Mimesis Law
4 July 2020

Tale of Two Justices: Justice Thomas Was Right On Strieff

June 24, 2016 (Fault Lines) — Justice Thomas gets a lot of attention. He was a key player in two documentaries, Confirmation and Anita. He grew up in the Jim Crow South, compared affirmative action to Jim Crow, almost entered the priesthood, married a white woman, and has suffered through having his blackness questioned, is religious, among other things. And when he asks a question during oral argument, every person in the world remembers where he or she was at when it happened.

Justice Thomas is hated by liberals, or as Slate understates it—disliked. Comparing affirmative action to Jim Crow was just one of many possible reasons. There’s his statement that legal slavery did not take dignity away from those enslaved. And there was Thomas’ dig at the secular messiah President Obama. Also, there’s his harsh take down of cross burning, leaving some liberals who hate him perplexed by agreeing with him. Justice Thomas has lived a life full of obstacles, upheaval and enemies.

It’s always a dangerous thing to try to understand someone’s internal life from their biography and actions, but it seems that Thomas’ worldview became something unshakeable in his life. He doesn’t let anyone tell him what it means to be black or how the law should be interpreted; Thomas just stays true to himself. And that’s probably even more of a reason why he’s hated. Because people who cannot be shamed into doing what the media elites want are powerful people.

As his own man of rather well-defined principles (love them or hate them), Justice Thomas is willing to go it alone in Taylor v. United States and say that the commerce clause is not the American legal equivalent of Kaiser Wilhelm’s blank check:

To avoid giving Congress a general police power, there must be some limit to what Congress can regulate. But the substantial-effects approach’s aggregation principle “has no stopping point.” Id., at 600 (THOMAS, J., concurring). “[O]ne always can draw the circle broadly enough to cover an activity that, when taken in isolation, would not have substantial effects on commerce.” Ibid.

Under the substantial-effects approach, Congress could, under its commerce power, regulate any robbery: In the aggregate, any type of robbery could be deemed to substantially affect interstate commerce.

By applying the substantial-effects test to the criminal prohibition before us, the Court effectively gives Congress a police power. That is why the Court cannot identify any true limit on its understanding of the commerce power.

Although the Court maintains that its holding “is limited to cases in which the defendant targets drug dealers for the purpose of stealing drugs or drug proceeds,” ante, at 9, its reasoning allows for unbounded regulation. Given that the Hobbs Act can be read in a way that does not give Congress a general police power, see Part I, supra, we should not construe the statute as the Court does today.

Justice Thomas objected here to the federal prosecution of attempted robbery of marijuana.

You may remember back to Raich v. Gonzales too, where the court re-examined the substantial effects doctrine, and despite the ultimate result being one that would favor drug dealers, there too Thomas stuck to his principles.

So, if Justice Thomas alone has concern about federal overreach in criminal matters, what gives in Utah v. Strieff? It’s the case were some guy gets stopped illegally, is forced to hand over his identification, and gets arrested after a warrants check.

Intellectually, Thomas has to understand that the local cop on patrol potentially has a lot of unchecked power already. And if he’s concerned about giving Congress a blank check, then why is he not concerned about giving the local police officer more power. Again, he lived in the Jim Crow South and certainly had to be aware that unchecked authority can give rise to abuse. One does not seem to fit with the other.

Federal law enforcement and military invention in the south hastened the end of Jim Crow, and federal intervention during Reconstruction held off some of the first attempts to establish Jim Crow. Perhaps he views the power of the sword as all about the hand who wields it.

Also, it’s worth recalling that Thomas has a unique view of the Confrontation Clause:

In Crawford, the Court explained that “[t]he text of the Confrontation Clause . . . applies to ‘witnesses’ against the accused—in other words, those who ‘bear testimony.’ ” Id., at 51 (quoting 2 N. Webster, An American Dictionary of the English Language (1828)).

