Justice Sotomayor writes blistering dissent on police misconduct case

Photo credit:  Associated Press

The Supreme Court has issued a ruling, by a 5-3 vote, that is an expansive interpretation of the limits the Constitution places on police searches.   Justice Clarence Thomas wrote the majority opinion, which was opposed by Justices Ruth Bader Ginsburg, Elena Kagan, and in an especially powerfully written dissent, by Justice Sonia Sotomayor.

The case involved a white man from Utah, Edward Strieff, who was stopped by police officers because they had "a hunch" that he could be engaged in drug activity, but they had no evidence or indeed any real "reasonable suspicion."   When the officer ran Strieff's driver's license through the computer system, it turned out that he had a minor traffic ticket that was unpaid.   This infraction was then their justification for searching the man for contraband -- and they found methamphetamines in his pocket, which was then the basis for an arrest and charges of drug possession.

The case went all the way to SCOTUS, because it tests the extent to which police can search someone without "reasonable" suspicion that he is involved in a crime.   Just stopping people randomly on the street, demanding their ID, checking it for outstanding traffic warrants -- and then using that infraction to justify a search has, in the past, been considered a violation of the Fourth Amendment's prohibition against unreasonable searches and seizures.

The majority ruled that the drugs he possessed could be used against Strieff at the trial, even though the officer had violated Strieff's rights in the first place.    Thus, the Strieff case tests the border between a police officer's "hunch" and a police officer's reasonable suspicion -- or possibly, as Thomas wrote, it was just that the officer was negligent and made a mistake.   Sotomayor was outraged -- and her dissent was blistering.

 "Do not be soothed by the opinion’s technical language: 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 his search for lawbreaking, the officer in this case himself broke the law.”

The report by Christian Farias, political reporter for Huffington Post, described Sotomayor's dissent further: 

" One by one, she ran through instances of a Supreme Court all too willing to grant police more power to detain, arrest and search citizens — based on pretextual reasons, the way they look, or even suspicion that they had broken a law that doesn’t exist.

"She underscored that all bets are off once a person is caught in this system.  '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,' Sotomayor wrote.

"Strieff may have been white, 'but it is no secret that people of color are disproportionate victims of this type of scrutiny. . . . For generations, black and brown parents have given their children "the talk" —  instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger— all out of fear of how an officer with a gun will react to them,' Sotomayor wrote.

"She concluded with language that is best when quoted in full — in which she comes ever so close to declaring that black and brown lives indeed do matter: 

'By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.  We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but."

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In this time of heightened anxiety and suspicion of those around us, especially of those who look different from us, it is vital that American values of freedom and equal rights not be chipped away in the false service of "keeping us safe."   Today it may be about the very real drug problem hurting our society.  Or the risk of terrorist attacks.   But tomorrow it could be about ethnicity or religion used as the "reasonable suspicion" that allows police to stop and search -- and that is one step away from search out and detain.   And that is a police state.

Ralph