In Searing Dissent, Sotomayor Calls Out Police Practices That Target Minorities

Supreme Court Justice Sonia Sotomayor wrote a searing — and at times, wrenching — dissent in a Supreme Court illegal-stop-and-search case in which she accused the conservative majority of giving “officers an array of instruments to probe and examine you.”

“When we condone officers’ use of these devices without adequate
cause, we give them reason to target pedestrians in an arbitrary manner,” she wrote. “We also risk treating members of our communities as second-class citizens.”

She was responding to a majority opinion issues Wednesday which in effect loosened the exclusionary rule, meaning the suppression of certain evidence obtained illegally in order to deter law enforcement from engaging in unconstitutional policing practices.

The case, Utah v. Strieff, weighed whether evidence that Utah resident Edward Strieff was carrying narcotics was admissible in court because the drugs were found after the officer conducted an illegal search of the individual. Strieff argued his Fourth Amendment rights had been violated with the admission.

After stopping and searching Strieff, who was leaving a house the officer was monitoring on a tip of possible drug dealing activity, the officer ran a warrant-check on Strieff’s driver’s license and found he had a warrant for a traffic violation. A five-justice majority — that included liberal Justice Stephen Breyer, as well as the four Republican-appointees — said the warrant made the evidence admissible, even though the initial stop and search lacked reasonable suspicion.

“The discovery of that warrant broke the causal chain between the unconstitutional stop and the discovery of evidence by compelling Officer Fackrell to arrest Strieff,” the majority wrote. “And, it is especially significant that there is no evidence that Officer Fackrell’s illegal stop reflected flagrantly unlawful police misconduct.”

Sotomayor, in her dissent, warned not to be “soothed by the opinion’s technical language,” as she said the case “allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even
if you are doing nothing wrong.”

Sotomayor said that the court had downplayed the broader effects the ruling could have by not recognizing the millions of outstanding warrants for minor offenses.

She was joined in most of her dissent by Justice Ruth Bader Ginsburg (who also joined a dissent penned by Justice Elena Kagen). But, in the final portion of Sotomayor’s dissent, she said she was “[w]riting only for myself, and drawing on my professional experiences.” There, she expounded upon the “severe consequences” the unlawful stops in question have, including being “degrading” and causing “indignity.”

“Although many Americans have been stopped for speeding or jaywalking, few may realize how degrading a stop can be when the officer is looking for more,” Sotomayor, the first Latina justice on the Supreme Court, said. “This Court has allowed an officer to stop you for whatever reason he wants—so long as he can point to a pretextual justification after the fact.”

Since being appointed to the court by President Obama in 2009, Sotomayor has earned the reputation of being particularly attuned to how the criminal justice system affects marginalized communities. Her dissent, citing various cases, detailed how the stops felt to the person being targeted.

She confronted the racial implications of the policing practices — including, what is known as “the talk” minority parents give their children about law enforcement — even as this case concerned a white defendant.

She accused the majority opinion of “legitimizing the conduct that produces this double consciousness,” and of telling “everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time.”

Read the majority opinion and dissents below:

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