As the United States Supreme Court's latest term came to a close in June, the court decided a critically important issue concerning illegal police stops, a case captioned Utah v. Strieff. The majority of the United States Supreme Court decided that police officers who carry out illegal stops can run a warrant check on a wrongfully detained person, arrest that person if they have an open warrant, and therefore search that person even though he or she was illegally detained in the first place. Since the killing of Michael Brown in Ferguson, Missouri two summers ago, law enforcement practices in minority and poor communities have been arguably the most contentious national issue in recent times. Utah v. Strieff brings the relationship between law enforcement and marginalized neighborhoods before the highest court in the land. Justice Sonia Sotomayor's decision is worthy of your attention.
No one argued before the United States Supreme Court that the police had any evidence that Edward Strieff had broken any law. He was detained anyway. This is not an unusual occurrence in poor and minority communities. Questionable stops build distrust between law enforcement and the neighborhoods they serve. It is a chasm that has risen to confrontational levels across the country. The majority of the Supreme Court justices glossed over this serious problem and sanctioned this illegal practice.
Since 1961, in the seminal case of Mapp v. Ohio, evidence taken by police that is a byproduct of an illegal stop or arrest is generally inadmissible in a criminal trial. There are exceptions to this rule, but Justice Clarence Thomas' majority opinion uses the exceptions to effectively invalidate the rule in Strieff.
The message to the police in the majority opinion in Strieff is to go ahead and ignore the law and illegally stop anyone you target and run a warrant check on them. If they find nothing, then they release the person stopped after a demeaning denial of liberty. If the person has a warrant, they arrest that person and look for other reasons to charge them.
It was Justice Sotomayor who had the courage to write something else—to speak for those who struggle in an unfair world and in an oppressive criminal justice system, for people who are underpaid for their work, or are behind in their rent, and believe that we don't have to accept that law enforcement owns our identity, or our children, or their future, or their bodies.
It was Justice Sotomayor who chose to write about the unfairness in this decision. How, as a country, can we overlook the unfairness of sanctioning illegal police stops against our citizens? Much of the majority opinion is based on the fact that this was an isolated circumstance. It isn't. As Justice Sotomayor points out, there are 7.8 million warrants outstanding in the country, often minor traffic offenses. To use the term Justice Sotomayor uses over and over again, "exploiting our fellow citizens" shouldn't be tolerated. As she writes, in "his search for lawbreaking, the officer in this case himself broke the law."
Many of us can imagine the pain of a loved one targeted and wrongly arrested by the police, or with the advent of the cell phone, watch in horror as the police kill someone else on the news or social media. To frame her dissent from validating illegal police stops, Justice Sotomayor relies on our best American writers—W.E.B. Dubois, James Baldwin, and Ta-Nehisi Coates—for a response. To allow the opinion in Strieff to be the law of the land is to imply that "you are not a citizen of a democracy but of a carceral state, just waiting to be catalogued."
You should take the time to read Justice Sotomayor's opinion because a member of the highest court in our land has addressed one of the most important issues of our time. As our country struggles with the terrible violence inflicted by the police on our citizens, and the terrible violence inflicted on the police themselves, Justice Sotomayor sides firmly with the constitutional principles that have been in place for decades. The police should be excluded from using evidence seized from illegal police behavior. Otherwise, we are sanctioning illegal government conduct at a time when our country is questioning police practices.
Unlawful police stops corrode all of our civil liberties but especially those of us who are poor or a member of a minority. Article 26 of the Maryland Declaration of Rights provides similar protections against illegal searches and seizures as in the federal Bill of Rights. Maryland courts have historically interpreted our state constitutional rights in compliance with, or from the Latin in "para materia" with the federal constitution. This is one case in which the Maryland Court should side with Justice Sotomayor and democracy over the prevailing Supreme Court decision—the fairness of our criminal justice system demands nothing less, as do its most vulnerable citizens.
David Walsh-Little is the Chief Attorney of the Felony Trial Division of the Office of the Public Defender in Baltimore.