By David and Johanna Zapp
Utah v. Strieff, 136 S.Ct. 27 (2015), did not overrule Terry. v. Ohio (stop and frisk). But it sure made it harder for defendants to succeed on motions to suppress evidence in circumstances that started out unlawfully.
That is because the Court held that an officer’s discovery of an outstanding arrest warrant constitutes an intervening act that generally will break the taint of the original unlawful stop.
However, the Court ALSO said that whether the officer acted in good faith in conducting the original stop is an important factor in determining whether the evidence should be suppressed. It specifically noted that officers who deliberately conduct sweeps, or stop a person without any individualized suspicion at all, hoping to find people with warrants would not be acting in good faith. Also, officers who engage in an ongoing “practice” of unlawful Terry stops would not be acting in good faith.
The Court suggested that, had the officer been unable to articulate a specific, legitimate law enforcement reason for the stop, or had he not been close to having reasonable suspicion, the case might have come out differently.
The potential for abuse is obvious. An officer could stop a person without any individualized suspicion, find a warrant, and later claim that he or she DID have some individualized suspicion. It also does not provide much incentive for officers to refrain from stopping people that approach, but do not reach, the individualized suspicion required by Terry. And I don’t have to tell you whom they will be stopping.