“‘Testimony,’ ” in turn, is “ ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” 541 U. S., at 51. In light of its text, I continue to think that the Confrontation Clause regulates only the use of statements bearing “indicia of solemnity.” Davis v. Washington, 547 U. S. 813 –837, 840 (2006) (Thomas, J., concurring in judgment in part and dissenting in part).

This test comports with history because solemnity marked the practices that the Confrontation Clause was designed to eliminate, namely, the ex parte examination of wit- nesses under the English bail and committal statutes passed during the reign of Queen Mary. See id., at 835; Bryant, 562 U. S., at ___ (Thomas, J., concurring in judgment) (slip op., at 1); Crawford, supra, at 43–45.

Accordingly, I have concluded that the Confrontation Clause reaches “ ‘formalized testimonial materials,’ ” such as depositions, affidavits, and prior testimony, or statements resulting from “ ‘formalized dialogue,’ ” such as custodial interrogation.

And Justice Thomas routinely joins cases where the state wins criminal by resolving errors in arrest in the state’s favor, typically under the good faith doctrine. You could say his overriding view is that formality and process matter most, and, if done properly, they will forgive execution errors. At least, I am suggesting that as a possibility.

In Strieff, Justice Thomas refers to good faith, but does not really invoke the doctrine. It would be novel to do so here, as it usually starts with the officer’s ex ante belief that there is a warrant. And, as Orin Kerr points out, it does not really work factually here in any event. But the fact remains that somewhere, some magistrate signed an arrest warrant. The formalities to arrest Strieff had been obeyed, and it would now be proper for the agents of the state, i.e. police officers, to arrest Strieff. Indeed, Justice Thomas says it was obligatory:

In this case, the warrant was valid, it predated Officer Fackrell’s investigation, and it was entirely unconnected with the stop. And once Officer Fackrell discovered the warrant, he had an obligation to arrest Strieff. “A warrant is a judicial mandate to an officer to conduct a search or make an arrest, and the officer has a sworn duty to carry out its provisions.” United States v. Leon, 468 U. S. 897, 920, n. 21 (1984) (internal quotation marks omitted).

Officer Fackrell’s arrest of Strieff thus was a ministerial act that was independently compelled by the pre-existing warrant. And once Officer Fackrell was authorized to arrest Strieff, it was undisputedly lawful to search Strieff as an incident of his arrest to protect Officer Fackrell’s safety. See Arizona v. Gant, 556 U. S. 332, 339 (2009) (explaining the permissible scope of searches incident to arrest).

This appears to be the heart of the decision.

What he appears to be saying is that after the issuance of a warrant, law enforcement officers are vested with the authority to arrest, regardless of whether each officer is individually aware of the warrant. The officer’s knowledge, or lack thereof, is immaterial to the state’s right to have someone like Strieff seized by way of a warrant. And the warrant authorized the officer’s arrest of Strieff, which is what happened—end of story.

While it was good fortune for the officer that the warrant existed, the stop ultimately burdened Strieff no more than had the officer been aware of the warrant or informed of the warrant by way of a license plate reader or a computer check of the license plate. In other words, the lack of the officer’s knowledge of the valid warrant put Strieff in a no worse position than he was already. Presumably, sooner or later the stop and arrest was going to happen.

The Brown framework deployed was an ill-fit here, but it was a convenient precedent that did the job. And the analysis of the third factor, regarding flagrancy, was really all about explaining how the result is not unjust. As Orin’s piece discusses, it’s a strange consideration.

Justice Kagan would be right to be concerned if her premise had been correct: “The question here is whether the prohibition on admitting evidenced is solved if the officer discovers, after making the stop but before finding the drugs, that the person has an outstanding arrest warrant. Because that added wrinkle makes no difference under the Constitution, I respectfully dissent.” But the warrant made all the difference, even if the majority opinion obscured that with ill-fitting case law.

While the officer may have lucked out, Strieff got his just deserts.

