Police State, 2016: ScaliaMania Lives!

Former Supreme Court Justice Antonin Scalia might be dead but his quest to circumvent the Constitution lives on. Case in point: the latest Supreme Court ruling on the Fourth Amendment. Oh, they were calling it Utah V. Strieff, but most Americans who stayed awake during Civics class are now calling it the End of Democracy.

Bye-bye to our constitutional protection from unreasonable searches and seizures by the government.

From now on, we’re all fair game. From now on, any and every American can become one of the “usual suspects” — in any way the police see fit. And the law will back them up as never before.

In Utah v. Strieff, a police search in Utah without any probable cause gave criminal prosecutors damning evidence against a guy named Strieff.

For those readers unschooled in constitutional law, I must point out a few red flags here. In this country, police need more than hunches or gut feelings or synchronicity in order to properly conduct searches or seizures. They need to meet the criteria that “probable cause” demands. According to numerous accounts, Fackrell didn’t even have “reasonable suspicion,” he only had the suspicion that a nosy old neighbor would have. And he allowed his feelings — not facts, not logic, not appropriate police procedure — to guide his actions.

Officer Fackrell stopped and searched Strieff only because he’d left this house Fackrell had been watching. And Fackrell had only been watching this house because an anonymous source had somehow alerted law enforcement that drugs were being used in this house. So why did the cops arbitrarily believe this anonymous source when they usually ignore or dismiss tips about anything and everything else from concerned citizens?

Hmmm…that’s hard to say because the cops in Salt Lake City never gave any reasons that made legal sense. According to the legal arguments, Officer Fackrell noticed various people entering and exiting the house. That made him suspicious. Drug activity! Drug activity!

While others might have surmised an open house or an on-going community meeting or book club, Fackrell intuited that people going in and out of the house were all druggies. So he pounced on the next guy leaving the house in a way that even Supreme Court majority opinion acknowledged was illegal, unlawful, and wrong!

Without any search warrant or “probable cause” or concern for the rights of the individual, Fackrell stopped Strieff and demanded ID. Strieff cooperated and gave the policeman his driver’s license — even though citizens in this country have NEVER been legally required to carry identification papers at all times. Fackrell’s illegal stop also led to a questionable warrant check on the computer.

When Officer Fackrell discovered that Strieff had an outstanding “small traffic warrant,” he arrested Strieff. Whatever this warrant really was — unpaid traffic or speeding ticket? moving violation or expired tabs or plates on other vehicles? — the policeman decided it was enough to arrest Strieff and go through his pockets. That’s how Fackrell found meth and drug paraphernalia in Strieff's pockets.

Usually evidence obtained in this manner is considered tainted and therefore inadmissible in court. Not in this case.

Never mind that Fackrell unlawfully stopped Strieff and illegally obtained evidence that was tainted. Utah prosecutors still wanted to use the tainted evidence to convict Strieff. Because the arrest was based on the legal warrant, the state argued that the warrant — NOT the illegal stop — was the cause of discovery. Although the Utah Supreme Court agreed with Strieff, the Supreme Court overturned their ruling.

Forget about all these episodes of “Law&Order” you’ve ever seen. America has now entered a new age Police State that’s really a throwback to 17th-Century British Tyranny — thanks to ScaliaMania and all the male justices. Now suddenly, it’s OK for prosecutors to present evidence in court that’s unlawfully, i.e., ILLEGALLY, collected by the police. No more search warrants. No more “probable cause.” No more respect for the rights of the individual in this country.

What’s so surprising here is the ease with which the male justices discounted the Fourth Amendment under the guise of a tough-guy, no nonsense decision, then proudly tooted their horns in the majority opinion.

Justice Clarence Thomas reversed the Utah Supreme Court’s decision with Machiavellian logic that seemed downright un-American:

“While Officer Fackrell’s decision to initiate the stop was mistaken, his conduct thereafter was lawful,” he wrote “…Moreover, there is no indication that this unlawful stop was part of any systematic or recurrent police misconduct. To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona-fide investigation of a suspected drug house…”

ISOLATED? Really? So Thomas actually believes that this flagrant disregard for our Civil Liberties was ISOLATED?

Someday that guy is going to take both hands and pull his head out of his ass and we’re all going to be surprised at how tiny his brain really is. Anita, you were right. You were always right.

Leave it to the court’s three female justices to unite their latent grrl power to become the magnified voice of eloquent dissent.

Justice Sonia Sotomayor went to the heart of Thomas’s cluelessness in her dissent:

“We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”

Justice Elena Kagan (joined also by Justice Ruth Bader Ginsburg) wrote her own dissent that not only reinforced Sotomayor’s opinion but illuminated a true understanding of our American justice system. Kagan declared that the decision of the majority:

“[C]reates unfortunate incentives for the police — indeed, practically invites them to do what Fackrell did here. Consider an officer who, like Fackrell, wishes to stop someone for investigative reasons, but does not have what a court would view as reasonable suspicion. If the officer believes that any evidence he discovers will be inadmissible, he is likely to think the unlawful stop not worth making — precisely the deterrence the exclusionary rule is meant to achieve. But when he is told of today’s decision? Now the officer knows that the stop may well yield admissible evidence: So long as the target is one of the many millions of people in this country with an outstanding arrest warrant, anything the officer finds in a search is fair game for use in a criminal prosecution. The officer’s incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion — exactly the temptation the exclusionary rule is supposed to remove.”

But now, “reasonable suspicion” is nonexistent. With most police officers, there’s only suspicion — backed up and even justified by the courts.

Just look at the deteriorating state of community v. police relations in our country today. It’s worse than it’s ever been. Any time a cop shoots and kills an unarmed, innocent citizen, the cop almost always gets away with murder. In fact, the fatal shooting is never even called murder. It’s called “protecting and serving in the line of duty.” Or a “bad shooting.” Only very rarely does a police officer ever face a court trial with a guilty verdict. Why?

Because of the way the the law is written, that’s why. Because police work is so dangerous and so unpredictably lethal, the courts have traditionally given law enforcement the benefit of the doubt — and our laws have reflected that relentless trust and halo effect given to police officers.

Anytime an unarmed, innocent citizen gets shot and killed by police, law enforcement uses the same old phrases from the NOT GUILTY COP playbook. All the cops have to do is come up with the usual, legally approved phrases, and the juries will always find them innocent:

I thought he had a gun.
The suspect was reaching for my gun.
I feared for my life.

Remember, the laws operate on the tacit assumption that EVERY police officer is always good and just and only trying to protect and serve the public. If any attorney wants to argue that a cop isn’t a good guy, well, there’s got to be malice involved. And good luck in trying to prove that to any jury — it’s almost impossible to do at trial.

Let’s look at it from another angle, though. Suppose there’s something in my back pocket. Might be any number of things. Could be my wallet, car keys, or cough drops. Could even be an iPhone, tube of Chapstick, or roll of Lifesavers. But if a cop decided I was carrying a gun, he could legally shoot me down in cold blood and never serve any jail time — thanks to the way the law is written.

So the most effective way to hold law enforcement more accountable for shooting innocent people is to change the law. Stop automatically giving abusive, trigger-happy, stressed-out, incompetent bullies with badges the benefit of the doubt. Start holding them to a higher standard by actually changing the law.

But now, thanks to this current Supreme Court ruling, a Police State that our forefathers would have dreaded has gotten empowerment instead of admonishment.