Should incriminating evidence be used against a defendant if it was discovered in the course of an illegal police stop?

That was the question before the Supreme Court on Monday, the first day of oral arguments since the death of Justice Antonin Scalia. The court has been weakening the Fourth Amendment’s defense against illegal searches for years. Monday’s case gives the justices an opportunity to restore some of its power.

The case, Utah v. Strieff, started in 2006, when the Salt Lake City police got an anonymous tip reporting drug activity at a house. An officer monitored the house for several days and became suspicious at the number of people he saw entering and leaving. When one of those people, Edward Strieff, left to walk to a nearby convenience store, the officer stopped him and asked for his identification.

A routine check revealed that Mr. Strieff had an outstanding “small traffic warrant.” The officer arrested him based on that earlier warrant, searched him and found a bag of methamphetamine and drug paraphernalia in his pockets.

The Utah Supreme Court ruled that the drug evidence could not be used against Mr. Strieff because the initial police stop was illegal. That is, it was not supported by reasonable, individual suspicion against Mr. Strieff — regardless of the pre-existing warrant.

Evidence the police discover as a result of violating the Fourth Amendment is considered “fruit of the poisonous tree” and is suppressed under what is known as the exclusionary rule. This is a sensible way to deter the police from breaking the law to get evidence they want. But the court has created several exceptions to this rule, such as in cases where the evidence discovered was a result of a search that was based on a clerical error.

At Monday’s argument, lawyers for Utah argued that the officer’s stop of Mr. Strieff was a reasonable, good-faith mistake and that suppressing the evidence would harm society far more than it would deter other officers from making similar mistakes.

But as Justice Sonia Sotomayor pointed out during oral argument, this approach would give far too much latitude to law enforcement: “What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through, and if a warrant comes up, searching them?”

Justice Elena Kagan added that the threat of this behavior is especially serious in lower-income communities where a majority of residents have outstanding warrants for minor infractions. “If you’re policing a community where there is some significant percentage of people who have arrest warrants out on them, it really does increase your incentive to make that stop,” she said.

The exclusionary rule may be frustrating for law enforcement, but that is exactly why it is an important constitutional principle that must be defended.

Adam Lee Nemann
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Trial and Defense Attorney, Adjunct Professor of Law at Capital University, founder of Nemann Law Offices
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