Introduction

The Supreme Court’s recent Utah v. Strieff decision declined to apply the exclusionary rule to evidence seized as a result of an arrest that followed an unconstitutional stop. The opinion, in conjunction with Justice Sotomayor’s dissent, has reanimated discussions regarding when, if ever, criminal defendants can expect the exclusionary rule to apply.1 When applied, the exclusionary rule renders inadmissible evidence recovered through “unconstitutional police conduct”; the evidence’s exclusion reinforces the Fourth Amendment’s ban on unreasonable searches and seizures.2 Unlike most discussions of Strieff, which focus on its implications for criminal defendants,this Essay examines how Strieff will impact civil rights plaintiffs’ ability to recover damages for unconstitutional stops under 42 U.S.C. § 1983.

Strieff is just one of several recent cases in which the Court has declined to apply the exclusionary rule. The Court’s decreased application of the exclusionary rule has been accompanied by its increased faith in the threat that Section 1983 civil liability poses to law enforcement officers.3 For example, in Hudson v. Michigan, the Court declined to apply the exclusionary rule to a knock-and-announce violation.4 It described how Section 1983 liability, expanded significantly since it was first made available in 1961’s Monroe v. Pape decision,5 would stand in for the exclusionary rule in producing the desired deterrent effect.6

In Fourth Amendment jurisprudence, both the exclusionary rule and Section 1983 are cited as different means to the same hypothetical end: deterring future constitutional violations. The exclusionary rule suppresses illegally seized evidence in circumstances where applying the rule is such a severe penalty that the risk of future application prevents illegal law enforcement conduct.7 The rule only applies when the need for its deterrent effect outweighs the rule’s “substantial social costs,”8 including the risk that the guilty go free.9 In contrast, Section 1983 purportedly deters law enforcement officers from engaging in constitutional violations with the threat of having to pay damages to the victim of the violation.10

Like Hudson, Strieffassumes that when the exclusionary rule is not applied, Section 1983 will adequately deter future unconstitutional stops. This Essay challenges that conclusion. First, it examines how Strieff may limit civil rights plaintiffs’ ability to recover meaningful damage awards for the events caused by unconstitutional stops. Second, it explains that in a civil rights case arising out of a Strieff-like scenario, civil rights plaintiffs will only be able to recover nominal damages. Third, it explains that the damages limitation will discourage attorneys from representing civil rights plaintiffs like Edward Strieff. It concludes that Section 1983 is an inadequate surrogate for the exclusionary rule, and that as a result, absent the exclusionary rule, there is no real deterrent preventing police power abuse.

I. the majority opinion declines to apply the exclusionary rule

In an opinion by Justice Thomas, the Strieff Court declined to apply the exclusionary rule to incriminating evidence seized during a search incident to an arrest, even though the arrest followed a suspicionless investigatory stop.11 In December 2006, Salt Lake City narcotics detective Douglas Fackrell spent a week surveilling a home occupied by individuals that he believed to be dealing drugs. Fackrell stopped Edward Strieff after Strieff was seen exiting the home and walking to a nearby convenience store. Following the stop, Fackrell relayed information from Strieff’s Utah identification card to a police dispatcher, and discovered that Strieff was subject to an arrest warrant.12 Strieff was quickly arrested and searched, and Fackrell found methamphetamine and drug paraphernalia on his person.13 During suppression motion hearings, the prosecution conceded that the original stop was made without reasonable suspicion.14 Still, the Court declined to exclude the evidence seized following the arrest because the original stop was “sufficiently attenuated” by the valid warrant for Strieff’s arrest.15

In a powerful dissent, Justice Sotomayor argued that the Fourth Amendment should prohibit admitting evidence seized as a result of an unconstitutional stop.16 Like the Utah Supreme Court, she would have excluded the evidence because “the officer exploited his illegal stop” to discover it.17 She described the humiliation, helplessness, fear, and loss that such suspicionless stops cause their targets, who are most often people of color: the individuals stopped are not “citizen[s] of a democracy but the subject[s] of a carceral state.”18

Justice Kagan’s dissent warned that, following Strieff, an officer who lacks reasonable suspicion for a stop will make it anyway because the stop “may well yield admissible evidence.”19 That is, in Strieff-like circumstances, the exclusionary rule’s deterrent effect is gone. Before Strieff,an officer about to stop someone without reasonable suspicion might have paused to consider the risk of rendering relevant evidence inadmissible. After Strieff, that same officer has no reason to hesitate.

