On Monday, the US Supreme Court ruled in a 5-to-3 decision that if evidence is found by police during a stop – justified or not – it can be used in a court of law.  The court overturned an original ruling in a Utah Supreme Court criminal case, Utah v. Strieff, in which a man, Edward Strieff, was illegally stopped outside his home, without a warrant and without just cause.  The police had been surveying Strieff’s home based on an anonymous tip that there was narcotics activity taking place inside.  So when Strieff exited his house one day in 2006, the local police stopped him, ran a background check, and discovered an outstanding traffic violation.  This, they concluded, gave them reason to search Strieff, where they found a baggie of methamphetamine on his body and used that to arrest him.

Fourth Amendment Contradiction

This ruling lands directly in violation of the Fourth Amendment, which guarantees citizens’ protection against search and seizure.  Specifically, the Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  Yes, Strieff was illegally in possession of narcotics.  However, his rights were violated in that the police had no warrant and no cause to stop, search, arrest and convict him.

Of course, there are exceptions to the Amendment but they are limited and very specific.  They include searches that are consented to, searches performed after a motor vehicle stop in which evidence is in plain view and searches at a border.  The police who stopped Strieff clearly did not fall within any of these exceptions.


Supreme Court Justice Sonia Sotomayor spoke passionately against the ruling in her dissent, noting that such a ruling is a threat to people of color who have any kind of past criminal charge, regardless of when or how big/small.  Sotomayor stated, “For generations, she wrote, 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 and the other dissenting judges argued that this ruling will make it increasingly likely for police to stop and search people in lower-income communities, or simply any time and anywhere they deem fit.  The Justices claimed that our rights as citizens are violated if the police become the jury and judge, too, deciding when it’s appropriate to frisk someone and what makes a search lawful.  Up until now, courts used the Exclusionary Rule – stating that any evidence found during an illegal search would be thrown out – to uphold the 4th Amendment.  Utah v. Strieff, however, is the first case to disregard fruit from the poisonous tree as being poisonous at all.

Unlawful Stop and Search

Dealing with an unlawful stop and search: If you are ever approached by law enforcement officers, you should NEVER consent to a search of your person, property of effects.  Notwithstanding the ruling in Strieff, if you CONSENT to a search, you have NO argument to throw it out.  I inform all my clients that they should verbally refuse to answer any questions without an attorney present (Yes, due to another confusing Supreme Court decision, simply remaining silent does NOT invoke your right to remain silent; you have to actually say “I WISH TO REMAIN SILENT” to invoke your 5th Amendment right.  With Search issues, when the police tell you that if you don’t consent, they will get a search warrant, let them; that is the protocol.  However, as soon as law enforcement reads this decision, they will have free reign on searches WITHOUT ANY PROBABLE CAUSE and we will see more and more warrantless searches that should be thrown out.  Hopefully, when this issue is again before SCOTUS, they will have 9 members and correctly interpret one of the most important safe guards we have to our personal security.

If you or anyone you know is arrested and/or searched, contact my office immediately so the facts can be established and we can make sure the police followed the correct procedure regarding any seized evidence or contraband. Call the Kestenbaum Law Group today (818) 616-4312.