By Katie Tinto

The availability of the exclusionary rule as a remedy for unconstitutional police conduct was recently further restricted by the Supreme Court in Utah v. Strieff, ___ S. Ct. ___, No. 14-1373 (June 20, 2016). In a prior blog post, I warned of the potential of Strieff to seriously limit the availability of the suppression remedy in immigration court. Although the exclusionary rule in immigration court may not be directly impacted, the decision will likely have a detrimental effect on our immigrant communities and the manner in which they are policed.

To quickly summarize the facts: the police detained Mr. Strieff without reasonable suspicion in violation of the Fourth Amendment, and then, after running a routine warrant check with his name and date of birth, discovered an outstanding arrest warrant for a traffic violation. During the search incident to arrest on this traffic warrant, the officer found methamphetamine in Mr. Strieff’s pockets. The question in Strieff was whether the discovery of the arrest warrant following the unlawful stop was an intervening circumstance between the Fourth Amendment violation and the discovery of additional evidence, such that the narcotics found after being arrested on the warrant would not be subject to suppression under the exclusionary rule.

The Court held that the discovery of the arrest warrant was an intervening circumstance and, therefore, the exclusionary rule did not apply. Slip Op. at 10. In reaching its decision, the Court applied the exclusionary rule analysis first established in Brown v. Illinois, 422 U.S. 590 (1975), which considers whether the discovered evidence is sufficiently attenuated from the taint of the initial constitutional violation. This attenuation analysis considers three factors: the “temporal proximity” between the unconstitutional stop and the discovery of the evidence, “the presence of intervening circumstances,” and “the purpose and flagrancy of the official misconduct.” Slip Op. at 6 (quoting Brown).

The majority’s application of these three factors to the facts in Strieff and the dissents’ repudiation of the majority’s analysis is a tailor-made lesson for 1Ls in the malleability of legal doctrine and the flexibility of facts. Fortunately for immigration practitioners, the Court avoided commenting on the aspect of exclusionary rule doctrine that would have most directly hurt the exclusionary rule’s availability in immigration court: the application of exclusionary rule to identity evidence. For now at least, practitioners have a decent argument that the Court’s attenuation analysis is fact-specific and that Strieff is limited to the factual circumstance of the discovery of an arrest warrant.

But this “victory”—if it can even be considered one—is extremely minor compared to the loss our communities now face in the aftermath of Strieff. As Justice Sotomayor and Justice Kagan point out, respectively, in their dissents, holding that the discovery of an arrest warrant is an intervening circumstance provides an incentive for police officers to simply approach anyone they please in the hope that an outstanding warrant will be found, thereby giving them the legal authority to arrest and search the individual. Such policing tactics have troubling implications for low-income communities and communities of color, thousands of who have outstanding warrants, most often for minor traffic violations or the failure to pay administrative fines and fees. It also raises concerns regarding the unconstitutional stops of immigrants. In the case of members of the immigrant community, even if the unlawful stop does not uncover a warrant or evidence of any crime, given the informal cooperation between local law enforcement and federal immigration authorities in many areas of the country, the stop alone could lead to the individual being turned over to immigration enforcement. Providing an incentive to increase this type of policing, both in terms of making unconstitutional stops at the back end and issuing traffic violations and fees at the front end, is a significant loss to the exclusionary rule goal of the deterrence of police misconduct and to the larger critical conversation about race, policing, and its reform.

Commentators have rightly called Justice Sotomayor’s dissent, with her focus on the harms that law enforcement stops cause our society, a “must-read” for all criminal justice reform advocates. But her opinion is more than a mere piece of reading—it is also a call to action. In the majority’s analysis of the flagrancy of the officer’s misconduct, the Court reasoned, “there is no indication that this unlawful stop was part of any systemic or recurrent police misconduct.” Slip Op. at 8. The majority suggests that if the initial unconstitutional stop was part of a larger pattern or “dragnet search,” the exclusionary rule analysis would be different. Slip Op. at 10. Relatedly, proof of the “widespread” nature of Fourth Amendment violations was also mentioned by the Court in INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), as a potential justification for permitting the general application of the exclusionary rule in immigration court. Consequently, it is imperative, now more than ever, that criminal justice advocates and immigration advocates alike begin to document unconstitutional stops and collect data about the nature and frequency of such stops in our communities. This is by no means a simple feat. Justice Sotomayor points out that the majority fails to offer any guidance for how a defendant could prove he was part of widespread misconduct. Slip Op. at 9 (Sotomayor, J., dissenting). But if our fears about the nature of future policing—and the future of the policing of our immigrant communities in particular—come true in the years following Strieff, we must be prepared to fight back. The documentation of systemic and widespread unconstitutional police practices may be one of the few ways we have left when challenging unconstitutional policing in the courts.

Katie Tinto is an Assistant Clinical Professor of Law at UC Irvine School of Law. She is the Director of the new Criminal Justice Clinic. She previously taught at Cardozo School of Law in the Immigration Justice Clinic.