It is easy to feel comfortable with a court decision that supports the prosecution of someone found to have illegal drugs on his person. That such a conviction was a result of a search of a person who had a valid, outstanding arrest warrant for past alleged misconduct is not very remarkable.
But U.S. Associate Justice Sonia Sotomayor rightly and with authority points out in a dissent that much more was at stake when the Supreme Court, on June 20, upheld (5 to 3) such a search and conviction in the case of Utah v. Strieff.
What alarmed Sotomayor, and what should alarm all of us, is that the defendant in this case was initially stopped by police for no legitimate reason.
A Salt Lake City police officer had staked out a house, thinking illegal drug activity might be taking place. The defendant, Edward Joseph Strieff Jr., emerged from this house, but police had by their own admission no reason to believe he had done anything wrong. He was just the first person to leave the house.
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Nonetheless, officers stopped him and demanded identification. An identity check revealed an old, outstanding arrest warrant for a traffic violation. A search of Strieff related to that arrest found drugs.
The U.S. Supreme Court decided 48 years ago that police stopping citizens without legitimate cause was illegal and a violation of the Fourth Amendment protection against unreasonable searches and seizures. That case, Terry v. Ohio, was not only a landmark criminal justice case but also a watershed civil rights case. Its context arose out of concern in communities of color over police stops of black and brown (usually male) citizens because of race and racial profiling.
These encounters, in addition to the very real trauma that they cause, all too often resulted in injury, death or wrongful inclusion in the criminal justice system.
Strieff’s case was not about race. Strieff is apparently white. However, the precedent set by this case is very much of concern in the discussion about race, and its role in the criminal justice system.
Sotomayor points out that “it is no secret that people of color are disproportionate victims of this type of scrutiny.”
Sotomayor’s fear is that the Supreme Court has authorized unfettered hunting licenses. History has shown that the big game being hunted is more often than it should be members of the black and brown community.
Why should we care if, in the end, people who should be arrested are arrested? We should care because largely it is the innocent who pay the price of a rampant, aggressive stop-and-frisk policy. The relatively recent experience of New York City is a grim example of what can and does happen nationally.
During the period of New York City’s aggressive “stop and frisk” initiative (2002-2012), more than 4.7 million were subjected to stops by the police. On average, more than 85 percent of these stops were of innocent people producing no criminal charges. About 85 percent of those stopped were black or brown.
Even after the alleged ending of aggressive stops in New York, stop-and-frisks in 2015 still subjected people of color disproportionately (81 percent of stops) to the trauma of police on-the-street confrontation, with more than 80 percent of those stopped being innocent.
Safety is not a fair exchange for loss of our values as Americans or our rights as human beings. This isn’t a case of the fate of one guilty man; it is a grim reminder of the fragility of all of our protections.
LeRoy Pernell is a professor in the College of Law at Florida Agricultural and Mechanical University.