By Katie Tinto
Immigration scholars and practitioners should pay close attention to the outcome of Utah v. Strieff, a Fourth Amendment case argued before the U.S. Supreme Court two weeks ago. 357 P.3d 532 (Utah 2015), cert. granted, 136 S. Ct. 27 (U.S. Oct. 1, 2015) (No. 14-1373). In this case, the police detained Mr. Strieff without reasonable suspicion, and then, after obtaining his identification, ran a routine warrant check on his name and discovered an outstanding arrest warrant for a traffic violation. During the search incident to arrest on the traffic warrant, the officer found methamphetamine and drug paraphernalia in Mr. Strieff’s pockets.
At first glance, Strieff presents a straightforward criminal procedure question regarding the scope of the Fourth Amendment exclusionary rule: Is the discovery of the arrest warrant, as a result of a routine warrant check after an unlawful stop, an intervening circumstance between the Fourth Amendment violation and the discovery of additional evidence, such that the evidence is not subject to suppression under operation of the exclusionary rule? The answer to this question not only has the potential to dramatically affect the scope of the exclusionary rule in criminal proceedings, it also has the potential to drastically limit—if not essentially end—the availability of the exclusionary rule as a remedy in immigration court for egregious violations of the Fourth Amendment.
The exclusionary rule’s primary purpose, as the Supreme Court has repeatedly asserted in recent years, is to deter future misconduct by police officers. As counsel for Mr. Strieff points out, and as Justice Sotomayor suggested in oral argument, holding that the discovery of an arrest warrant removes the taint of the Fourth Amendment violation from any evidence subsequently discovered, would provide an incentive for law enforcement to simply approach anyone they pleased—in violation of the Fourth Amendment—in the hope that an arrest warrant would be found, thereby giving them the legal authority to arrest and search the detained individual. The lack of the suppression remedy for the initial unconstitutional stop would encourage the police to conduct unlawful stops in order to identify an individual and run a database search for outstanding warrants. Several Justices on the Court appeared to agree with Mr. Strieff’s counsel that this scenario has particularly troubling implications for communities that have a high percentage of people with outstanding warrants, most often for mere traffic violations. Moreover, this prospect raises serious concerns for communities that are heavily policed, especially in light of what we know about the racial and class composition of those more frequently stopped by the police. Given that immigrant community members often fall into this category of individuals whose lives are entangled with local law enforcement, this aspect of Strieff alone warrants our scrutiny.
But the Strieff decision raises an even more troubling possibility for immigration law practitioners and the operation of the exclusionary rule in immigration court. The availability of the suppression remedy in immigration court is already very limited. In immigration court, in order to warrant the suppression of evidence, the noncitizen must first demonstrate an egregious violation of the Fourth Amendment. Only after jumping this high hurdle can he or she then seek to suppress evidence by application of the exclusionary rule. When discussing the scope of the exclusionary rule in immigration court, it is important to recognize the type of evidence that is most often at issue when a noncitizen asks for the suppression of evidence. Removal proceedings comprise the overwhelming majority of matters before the immigration court. When seeking to remove a noncitizen from the country, the government has the evidentiary burden to prove the identity of the individual in court and the fact that he or she is not a citizen of the United States. Thus, identity evidence—that is, evidence of a person’s name, date of birth, and country of origin—is the primary evidence, if not the only evidence, introduced by the government. In the context of a suppression hearing in immigration court, upon a judicial finding of the requisite constitutional violation, the noncitizen then moves to suppress all identity evidence (e.g., birth certificate, foreign passport, statements of identity) under operation of the exclusionary rule. As I explain in my article, Policing the Immigrant Identity, 68 Fla. L. Rev. __ (forthcoming 2016), federal courts currently disagree on whether and how the exclusionary rule applies to identity evidence in immigration court. But a decision in favor of the government’s position in Strieff would render much of this important debate and exclusionary rule doctrine moot. Consequently, what is already an extremely limited remedy for egregious constitutional violations could be rendered virtually meaningless in the large majority of cases.
Buried in the Strieff fact pattern is the critical point that the police must first learn a person’s name and date of birth in order to run his or her name through a routine warrant check. The government’s view in Strieff is that a person’s name is not suppressible. In oral argument, Justice Ginsburg suggested to government counsel that, if that argument is right, “then the police could stop anyone and say, whether I have reasonable suspicion or not, I want to know your name—and that’s not suppressible—then do the warrant check, which you say is an intervening circumstance. So it seems that your argument is…is arming the police with asking every person what is your name and doing a warrant check.” Oral Argument at 8:14, Utah v. Strieff, No. 14-1373, available at https://www/oyez.org/case/2015/14-1373.
This bleak prediction is of vital significance to immigration advocates. Today, a “routine warrant check” allows an officer to discover much more than whether there is an outstanding arrest warrant. Local law enforcement officers have access to a wide array of linked computer databases that provide relevant identity evidence to the government, including civil immigration records, state motor vehicle information, and data from consulates, foreign embassies, and social networking platforms. See Policing the Immigrant Identity, supra. Very soon, if not already, almost all immigrant identity evidence needed by the government in immigration proceedings will be discoverable via database searches conducted by local police officers, as well as federal immigration enforcement. If the Court agrees with the government in Strieff, and holds that the discovery of the name of the individual and the act of running that name through a police database is an intervening circumstance that breaks the causal chain between the Fourth Amendment violation and the subsequently discovered evidence, the vast majority of immigrant identity evidence will be admissible in immigration court, despite the judicial finding of an initial egregious Fourth Amendment violation.
To be sure, the question whether identity evidence and a person’s name and date of birth can be suppressed is a complex one in existing exclusionary rule jurisprudence, and I am somewhat simplifying the analysis for my purposes here. For a more developed analysis, take a look at Part I of Policing the Immigrant Identity. But a Supreme Court case that could lend strong support to the argument that an incredibly large amount of immigrant identity evidence is outside the reach of the exclusionary rule is one which merits our attention.
Katie Tinto is an Associate Clinical Professor of Law at Cardozo School of Law. She teaches in the Immigration Justice Clinic, a clinic focused on the intersection of criminal and immigration law. Prior to entering academia, she was a public defender in Los Angeles.
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