[Editor's note: for this guest post we again welcome Jeremy Christiansen (see here for a previous post). Mr. Christiansen was a law clerk at the Utah Supreme Court at the time it decided Strieff.]
The internet has been all ablaze following Justice Sonia Sotomayor’s scathing dissent in Utah v. Strieff. Numerous commentators have criticized the majority’s decision (e.g., here, here, here, and here), which held that evidence found incident to an arrest after discovering an outstanding arrest warrant was admissible under the attenuation exception to the exclusionary rule, despite the fact that the warrant check was run only after a unconstitutional stop by the officer.
Evan Bernick over on the Federalist Society Blog (here), joins in and uses Strieff, rightly, to highlight a remedial problem that has been growing for decades. As Bernick notes, “[t]he rise of qualified immunity and the decline of the exclusionary rule has given us a status quo of rights without remedies that undermines the supremacy of the Constitution and is extraordinarily menacing to the countless Americans who find themselves at the mercy of arbitrary police power.” Amen. But I have to, partially, part ways with Bernick over the conclusion that there is “[n]o easy solution to [the] problem.”
I am not sure my solution is necessarily “easy,” whatever that means. But I do think there may be a solution, and it lies in state constitutional law. In a forthcoming article in the Hawaii Law Review, I argue that the majority of state constitutions share an original meaning as to their search and seizure provisions (every state has such a provision). Unsurprisingly, these constitutions generally did not originally contemplate an exclusionary remedy—they contemplated a constitutional tort remedy (As Akhil Amar has been arguing for years with respect to the Fourth Amendment). And perhaps even more importantly, that tort remedy seems to have been not only self-executing (eliminating sovereign immunity problems) but also unfettered by any sort of modern conception like qualified immunity.
First, textually and structurally, these state constitutional provisions clearly applied more broadly than an exclusionary-rule paradigm permits. The text protects “the people,” or “the citizens,” or “[e]very person,” or “[e]very subject,” and is in no way limited to criminal defendants. That stands in structural contradistinction to the rights of “the accused,” found in every state constitution. There is nothing to suggest that search and seizure rights would be as limited as they have functionally become.
Second, state case law from the relevant time period overwhelmingly backs this point up, as has been noted by other scholars (e.g., here). When state supreme courts were facing the novel idea of an exclusionary remedy for search and seizure violations, they almost uniformly rejected it, noting that the remedy lies in tort. So, for instance, as early as 1875, in the then-Kingdom of Hawaii, a defendant attempted to have her conviction tossed out because the search warrant used to find the evidence “was issued on an insufficient affidavit.” Rex v. Eser, 3 Haw. 607, 607 (1875). The Supreme Court of the Kingdom of Hawaii affirmed the conviction, holding that “[t]he questions raised as to the proper method of taking out and executing a warrant to search for [illegal contraband], can be decided in an action for damages by the prisoner against the officer serving it, but not in the case before the Court.” Id. at 608. Courts only grew more explicit about tort remedies as time went on. See, e.g., People v. Mayen, 205 P. 435 (Cal. 1922).
Third, the case law from the eighteenth and early nineteenth centuries confirms that state constitutions provided a tort cause of action as a remedy for unreasonable searches and seizures (including punitive damages if the violation was willful), and that plaintiffs brought these claims successfully. See, e.g., Doane v. Anderson, 15 N.Y.S. 459, 460 (Gen. Term 1891); Weyer v. Wegner, 58 Tex. 539 (1883), Frazier v. Parsons, 24 La. Ann. 339, 341 (1872); Hang Lung Kee & Co. v. Bickerton, 4 Haw. 584 (1883); Larthet v. Forgay, 2 La. Ann. 524, 525 (1847); Anonymous, 12 Am. Dec. 31 (Ala. 1821).
Fourth, this tort cause of action was likely “self-executing,” meaning that it was in no need of legislative action before it could be enforced. The right to be free from an unreasonable search or seizure under the state constitution was “vouchsafed to the citizen by the constitutional provision.” State v. Tonn, 191 N.W. 530, 535 (Iowa 1923) (emphasis added); Krehbiel v. Henkle, 121 N.W. 378 (Iowa 1909) (holding it was “thoroughly well settled” that “a violation of this right . . . therefor gives the injured party a right of action”). The self-executing nature of this cause of action likely takes care of any sovereign immunity problems. See, e.g., Gray v. Va. Sec’y of Transp., 662 S.E.2d 66, 73 (Va. 2008) (expressing the common state constitutional sentiment that where a provision is “self-executing” it “thereby waive[s] the [State]’s sovereign immunity”).
