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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If I Love the Legal System So Much, Why Don’t I Marry It?

As a consultant, my job is simple: increase mean, decrease variance. In order to do this, I need to have some expertise in how the criminal justice system (CJS) works. I think the best way to understand the CJS is to break the system up into critical component parts. Each component part involves interactions between agents, and each agent has goals. Using court data, we can refine and parameterize our agent models until we have a predictive service to offer our clients. Many of the conclusions of this type of analysis are surprising – for example, the finding that judges are better adjudicators than most people believe. I frequently point out that the CJS today doesn’t seem wildly different from the CJS most reformers pine for.

This should not be construed to mean I think the CJS is optimal. Rather, I think judges and prosecutors behave basically like the types of agents you would want in an optimal CJS. The real problem isn’t with the adjudicators, it’s with the arresting authorities and the laws. The arresting authorities have an easy enough fix in principle; we could just tie their pay to their successful prosecution rate (or any derivative of this plan). Would this fix magically give us an optimal CJS? No, but it would likely help fight the pervasive over-arresting of blacks by police. The more fundamental problem is the law generally. The optimal CJS is that which maximizes aggregate utility; by backward induction the optimal set of laws is that which maximizes aggregate utility.

I submit that the current set of laws is nowhere close to the utility maximizing set. While I think many laws are undesirable and should be repealed, the worst feature of our legal regime seems to be the given penalties for breaking most laws. We all know long prison sentences are overrated; the wise Alex Tabarrok prefers this alternative (do read his entire post):

I favor more police on the street to make punishment more quick, clear, and consistent. I would be much happier with more police on the street, however, if that policy was combined with an end to the “war on drugs”, shorter sentences, and an end to brutal post-prison policies that exclude millions of citizens from voting, housing, and jobs.

I suspect such a policy regime would move us unambiguously closer to the optimal regime (i.e. more deterrence and more utility), but it neglects the problem of police behavior. Presumably, the social costs would still be born disproportionately by populations of color.