The Court rejected the dissenters’ view and Strieff’s argument that, without the exclusionary rule’s deterrent effect, “police will engage in dragnet searches,”20 stopping people for no reason in an attempt to discover outstanding warrants and to make arrests based on those warrants. The Court ultimately concluded—unjustifiably—that Section 1983civil liability deters suspicionless stops intended to trap people with outstanding warrants.21

II. striefflimits section 1983 recovery and cancels its deterrent potential

Though the Court has often referred to Section 1983damages as powerful deterrents,22 Section 1983does not necessarily deter the kind of unconstitutional stop described in Strieff. Before Strieff, an unconstitutional stop would typically lead to the exclusion of the drugs found on Strieff’s person.23 Without key evidence, a prosecution for a crime like Strieff’s (drug possession) was more likely to fail. Now, a motion to suppress will not result in the exclusion of incriminating evidence like that found on Strieff. Because the incriminating evidence is now likely admissible, a conviction also becomes more likely. Recognizing that he might be convicted if the drug evidence were ultimately admitted, Strieff “conditionally pleaded guilty” to lesser charges while reserving his right to appeal the denial of his suppression motion.24

A guilty plea (even to lesser charges) and a conviction establish probable cause for arrest, thus barring a plaintiff from bringing a false arrest claim pursuant to Section 1983.25 Successful false arrest claims allow plaintiffs to recover compensatory damages “for loss of liberty” and “physical and emotional distress.”26 Wrongful arrest and imprisonment claims have resulted in significant damages awards that compensate plaintiffs for each hour of confinement at rates ranging from $1,500 to $8,889 per hour.27 The Second Circuit affirmed a compensatory damages award of $360,000 for false arrest “where the plaintiff was in custody for 19 hours, [and] had not been physically assaulted, but had experienced sleeplessness, anxiety, and suicidal ideation as a result of his arrest.”28 If a plaintiff like Strieff pleads guilty during his criminal trial, his arrest becomes privileged, and he can no longer recover the substantial damage awards available for false arrest. In fact, he may only be able to recover nominal damages, at best.

In any Section 1983 action, a plaintiff must overcome the nearly insurmountable obstacle presented by a defendant’s ability to assert qualified immunity, which “protects ‘all but the plainly incompetent or those who knowingly violate the law.’”29 If a qualified immunity defense is defeated, a Section 1983 plaintiff basing his or her claim for damages on an unconstitutional stop that leads to an arrest will nevertheless be limited to damages caused by the unconstitutional stop alone.30 These damages differ significantly from those recoverable for false arrest. They must be “directly related to the invasion of [a plaintiff’s] privacy.”31 More importantly, they are limited to the short time period in which the unconstitutional stop occurs.

In Strieff, the stop did not cause physical injury or property damage, and lasted for a fraction of the short time that passed between the discovery of drugs on Strieff and the initial detention.32 Moreover, as Professor Nancy Leong has stated, some Fourth Amendment violations, like the suspicionless stop suffered by Strieff, “may be difficult to quantify in financial terms.”33 Were the matter tried, the damages “may appear to be nominal to some juries.”34 In other words, although Strieff identified Section 1983 liability as a viable substitute for the exclusionary rule’s deterrent effect, that liability will likely only result in nominal damages. If civil suits only produce nominal damages, then they are unlikely to deter constitutional violations.35 Plaintiffs will also struggle to recover punitive damages for stops that last only minutes.36 Punitive damages require proof of a defendant’s recklessness—evidence that will be difficult to gather from interactions that are constitutionally illegitimate but limited in time and likely unaccompanied by any physical injury to the plaintiff.

