The nation’s police seem to feel uncomfortable with the fact that they are now under constant scrutiny. The scrutiny they are under is not by their internal investigations departments or by their supervisory agencies, but by the public.  We do not believe the scrutiny is undeserved; that it’s simply a byproduct of what FBI Director James Comey calls the “viral video effect.” In our view, as criminal defense lawyers, today’s viral videos are simply exposing police practices that have been longstanding and shrouded in law enforcement secrecy and denials.


Take the police practice of using pretense stops to conduct further investigation or checks for outstanding warrants.


Warrant Checks with Reasonable Suspicion to Stop and Detain


Last year, the Supreme Court held that the police enjoy the authority to run routine warrant checks if they had “reasonable suspicion ordinarily demanded to justify detaining an individual” in the first place.


Warrant Checks without Reasonable Suspicion to Stop and Detain


But what about those situations where police lack a “reasonable suspicion” to stop and detain someone but do so anyway just to determine if the individual has outstanding warrants, allowing them to then conduct a search incident to the arrest?


There are millions of outstanding arrest warrants in existence throughout the country.  They stem from offenses ranging from simple traffic tickets to serious violent felonies and originate in communities from the smallest to the largest. The police are intimately aware of this fact. That’s why they are trained, or allowed, to run routine arrest warrant checks to determine if a detained individual has an arrest warrant. It is virtually “standard operating procedure” in every police department to ask for identification and run a warrant check on any individual they encounter during the course of their work.


But there is an inherent problem in this arrest warrant check process.


Unlawful Detention, Arrest and Search


Too often the stops made by the police are unlawful. Still, the police use them to run an arrest warrant check – and if they discover there is an outstanding warrant, they use it as justification to search the arrested individual for suspected contraband. Searches of individuals are allowed if done incident to arrest and fall outside of the traditional warrant requirements.  The contraband evidence, of course, is then used to prosecute the individual of criminal wrongdoing.


Police are Trolling for Crime


The police are aware that there is a significant likelihood that they will discover an outstanding warrant when they stop and detain certain people in certain areas. In effect, they are trolling for wrongdoers. They are using their knowledge about the probability of outstanding warrants to stop and detain otherwise innocent individuals in order to find warrants, based on previous wrongdoing, in order to justify the arrest and ensuing search of these individuals.  This is all done in hope of finding evidence of current illegal activity.


That’s what happened with Utah resident E. Strieff. He left a residence that was under surveillance by a police detective named Doug Fackrell. The detective had monitored the residence for approximately “three hours” for a “week or so” before he saw Strieff exit the house. Fackrell did not know anything about Strieff: whether he lived in the house or owned it or even how long he had been in the house. As one Utah court put it: the detective “knew nothing” about Strieff “other than he left the house.”


No Reason to Stop


All Fackwell had was an unsubstantiated suspicion that drugs were being sold out of the house. During one of his short surveillance periods, the detective made a unilateral decision to detain the next person he saw leaving the house. That person happened to be Edward Strieff. The detective would later testify that he detained Strieff because “he was coming out of the house that I had been watching and I decided that I’d like to ask somebody if I could find out what was going on [in] the house.’


No Suspicion or Probable Cause, Just Random Decision to Stop Next Person


Fackrell conceded he “had no reason to stop [Strieff] other than that he had left the house” and that he had done nothing to arouse any “suspicion that he was committing a crime other than leaving the house.”


The detective stopped Strieff and asked for identification. He then asked a local police dispatcher to run an arrest warrant check. The detective said this was his “standard procedure” when he stopped anyone. In this instance, Fackrell learned that Strieff had had an outstanding “minor traffic warrant.”


Arrested for Minor Traffic Warrant, Searched


The detective arrested Strieff and then searched him. He found methamphetamine and drug paraphernalia. The State of Utah charged Strieff with drug and paraphernalia possession. His attorney filed a motion to suppress the evidence because it was an unconstitutional detention and search and was therefore the “the fruit of an unconstitutional detention.”


Prosecutors Concede Detention Unconstitutional, But Argue Search is Permissible


State prosecutors conceded the detention was unconstitutional and the state trial court also found the detention unconstitutional. The court, however, found that Strieff’s outstanding traffic warrant was an “intervening circumstance” that made suppression of the drug evidence an “inappropriate remedy.”


Strieff pled guilty, preserving his right to appeal the trial court’s denial of his suppression motion. The Utah Supreme Court reversed his conviction, finding that the discovery of the traffic warrant during a “routine warrant check” was not an intervening circumstance. The court concluded that an “intervening circumstance” is a “voluntary act by the defendant, such as a confession or a consent to search.”


Court of Appeals Reverses Conviction, Outstanding Warrant not Intervening Circumstance


In essence, the court concluded that the discovery of “an outstanding warrant does not qualify” as an intervening circumstance that would allow admissibility of the evidence because “it is not an independent act that is sufficiently removed from the primary illegality to qualify as intervening.”


SCOTUS Agrees to Hear Case


The State of Utah sought, and secured, certiorari review before the U.S. Supreme Court. The court heard oral arguments on the issue on February 22nd. The case will be decided within the next several weeks.


The case is being closely watched by defense attorneys. Of course, it is our hope that the Supreme Court will let stand the well-reasoned decision by the Utah Supreme Court.




NOTE: Background facts about this case were gleaned from the brief attorneys for Edward Strieff has filed with the U.S. Supreme Court.