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Curious as to what the legal minds (*cough* Ivy *cough*) think of this recent 5-3 ruling from the SCOTUS that included a fairly passionate dissent from Sotomayor. To be honest, I had never heard of the attenuation doctrine before so I haven't really thought it through myself. I can certainly see both sides of it (shocking, I know) and I can see the value of it to law enforcement while also seeing the slippery slope that can lead to what Sotomayor is decrying. Breyer siding with the majority isn't too shocking as he's always been partial to law enforcement. So what's the board's opinion?

I find the whole thing confusing
So if there's a warrant for an arrest
and that party gets pulled over illegally the warrant no longer applies..?

Something like that..?

So, even if the police stop someone without reasonable suspicion, any evidence seized may be admissible?

Ibanez wrote:So, even if the police stop someone without reasonable suspicion, any evidence seized may be admissible?

Well, in this case, the officer did stop the guy illegally (even though the officer was watching a house on an anonymous tip that there was drug activity there, he didn't have a warrant to search anything - so when the Strieff guy comes out of the house and walks away, the stopping him and asking him what's going on in the house and asking for ID is the illegal part). Before he searched him, he ran the ID through the computer and then found the outstanding arrest warrant. He then arrested him on that warrant and then searched him, finding the drugs only then.

Complete and utter bullshit.

In Criminal Law class, we learned about the "fruit of the poisonous tree" doctrine with searches and seizures. I was surprised the case turned out this way. I would have predicted another 4-4 split, or perhaps 5-3 the other way.

klam dissented, I gather.

Ivytalk wrote:In Criminal Law class, we learned about the "fruit of the poisonous tree" doctrine with searches and seizures. I was surprised the case turned out this way. I would have predicted another 4-4 split, or perhaps 5-3 the other way.

klam dissented, I gather.

Yes, the attenuation doctrine and the independent source seem to be the two exceptions to the "fruit of the poisonous tree" doctrine.

I'm leaning towards dissent here as well. If the officer wanted to talk to that guy, he could do so, but getting the ID from him was a step too far. I'm not willing to go with an ID check at demand quite yet.

And yes, it's hard to tell exactly where kalm is on this issue.

So a warrant for your arrest is NOT a warrant for your arrest if you're walking out of a drug dealers house..?

Hmmm... okay that makes sense

GannonFan wrote:

Ivytalk wrote:In Criminal Law class, we learned about the "fruit of the poisonous tree" doctrine with searches and seizures. I was surprised the case turned out this way. I would have predicted another 4-4 split, or perhaps 5-3 the other way.

klam dissented, I gather.

Yes, the attenuation doctrine and the independent source seem to be the two exceptions to the "fruit of the poisonous tree" doctrine.

I'm leaning towards dissent here as well. If the officer wanted to talk to that guy, he could do so, but getting the ID from him was a step too far. I'm not willing to go with an ID check at demand quite yet.

And yes, it's hard to tell exactly where kalm is on this issue.

Serious question here, I thought you had to identify yourself to law enforcement already?

https://www.flexyourrights.org/faqs/whe ... sk-for-id/

As of 2013, 24 states had stop-and-identify laws. Regardless of your state’s law, keep in mind that police can never compel you to identify yourself without reasonable suspicion to believe you’re involved in illegal activity.

But how can you tell if an officer asking you to identify yourself has reasonable suspicion? Remember, police need reasonable suspicion to detain you. So one way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, leave immediately and don’t answer any more questions.

Chizzang wrote:So a warrant for your arrest is NOT a warrant for your arrest if you're walking out of a drug dealers house..?

Hmmm... okay that makes sense

This is way above my pay grade, but is sounded like the warrant is kind of the missing link here.

“discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

In the military we called that "ABA"....answer by accident.

89Hen wrote:https://www.flexyourrights.org/faqs/whe ... sk-for-id/

As of 2013, 24 states had stop-and-identify laws. Regardless of your state’s law, keep in mind that police can never compel you to identify yourself without reasonable suspicion to believe you’re involved in illegal activity.

But how can you tell if an officer asking you to identify yourself has reasonable suspicion? Remember, police need reasonable suspicion to detain you. So one way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, leave immediately and don’t answer any more questions.

I usually just ask if they're planning on doing a full cavity search, and if they say no, I ask why they're wasting my time.

89Hen wrote:

Chizzang wrote:So a warrant for your arrest is NOT a warrant for your arrest if you're walking out of a drug dealers house..?

Hmmm... okay that makes sense

This is way above my pay grade, but is sounded like the warrant is kind of the missing link here.

“discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

Yeah, the officer didn't know the guy he stopped to talk to had an outstanding warrant, he only became aware of that when he asked the guy for identification and checked the ID. That's when the warrant popped up. Clearly, if the officer knows the person without asking for ID then it's game on relative to the warrant. That wasn't the case here.