Given the lack of monetary damages available to plaintiffs like Strieff, will any lawyer file the suits Strieff envisions as having enough of a deterrent effect to prevent unconstitutional stops? The Court has speculated that suits resulting in nominal damages may still deter unconstitutional damages because the attorneys’ fees in such cases could be significant enough to act as a deterrent.37 The Court has also assumed that civil rights actions yielding nominal damages are still attractive to civil rights counsel because counsel may be able to recover attorneys’ fees.38 This assumes, of course, that there are attorneys willing to litigate cases like Strieff’s in the first place.

The availability of attorneys’ fees does not necessarily make Strieff-like cases attractive. To obtain attorneys’ fees, a civil rights plaintiff must prevail. Prevailing requires obtaining a judgment or a consent decree through which the plaintiff receives a “‘judicially sanctioned change in the legal relationship of the parties.’”39 Private settlement agreements excluded from an order of dismissal will not justify fee awards.40 Like all civil cases, most civil rights cases settle. Civil rights defense attorneys know how to craft terms that purposefully limit the potential for fee recovery. They know how to ensure that an order of dismissal excludes settlement terms indicating that a plaintiff has prevailed. Typically, the parties will file a stipulation of dismissal that includes settlement terms and precludes attorneys’ fees.41 The court will then enter an order dismissing the case, with no mention of the private settlement terms. If a plaintiff is not a prevailing party, then his or her counsel is entitled to nothing more than a contingency fee, which is typically one-third of the plaintiff’s settlement recovery. A fraction of an already small recovery is hardly enough incentive to take on a civil rights suit that will involve difficult motion practice surrounding qualified immunity.

Finally, representing a client like Strieff in a civil rights action presents significant practical difficulties. The statute of limitations for his unconstitutional stop claim may run while Strieff is still incarcerated, meaning that his civil rights action will proceed, at least in part, while Strieff is difficult to reach. Contact with a client like Strieff is expensive, requiring travel to and from prison. Discovery is difficult to obtain from an incarcerated client. If the case proceeds to trial, and the plaintiff wishes to appear, plaintiff’s counsel will need to litigate a myriad of issues such as how and where the plaintiff will be held during the trial,42 whether the plaintiff will be handcuffed at trial,43 whether the plaintiff will be allowed to don a suit when in the presence of the jury,44 and whether the plaintiff will be able to appear at trial at all.45 Incarceration imposes a real burden on the attorney-client relationship—one that may be heavy enough to dissuade competent counsel from taking on a case involving a plaintiff like Strieff.

Conclusion

Strieff ensures that suspicionless stops “attenuated” by the existence of an arrest warrant will not trigger application of the exclusionary rule, resulting in the potential admission of evidence seized following a search incident to a warrant-based arrest. As Justice Sotomayor warns, this will likely result in numerous suspicionless stops made solely to run warrant checks. If a warrant exists, the suspicionless stop becomes retroactively sanctioned. It will not result in evidence exclusion; it might in fact result in a criminal conviction.

Stops made for the purpose of performing warrant checks are common, and disproportionately target people of color.46 The warrants in question often arise from minor infractions, such as an unpaid ticket for biking on a sidewalk. Strieff has implicitly endorsed stops made only to perform warrant checks. The victims of unconstitutional stops will be left without any meaningful remedy in their criminal trials or as civil rights plaintiffs. With neither Section 1983 damages nor application of the exclusionary rule in criminal trial available as deterrence, Strieff has, perhaps inadvertently, cleared the way for continued unconstitutional stops.

Katherine A. Macfarlane is an Associate Professor of Law, University of Idaho College of Law. She is grateful to her colleagues Helane Davis, Jack Miller and Nancy Luebbert for their support and friendship, and to April Hu and her team for their thoughtful edits and hard work. From 2011 to 2013, she worked for the New York City Law Department’s Special Federal Litigation Division, where she served as counsel of record on numerous § 1983 actions, including several that involved outstanding warrants.

Preferred Citation: Katherine A. Macfarlane, Predicting Utah v. Streiff’s Civil Rights Impact, 126 Yale L.J. F. 139 (2016), http://www.yalelawjournal.org/forum/predicting-utah-v-streiffs-civil-rights-impact.