Utah v. Strieff and its limited impact upon Terry stops

The Supreme Court's June 20 decision in Utah v. Strieff provided an interesting analysis and application of the attenuation principle as applied to an unlawful police stop of an individual. The majority opinion of Justice Clarence Thomas held that the subsequent revelation of an outstanding traffic warrant was an intervening event that separated the unlawful stop from the search incident to arrest. Naturally, drugs were found during the search and this became the focus of the suppression issue. However, since there was a valid warrant for the individual the Court ruled that the search was attenuated or separated from the initial illegal stop by the existence of the valid warrant. In a sharply worded dissent Justice Sotomayor lambasted the logic of the majority opinion and wrote: "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." While Justice Sotomayor's concern is valid, it is not as valid for what the opinion actually stated as much as it is for how it may be interpreted by law enforcement.  If law enforcement interprets it as Justice Sotomayor fears then there is a problem, but the actual reach of the majority opinion is more limited. Justice Thomas' opinion responds to this concern: "Strieff argues that, because of the prevalence of outstanding arrest warrants in many jurisdictions, police will engage in dragnet searches if the exclusionary rule is not applied. We thin that this outcome is unlikely. Such wanton conduct would expose police to civil liability." Time will if a flawed reading and interpretation of Strieff will find its way into police training curricula. Hopefully it will not, although we have witnessed prior narrow Supreme Court decisions get twisted into a flawed police procedure. Take the case of Oregon v. Elstad, 470 U.S. 298 (1985) wherein the Supreme Court said that even though a prior, un-Mirandized incriminating statement was inadmissible a suspect's subsequent Mirandized written confession was admissible under the "cured statement rule." Interpretation of this decision led some police training to advocate a "question now, Miranda later" practice which had officers obtaining incriminating statements from custodial suspects and then providing Miranda warnings and obtaining a repeat of the incriminating statement. This deliberate tactic was later ruled unconstitutional as a 5th Amendment violation in Missouri v. Seibert, 542 U.S. 600 (2004). The State of Missouri tried to argue that Patrice Seibert's murder confession was admissible under the logic of Oregon v. Elstad and that the cases were indistinguishable. The Court said the question-first strategy proffered by the state "disfugures" the holding in Elstad. In Elstad there was no intentional circumvention of the Miranda requirements, whereas in Seibert there was a deliberate, strategic plan to initially avoid Miranda warnings. Justice Souter succinctly described the matter in the first sentence of Seibert, "This case tests a police protocol for custodial interrogation..." That protocol was obviously found to be constitutionally infirm. I would hope the recent Strieff opinion does not travel a similar interpretive path as Elstad. I would expect not since police training has significantly improved in the thirty-one years since Elstad and dedicated police attorneys are more actively involved with training issues and curriculum. Still, we find that not all training is uniform across the country and recent events have increased the call for a national standard for police training. If Justice Sotomayor's warning ever became reality it would be a sad statement for the quality of law enforcement training in place wherever it were to occur.