The U.S. Supreme Court issued a significant Fourth Amendment ruling on June 20, reducing the populace’s protections from admittedly unconstitutional police conduct. The 5-3 decision in Utah v. Strieff is already reverberating among court watchers, legal commentators, and even ordinary folks who follow such noteworthy events. My own reaction is dismay over the majority decision and strong agreement with Justice Sotomayor’s powerful dissent.

This decision comes down during a period of nationwide attention on police interactions within our communities—particularly police interactions with people of color. Many of these interactions have occurred, as in Strieff, between police officers and unarmed pedestrians.  Consequently, new Supreme Court pronouncements on the limits of police power in those sidewalk encounters are keenly important. The holding in Strieff will allow police officers to stop citizens on the street, demand their identification, check to see if they have any outstanding warrants (even for minor traffic infractions) and, if so, then search them. Any evidence found can then be used to prosecute them.  This outcome will be permissible, even if the interaction begins—as it did in Strieff—with officers breaking the law by making a stop without any reasonable suspicion.

The Strieff case came to the Court with a very straightforward set of facts.  In December 2006, South Lake City, Utah police received an anonymous tip regarding possible drug activity at a residence.  An officer responded by watching the house for about three hours over the course of a week. He observed visitors arriving and leaving within a few minutes, which aroused his suspicion that the visits were consistent with drug sales.  At some point, the officer saw Mr. Strieff leave the house. Notably, the officer never saw Mr. Strieff enter the house and hence had no reasonable suspicion that Strieff was one of the frequent visitors, rather than being tied to the residence in some other, innocuous manner. Nonetheless, in clear violation of constitutional proscriptions against suspicionless detentions, the officer approached Strieff, ordered him to stop, and began questioning him. He took Strieff’s identification and asked police dispatch to check for outstanding warrants. When the dispatcher reported that Strieff was the subject of a minor traffic warrant, the officer arrested him, searched him and found a baggie of methamphetamine and drug paraphernalia in his pockets.  Strieff was prosecuted and convicted of drug charges, in spite of defense efforts to suppress the evidence.

The legal issue is set out succinctly by Justice Kagan at the outset of her dissenting opinion: “If a police officer stops a person on the street without reasonable suspicion, that seizure violates the Fourth Amendment. And if the officer pats down the unlawfully detained individual and finds drugs in his pocket, the State may not use the contraband as evidence in a criminal prosecution. That much is beyond dispute. The question here is whether the prohibition on admitting evidence dissolves if the officer discovers, after making the stop but before finding the drugs, that the person has an outstanding arrest warrant.”

In its 5-3 decision, the Supreme Court answered in the affirmative, holding that such evidence is admissible.  Justices Thomas authored the majority opinion, joined by Chief Justice Roberts and Justices Kennedy, Breyer and Alito.  Two dissents were penned, one by Justice Sotomayor and the other by Justice Kagan.  Justice Ginsburg joined in both dissents, except for Part IV of the Sotomayor opinion.

All members of the Court agreed that resolution of the issue turned on application of an exception to the exclusionary rule—the attenuation doctrine, originally announced in Brown v. Illinois. As the majority described the doctrine: “Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained.”  Justice Kagan explained that the doctrine represents the Court’s effort, “to mark the point at which the discovery of evidence becomes so attenuated from the police misconduct that the deterrent benefit of exclusion drops below its cost.”

In applying the three-part doctrine, all members of the Court came to the same, irrefutable conclusion regarding the close temporal proximity between the police officer’s illegal act and the discovery of the evidence.  As Justice Sotomayor wrote in her dissent: “The officer did not ask Strieff to volunteer his name only to find out, days later, that Strieff had a warrant against him. The officer illegally stopped Strieff and immediately ran a warrant check.” Justice Kagan added: “Minutes after the unconstitutional stop, the drugs were discovered.”

However, the majority and the dissenters part ways dramatically in their application of the remaining two factors in the attenuation doctrine.  In my view, the dissenters are correct.

In her dissent, Justice Kagan employs a baseball analogy to briskly dispense with the State of Utah’s arguments in favor of admitting the unconstitutionally-obtained evidence. First, Justice Kagan notes that the obvious temporal proximity between the officer’s misconduct and the discovery of the evidence brings up strike one.  She then observes that the calculated nature of the officer’s decision to detain Strieff reveals a purposefulness of conduct that yields strike two.  Justice Kagan condemns this as action, “taken with so little justification that the State has never tried to defend its legality.” Finally, on the third factor, she concludes that the discovery of the outstanding warrant can only be fairly characterized as an eminently foreseeable consequence of the stop, rather than an intervening circumstance.  She points out that Utah officers are trained to check a detainee’s warrant status and that such a check is likely to be a fruitful endeavor, given that the state has almost 200,000 outstanding warrants. Justice Kagan’s conclusion thus leads to strike three and the State strikes out.