19 Comments on this post.

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  • Ben
    24 June 2016 at 10:03 am - Reply

    This is just standard ends-justify-the-means manure. This officer has no reasonable suspicion, no valid reason to stop this person. What happened afterwards or outside the officer’s knowledge is completely irrelevant to the 4th Amendment analysis. The Supreme Court has now given police officers legal cover to stop anyone they want regardless of suspicion, for a consequence-free warrant check.

  • TMM
    24 June 2016 at 10:48 am - Reply

    The question is what is the legal significance of a warrant. Under Supreme Court case law, a warrant is the gold standard. If the existence of a warrant is not enough of an attenuating circumstance for factor two of the Brown test, what is?

    The real issue in the case is the third factor — the flagrancy of the officer’s conduct. Brown predated the good faith case law, but Thomas’s opinion implicitly treats the third part as a good faith analysis (could a reasonable officer have thought that there was reasonable suspicion). More significantly, reading the opinion, there is certainly the impression that the Supreme Court thought that the local prosecutor should not have conceded that the stop was invalid. The facts recited in the opinion certainly are close to what the Supreme Court has previously found to be sufficient to establish reasonable suspicion.

  • Greg Prickett
    24 June 2016 at 1:19 pm - Reply

    This completely guts the exclusionary doctrine.

    • Scott Jacobs
      24 June 2016 at 2:40 pm - Reply

      Which is why Andrew loves it so much…

    • Andrew King
      24 June 2016 at 3:35 pm - Reply


      I don’t think so. The cop only gets bailed out of an illegal search or seizure if there is a warrant. Because you won’t know that at the stop of illegality, it’s a high risk low reward situation. It’s still too early to say, but I would imagine most prosecutors are going to educate the cops on legal stops and searches same as before.

      • Andrew Fleischman
        24 June 2016 at 4:36 pm - Reply

        Isn’t the argument you’re making equally true whenever there’s contraband? An officer who lawfully discovered the contraband, just like the officer who lawfully discovered the warrant, would be free to make the arrest. So why punish an officer who happened to unlawfully stop someone first, before he found the contraband in a non-flagrant way?

        I think the exclusionary rule is a bit like gun control. People who want to keep introducing exceptions would really rather scrap the whole thing. But we’ve made it so difficult to get relief outside of the exclusionary rule that a lawless officer, regularly committing crimes against the public, might never be successfully sued.

        Let’s flip the script for a moment. Let’s say that Strieff and his friends held the officer down, searched his pockets, and found his disciplinary record. Should they be allowed to use that evidence at trial?

        • Andrew King
          24 June 2016 at 5:11 pm - Reply

          No, I don’t think, at least not if the warrant makes all the difference. If Strieff is truly an ends justifies the means, then yeah you’d probably right and Greg is right that the exclusionary rule is dead. Because the Court didn’t seem to want to go that far, I am giving them the benefit of the doubt.

          The distinction I think the warrant makes it gave the officer the legal right to be where he was and do what he did, despite his lack of knowledge. In a broader sense, probable cause already existed. An illegal search without probable cause or a warrant cannot be justified by finding contraband which then gives rise to probable cause. In one case the actual legal justification existed in a legally cognizable way, but in the second case it didn’t.

          If that’s what this case really meant, then yeah the attenuation doctrine will swallow the entire rule.

      • Greg Prickett
        24 June 2016 at 4:49 pm - Reply

        What Andrew Fleischman said.

        I can tell you how officers are going to view this, it will be a loophole that they can use to get the guy. They are going to make a “no glove in the glovebox” stop, find something to arrest him for, and then amazingly find drugs or contraband. That’s how they work.

        • Andrew King
          24 June 2016 at 5:22 pm - Reply

          I still think that lazy patrol officers that read the case that way do so at their peril. It’s not terribly hard to find a reason to make a traffic stop, but getting a search is a little harder. I don’t read this case as generally making it easier for lazy cops to go ahead and search without a defensible justification and then expect to get bailed out by the prosecutor later.

