Thoughts on Utah v. Strieff

From the Syllabus:

Narcotics detective Douglas Fackrell conducted surveillance on a South Salt Lake City residence based on an anonymous tip about drug activity. The number of people he observed making brief visits to the house over the course of a week made him suspicious that the occupants were dealing drugs. After observing respondent Edward Strieff leave the residence, Officer Fackrell detained Strieff at a nearby parking lot, identifying himself and asking Strieff what he was doing at the house. He then requested Strieff’s identification and relayed the information to a police dispatcher, who informed him that Strieff had an outstanding arrest warrant for a traffic violation. Officer Fackrell arrested Strieff, searched him, and found methamphetamine and drug paraphernalia. Strieff moved to suppress the evidence, arguing that it was derived from an unlawful investigatory stop. The trial court denied the motion, and the Utah Court of Appeals affirmed. The Utah Supreme Court reversed, however, and ordered the evidence suppressed.

Held: The evidence Officer Fackrell seized incident to Strieff’s arrest is admissible based on an application of the attenuation factors from Brown v. Illinois, 422 U. S. 590.

In previous posts, I’ve argued that judges are expert adjudicators. Just as we should trust the average view of plumbers over our own views on plumbing, or the average view of economists on economics, we should trust the average views of judges on adjudicating. So is the above decision optimal? Actually, I doubt that it is. The Justices on the Supreme Court voted 5-3 against suppression, but if you factor in the opinions of each judge who considered the case in lower courts, the vote appears to be 9-8 in favor of suppression.

Additionally, the majority flexes its consequentialism muscle, arguing (Thomas writing) that the exclusionary rule is socially costly. Paging Dr. Landsburg.

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