It is interesting. Since he was "detained" initially and not "arrested", under state law in Utah he could be asked for his name. It's vague whether he would have to answer or not, because of the stickiness of the 5th amendment. If he's not likely to incriminate himself by providing his name (i.e. he has nothing to hide) then he's not covered by the 5th. If he does know that he has that outstanding arrest warrant and that by giving his name that warrant is likely to be uncovered, then he is protected by the 5th amendment and can withhold his name. Of course, the police officer is then entitled to use that refusal to answer as one, but not only, causes to move from a "detention" to an "arrest".

Interesting, I don't believe there is a stop and identify law in PA - about half the states have some version of Utah's stop and identify and there's no pattern as to which states have them and which don't.

89Hen wrote: This is way above my pay grade, but is sounded like the warrant is kind of the missing link here.

“discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

Of course an arrest warrant is grounds to arrest someone. I don't think anyone disputes that. The arrest warrant is more of a red herring than a "missing link."


The issue is whether the cop had the authority to search the person. I think the 4th amendment is pretty clear. But, maybe I am more of a strict constructionist on this than most.

Skjellyfetti wrote:

89Hen wrote: This is way above my pay grade, but is sounded like the warrant is kind of the missing link here.

“discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

Of course an arrest warrant is grounds to arrest someone. I don't think anyone disputes that. The arrest warrant is more of a red herring than a "missing link."


The issue is whether the cop had the authority to search the person. I think the 4th amendment is pretty clear. But, maybe I am more of a strict constructionist on this than most.

I didn't read the whole thing. Didn't he search him because he was arresting him for the outstanding warrant?

GannonFan wrote:Yeah, the officer didn't know the guy he stopped to talk to had an outstanding warrant, he only became aware of that when he asked the guy for identification and checked the ID. That's when the warrant popped up. Clearly, if the officer knows the person without asking for ID then it's game on relative to the warrant. That wasn't the case here.

I get what you're saying, but I guess I have less sympathy for somebody who has an outstanding warrant. If you're pulled over for a broken light on your car, they can ask you for ID. A lot of times they really don't do this to issue tickets, they do it so they can pull you over and see if maybe you're under the influence or if your ID turns something up. I realize in that case you're technically "breaking a law" and not just exiting a house, but this wasn't just any house. It was a house for which there was reported suspicion of nefarious activity, no? There's really not a whole lot of difference there IMO.

Skjellyfetti wrote:

89Hen wrote: This is way above my pay grade, but is sounded like the warrant is kind of the missing link here.

“discovery of the arrest warrant attenuated the connection between the unlawful stop and the evidence seized incident to arrest.”

Of course an arrest warrant is grounds to arrest someone. I don't think anyone disputes that. The arrest warrant is more of a red herring than a "missing link."


The issue is whether the cop had the authority to search the person. I think the 4th amendment is pretty clear. But, maybe I am more of a strict constructionist on this than most.

The search itself was perfectly fine - at that point he had arrested him. The question was whether he should've been arrested in the first place.

89Hen wrote:

GannonFan wrote:Yeah, the officer didn't know the guy he stopped to talk to had an outstanding warrant, he only became aware of that when he asked the guy for identification and checked the ID. That's when the warrant popped up. Clearly, if the officer knows the person without asking for ID then it's game on relative to the warrant. That wasn't the case here.

I get what you're saying, but I guess I have less sympathy for somebody who has an outstanding warrant. If you're pulled over for a broken light on your car, they can ask you for ID. A lot of times they really don't do this to issue tickets, they do it so they can pull you over and see if maybe you're under the influence or if your ID turns something up. I realize in that case you're technically "breaking a law" and not just exiting a house, but this wasn't just any house. It was a house for which there was reported suspicion of nefarious activity, no? There's really not a whole lot of difference there IMO.

I have no sympathy for the guy in question in the case. He already had an arrest warrant out for him and he was clearly part of the drug activity that was going on in the house where the cop was watching because someone had tipped him off there could be drug activity there.

But the bigger question is the idea, not the guy involved in this particular case. I think I'm generally on the side that there has to be real suspicion of a criminal act, even if it hasn't happened yet, before you ask for a person's name (not ID, but the name, verbally). Just randomly asking people, or say asking people of color, isn't enough. Now in this case, I'm not sure there's enough to have asked the guy for his name just on the idea that he had exited a house you had a tip about. The cop could've talked to him and asked questions, which is always legal, and I guess if he seemed high or if there was a smell from the drugs or if the answers amounted to something he could put all that together and go for the name. Don't know if this guy knew enough to ask if he was free to go either.

89Hen wrote:https://www.flexyourrights.org/faqs/whe ... sk-for-id/

As of 2013, 24 states had stop-and-identify laws. Regardless of your state’s law, keep in mind that police can never compel you to identify yourself without reasonable suspicion to believe you’re involved in illegal activity.

But how can you tell if an officer asking you to identify yourself has reasonable suspicion? Remember, police need reasonable suspicion to detain you. So one way to tell if they have reasonable suspicion is to determine if you’re free to go. You can do this by saying “Excuse me officer. Are you detaining me, or am I free to go?” If the officer says you’re free to go, leave immediately and don’t answer any more questions.