          I can see how it may encourage a few more Terry stops, but, again, I would expect that in the absence of a warrant, suppression will occur just like before. So, I would think that it is behavior that would eventually get corrected. As I said, I don’t think prosecutors would prefer to pick up the pieces when a little more effort would have resulted in a permissible stop and search. Plus, I am curious why the officer didn’t try to approach this as a “consent stop.” That may be in the record below; I don’t know. If he had, then we probably wouldn’t even be talking about this case.

          • Donald
            25 June 2016 at 12:11 am -

            You’re either disingenuous, or a fool. Given that you’re a prosecutor, I’d bet the former.
            You know damn well what street cops are like. Not only will this trash decision lead to a lot of people getting tossed for warrants (especially in traffic court funded cities), but it will be cited every damn time a prosecutor needs to clean up a mess the cops made.
            Between Streiff and Hein, the police can arrest anyone, at any time, without worrying that any evidence will be tossed out of court.

            You should be be ashamed of yourself, but as a government lawyer you are of course incapable of shame.

      • Ben
        24 June 2016 at 5:12 pm - Reply

        High risk of what? If the cop illegally stops someone and there’s no warrant, they go on their way and almost certainly aren’t going to spend the many thousands of dollars necessary to sue the cop for violating his rights. If there is a warrant, then voila, it’s all good. There is basically no chance of any sort of negative consequence for a cop to illegally stop people and do a warrant check.

        • Scott Jacobs
          24 June 2016 at 5:18 pm - Reply

          Oh good, I only need to deal with a bullshit illegal stop.

          Well that’s just FINE…

        • Andrew King
          24 June 2016 at 5:27 pm - Reply

          High risk of suppression. I don’t think the calculus on whether a civil rights action would be successful or worthwhile has changed much, except making harder when there is a warrant.

  • Patrick Maupin
    24 June 2016 at 8:07 pm - Reply

    What about a place like Ferguson, where every black person has 3 warrants outstanding?

  • Patrick Maupin
    24 June 2016 at 8:09 pm - Reply

    I thought I was responding to Andrew King, not Greg — I obviously suck at technology.

    • Scott Jacobs
      27 June 2016 at 12:30 am - Reply

      That happens to me here when using a mobile device…

  • Brad
    25 June 2016 at 8:11 am - Reply

    I said it before, but I will say it again on this thread — anything bad for the Exclusionary Rule is good for development and expansion* of civil remedies, which is really where 4A against the police forces of America needs to go.

    Maybe Justice Thomas realizes this and maybe he doesn’t, but it doesn’t matter. Helpful decision. As Mr. Prockett says, policemen can now go, ummm, hogwild, and they will. They will catch a bunch of innocent people in the dragnet, and courts will end up being forced to take a fresh look at civil remedies against that backdrop. Justice will prevail in the long run.

    * One needed expansion of civil remedies, which is brought to mind by Justice Thomas’ opinion is that qi needs to stop protecting simple “negligence.” As you will recall the majority opinion keeps saying that the police man’s conduct was “negligence.” First, it wasn’t, but, second, and more importantly — that should not matter in a civil case — there should be police liability for negligence — maybe not punitives, but at least compensatory and disgorgement remedies.

  • TMM
    27 June 2016 at 11:26 am - Reply

    It is important to remember that qualified immunity for officers flows from Section 1983 which only came into effect after the 14th Amendment.

    In talking about causes of action under the common law at the time of the framing, Thomas is talking about state tort actions (some of which are intentional torts) and some of which are negligence. Obviously different states have different standards in their law today, but at the time of the framing — in the absence of an official license like a warrant — government officials were not immune from liability for trespass, conversion, assault, or battery.

  • Keep Qualified Immunity…For Now
    1 July 2016 at 9:13 am - Reply

    […] Court’s decision in Utah v. Strieff is still hot. But some of the discussion has moved away from the merits of Justice Thomas’ opinion. Now, some people are again discussing civil remedies for Fourth Amendment violations. This was […]