/iss4/1