Justice Kagan and Justice Sotomayor both denounce the majority’s reliance on the Court’s 1984 Segura decision to support its misapplication of the attenuation doctrine. Justice Kagan bluntly states: “Segura lacks any relevance to this case.” Justice Sotomayor explains that, “In Segura, the agents’ illegal conduct had nothing to do with procurement of the search warrant and their illegal entry into the petitioner’s apartment did not contribute in any way to discovery of the evidence seized under the warrant.”

Justice Kagan delivers a compelling warning at the close of her dissent: The majority opinion “creates unfortunate incentives” for the police to violate the Constitution.  After Strieff, an officer who has no reasonable suspicion but wants to stop someone for investigative purposes has an incentive to conduct an unlawful stop, anyway.  He knows that if the targeted person is “one of the many millions of people in this country with an outstanding arrest warrant,” any evidence he finds will not be suppressed.  That is precisely the ill that the exclusionary rule was designed to prevent.

As much as I appreciate the precision and clarity of Justice Kagan’s dissent, I am especially impressed by Justice Sotomayor. She conducts a suitably careful and intelligent analysis, but does so in a voice that speaks not only to the legally trained, but also to the ordinary people who are most impacted by the Court’s Fourth Amendment jurisprudence.

For example, in describing the officer’s conduct, Justice Sotomayor states: “In his search for lawbreaking, the officer in this case broke the law” and, “When lawless police conduct uncovers evidence of lawless civilian conduct, the evidence must be excluded from trial . . . Two wrongs don’t make a right.”  Such plain statements are especially welcome in this case. Cocktail party chatter reveals that many non-lawyers surprisingly believe that a police officer’s violation of bedrock constitutional law is less significant than a citizen’s violation of a criminal statute.  Justice Sotomayor’s language corrects any such misunderstanding.

In her stirring rebuttal to the majority decision, Justice Sotomayor writes: “Most striking about the Court’s opinion is its insistence that the event here was ‘isolated’ with ‘no indication that this unlawful stop was part of any systemic or recurrent police misconduct.’ Respectfully, nothing about this case is isolated.”  Justice Sotomayor then proceeds to demonstrate three powerful facts of every-day life in this country: (1) outstanding warrants are surprisingly common; (2) the enormous number of warrants can be used by police to stop people without cause and (3) many of those unconstitutional stops are the product of institutionalized police training procedures. Those realities show why the negative impact of the Strieff decision is potentially so profound.

The section of Justice Sotomayor’s opinion that has garnered the most attention is Part IV, and deservedly so. This is the part of her opinion most directly addressed to each of us, not as legal analysts, but as individual members of society, bound together by a shared interest in preventing unlawful stops and the severe consequences that can flow from them.

Justice Sotomayor informs us that the Supreme Court has given police officers “an array of instruments to probe and examine you.”  She warns that, “when we [the Court] condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.”  She describes how traumatic police stops can be, with degrading full body frisks, demeaning jail episodes, and the potential “civil death” of an arrest record, even for the innocent.

Justice Sotomayor presents the most gripping section of her argument in the final three paragraphs.  She explains that the fact that the defendant in Strieff is white shows that we are all at risk of being subjected to these violations of our dignity.  She then pivots to observe: “It is no secret that people of color are disproportionate victims of this type of scrutiny,” citing Michelle Alexander’s acclaimed critique of mass incarceration, The New Jim Crow.  Justice Sotomayor references “the talk” that generations of black and brown parents have given their children: warning them about how to avoid injury or death at the hands of police officers.  She cites a century of contemplations on race by respected scholars and writers: W.E.B. DuBois’ seminal 1903 sociological work, The Souls of Black Folk; James Baldwin’s major 1963 essay collection, The Fire Next Time; and Ta-Nehisi Coates’ much-heralded 2015 work, Between the World and Me.  Citing to a quartet of African American intellectuals on the timeless issue of race and policing is unprecedented in the two hundred-year plus history of U.S. Supreme Court jurisprudence.  In doing so, Justice Sotomayor sends a powerful message that the perspective and values of communities of color matter, even in the chambers in the highest court in the land. Justice Sotomayor concludes her dissent by urging us to recognize that “the countless people who are routinely targeted by police” are not “isolated;” that unlawful police stops “corrode all our civil liberties and threaten all our lives.” In closing, Justice Sotomayor eloquently advances the unifying goal of creating a justice system that works for everyone.

Personally, in reflecting on Utah v. Strieff, rather than feeling completely demoralized by the wrongly-decided majority opinion, I find myself energized by both dissents and especially uplifted by Justice Sotomayor’s appeal to our shared humanity.

Ronald C. Tyler is Associate Professor of Law and Director of the Criminal Defense Clinic at Stanford Law School. Before joining the faculty in 2012, he was an assistant federal public defender with the Office of the Federal Public Defender for the Northern District of California, where he had a 22-year-long career.