Professor Jeffrey Swartz: Recent Supreme Court Decision to Allow Police Search Evidence Surprising

Blog author WMU-Cooley Law School Professor Jeffrey Swartz served as a county court judge for Miami-Dade County, Florida, Professor Jeffrey Swartzbefore joining the WMU-Cooley faculty. Professor Swartz is also a frequent legal expert in the media. Professor Swartz shares his opinion on the recent Supreme court decision  ruling in Utah v. Streiff.

“Not only does the ruling surprise me,” stated Swartz, “it surprises me more that Justice Stephen G. Breyer sided with the conservative majority. It appears that individual freedoms under the Fourth Amendment are becoming less important in the minds of the justices on the Supreme Court.”


On Monday, June 20, 2016, the U.S. Supreme Court ruled in a 5-3 decision that courts may include evidence of a crime, even if the evidence was found during a search that was not constitutional. The ruling in the case now gives police more opportunities to stop individuals and search them to find evidence, even if it’s not related to the original intent of the search. This ruling essentially changes the 1968 SCOTUS ruling in Terry v. Ohio, which allows police officers to stop a suspect on the street and frisk them in order to prevent a crime, or for personal protection of a police officer – but also protects persons from unreasonable searches and seizures aimed at gathering evidence.

“Essentially, the Supreme Court now has ruled that evidence found during searches that were previously protected under the fourth amendment can now be used,” summed up Professor Swartz.

“Typically Justice Breyer would not side with the Court’s conservative judges,” continued Swartz. “There are other Supreme Court decisions expected soon, including those on the topic of abortion. It will be interesting to see if he sides with the conservative justices to gain support on something else down the road.”

“In Strieff, the State of Utah conceded and the court concurred that the officer did not have a reasonable and articulable suspicion to seize the defendant. Despite that the officer approached and detained Strieff by asking him his name and radioing for ‘wants and warrants’ in hopes of finding something to keep Strieff in custody. When a traffic warrant was found, he arrested Strieff and searched him, finding drugs.

“The Utah Supreme Court eventually set aside the conviction saying that there was no attenuation between the original seizure and the arrest and search, therefore the evidence was subject to suppression.

SCOTUS found that attenuation existed. They stated the warrant was the attenuation. Thus, there was no direct connection between the original seizure and the search incident to the arrest on the warrant. Without saying it, this is an instance where the court is carving exceptions on very technical issues. This decision, coupled with Heien v. North Carolina from 2104, in which the court applied a ‘mistake of law’ theory,  indicates the court’s relaxation of the Terry ‘reasonableness’ test and the reasonable and articulable standard for a Terry Stop.

“These two cases signal the court is receding from a traditional Terry analysis. Ultimately, one has to wonder whether new police officers will be trained in the Terry, or without such training will courts rely on the officer’s good faith and subjective belief. Have we returned to the days of ’round up the usual suspects and check them out?’ We will see.”

Media Outlets Go to News & Media to arrange an interview with Professor Swartz.

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