The State of the Exclusionary Rule

Even though a police officer unlawfully detained a Utah man without probable cause, the drug evidence that later was discovered in the man’s pocket could be used against him in court, the United States Supreme Court  in a 5-3 ruling held that the evidence should not be suppressed.  Justice Sotomayor, who wrote a strong dissent  that the law should prohibit, not encourage, police tactics that especially burden communities of color. The exclusionary rule is weakened but survives, barely

The National Law Journal reported:

In an impassioned dissent, Sotomayor cited a report on last year’s unrest in Ferguson, Missouri, and wrote about “the talk” that parents of color give to children about how to behave in the presence of police — a recurring theme in the current debate over policing and race. It was a rare example of a justice drawing current events into an opinion. Justice  Thomas who wrote the majority opinion  did not directly engage with Justice  Sotomayor’s arguments.

“For generations, black and brown parents have given their children ‘the talk,’ ” Sotomayor wrote in Utah v. Strieff, “instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.”

Justice Sotomayor added, “This case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” A “carceral state” is prison-like.

She said a Justice Department report found that “in the town of Ferguson, Missouri, with a population of 21,000, 16,000 people had outstanding warrants against them.” Sotomayor also cited works ranging from “The Souls of Black Folks” written by W.E.B. Du Bois in 1903 to “Between the World and Me,” the 2015 book by Ta-Nehisi Coates.


The officer’s lack of any specific suspicion of Mr. Strieff, Justice Thomas wrote, was a result of “good-faith mistakes.” The illegal stop was, at worst, “an isolated instance of negligence.”


Read more here.

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