"AM I BEING DETAINED!?!?!"

Sent from my SAMSUNG-SM-G920A using Tapatalk

GannonFan wrote:

89Hen wrote: I get what you're saying, but I guess I have less sympathy for somebody who has an outstanding warrant. If you're pulled over for a broken light on your car, they can ask you for ID. A lot of times they really don't do this to issue tickets, they do it so they can pull you over and see if maybe you're under the influence or if your ID turns something up. I realize in that case you're technically "breaking a law" and not just exiting a house, but this wasn't just any house. It was a house for which there was reported suspicion of nefarious activity, no? There's really not a whole lot of difference there IMO.

I have no sympathy for the guy in question in the case. He already had an arrest warrant out for him and he was clearly part of the drug activity that was going on in the house where the cop was watching because someone had tipped him off there could be drug activity there.

But the bigger question is the idea, not the guy involved in this particular case. I think I'm generally on the side that there has to be real suspicion of a criminal act, even if it hasn't happened yet, before you ask for a person's name (not ID, but the name, verbally). Just randomly asking people, or say asking people of color, isn't enough. Now in this case, I'm not sure there's enough to have asked the guy for his name just on the idea that he had exited a house you had a tip about. The cop could've talked to him and asked questions, which is always legal, and I guess if he seemed high or if there was a smell from the drugs or if the answers amounted to something he could put all that together and go for the name. Don't know if this guy knew enough to ask if he was free to go either.

What if I knew you had a warrant out for your arrest and you were at a bar and I called the cops and said you might want to check out the guy in the Hamilton Rox shirt at the bar because he may have a warrant out for his arrest? Is that a tip that's OK to check out?

GannonFan wrote: The search itself was perfectly fine - at that point he had arrested him. The question was whether he should've been arrested in the first place.

The question of whether or not they should have arrested him hinges on the fact of whether or not they could search him, no?

The contention is over the detention - not subsequent arrest.

Prosecutors conceded there was no reasonable suspicion to detain him.

They say it didn't matter. 4th amendment disagrees, imo. No reasonable suspicion, no probable cause.

89Hen wrote:

GannonFan wrote:
I have no sympathy for the guy in question in the case. He already had an arrest warrant out for him and he was clearly part of the drug activity that was going on in the house where the cop was watching because someone had tipped him off there could be drug activity there.

But the bigger question is the idea, not the guy involved in this particular case. I think I'm generally on the side that there has to be real suspicion of a criminal act, even if it hasn't happened yet, before you ask for a person's name (not ID, but the name, verbally). Just randomly asking people, or say asking people of color, isn't enough. Now in this case, I'm not sure there's enough to have asked the guy for his name just on the idea that he had exited a house you had a tip about. The cop could've talked to him and asked questions, which is always legal, and I guess if he seemed high or if there was a smell from the drugs or if the answers amounted to something he could put all that together and go for the name. Don't know if this guy knew enough to ask if he was free to go either.

What if I knew you had a warrant out for your arrest and you were at a bar and I called the cops and said you might want to check out the guy in the Hamilton Rox shirt at the bar because he may have a warrant out for his arrest? Is that a tip that's OK to check out?

That's different because the actual suspicion there would be that the guy has a warrant, and he has been described reasonably well by you. What would make it even more ironclad would be if you provided his name or other information that the police could use to determine that was in fact an active warrant before approaching.

I'm kind of surprised the SCOTUS even took this case because it is difficult. As Clitzang pointed out, the guy had a warrant. So a judge has already determined that there is probable cause to arrest the guy. But fishing expeditions are not allowed per the protections against unlawful searches and seizures (like stopping everybody on the street and checking them all for warrants).

I think what muddies the water here is that SCOTUS focused on this case by asking the wrong questions, in my useless opinion. The warrant isn't invalidated when its discovery is made in an unconstitutional way- in other words, the fact that he was improperly stopped has no bearing on the facts underlying the warrant.

What I think the court should have focused on should have been whether or not suspicious activity (whether from a tip or from direct observation) justifies an investigative detention (in many cases, it does, if SCOTUS precedent carries any weight). I'm not entirely comfortable with an anonymous tip that there's drug activity in a house gets me to the point where I can detain someone walking out of that house. I might want to build a little more reasonable suspicion first. But at the end of the day, what is happening here is the defendant is trying to put the warrant forth as fruit of the poisonous tree in an attempt to have the warrant itself invalidated as a reason for his arrest. That's why the SCOTUS should not have chased this case from the angle they did.

In that respect, I would side with the dissent in terms of principle, but with the majority in terms of the outcome.

GannonFan wrote:
And yes, it's hard to tell exactly where kalm is on this issue.

That's what happens when you're intentionally cryptic

He's like the Louis Farrakhan of the Palouse

full of sound and fury... etc etc

Frankly,
as a white guy wearing a nice shirt and looking freshly bathed most of the time
I really enjoy police profiling - I find it appropriate and reasonable