Fifth, courts that elaborated on the rights protected by search and seizure provisions were deeply worried about dignitary, privacy, and reputational harms associated with unreasonable searches and seizures. The Strieff majority never makes any mention of the harm visited on someone whose Fourth Amendment rights are violated, seemingly downplaying them by calling the officer’s conduct mere “errors in judgment [that] hardly rise to a purposeful or flagrant violation” of the Fourth Amendment. But it is Justice Sotomayor’s dissent that is in tune with the concerns that state supreme courts saw as being at the heart of illegal searches and seizures (privacy and dignitary harm). Justice Sotomayor notes that “few may realize how degrading a stop can be when the officer is looking for [evidence of a crime.” She goes on about the “indignity of the stop” and being implicitly told one “look[s] like a criminal,” as well as the “humiliation” associated with having your body potentially probed “[a]s onlookers pass by.” Compare that with the observations of the Alabama Supreme Court in 1821: “Can we conceive of any act better adapted to wound the sensibility and destroy reputation? It is the natural and immediate consequence of the unlawful and malicious entry and search of the plaintiff’s dwelling. He may have sustained no pecuniary loss; but the injury fixes on him the eye of public suspicion, inflicts a rankling wound on his feelings, and tends to prostrate his character.” Anonymous, 12 Am. Dec. 31. Other courts, in upholding damage awards, similarly concluded that illicit searches and seizures represented a “wrong to [a person’s] reputation and an insult for which the law gives a remedy.” Krehbiel v. Henkle, 129 N.W. 945, 945 (Iowa 1911); see also Doane, 15 N.Y.S. at 460 (upholding damages award and recognizing that the plaintiff’s “privacy” was harmed and that she was “grossly humiliate[d]” and “could not have been subjected to a coarser indignity”); Larthet, 2 La. Ann. at 526 (1847) (upholding damages award that exceeded property damage because “the jury undoubtedly assessed [the damages] with reference also to the injury to the plaintiff’s feelings, and the disturbance of his family”). This list goes on and on. And it is significant, because the severe privacy, dignitary, and reputational costs associated with a demeaning police shake-down provide a solid basis for securing a meaningful damages award.
Finally, unlike with modern qualified immunity doctrines, state courts of the past seemed to be unimpressed with an argument that the violation was done in good faith. To be sure, one court cautioned that “[s]uits in damages against sheriffs, whose duties are delicate, are cautiously entertained, lest the efficiency of the law be impaired,” Frazier, 24 La. Ann. at 341. “[B]ut,” the court continued, “the declaration in the constitution, that the ‘right of the people to be secure in the persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated,’ would be a mockery” if courts were too lenient on offending officers. Id. This stands in stark contrast to the majority’s reasoning in Strieff: that the officer “was at most negligent” making only “two good-faith mistakes.” Justice Sotomayor’s dissent sounds much more like state court judges of the mid eighteenth century. Compare Sotomayor’s Dissent at 7 (“The majority cases [the officer’s] unconstitutional actions as ‘negligent’ . . . . But the Fourth Amendment does not tolerate an officer’s unreasonable searches and seizures just because he did not know any better.”), with Simpson v. MCaffery, 13 Ohio 508, 522 (1844) (en banc) (“A trespass may be committed from a mistaken notion of power, and from an honest motive to accomplish some good end. But the [Ohio search and seizure provision] tolerates no such abuse of power, nor excuses such act.”).
I agree that the exclusionary rule is justifiable only in terms of its (alleged) deterrent effect, and thus it makes no sense to exclude evidence where it is unlikely to have such an effect. But the reality of the toxic mixture of qualified immunity and an exclusionary-rule remedy for Fourth Amendment violations is that many, many people are, subject to arbitrary police power with no recourse.
My proposed solution is that state courts (at the behest of enterprising plaintiffs’ lawyers) begin to rely on the original meaning of their state constitutions as a means of filling the remedial gap left by the “rise of qualified immunity and decline of the exclusionary rule.” State constitutional rights are independent of federal rights. So perhaps we could engage in a trial period in which the two systems exist simultaneously: an exclusionary remedy in criminal proceedings via the Fourth Amendment, and a true tort remedy (unencumbered by qualified immunity) via state constitutions. This would allow the courts and the public to weigh the costs and benefits in a comparative way that would be more helpful than trying to compare immunity-burdened tort regimes (like Bivens and § 1983) with an exclusionary-rule one. In this way, (as Bernick recognizes is necessary) I think we can more closely hue to Chief Justice Marshall’s observation, that “[t]he very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receive an injury.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803); see also Sotomayor’s Dissent at 12 (“[U]nlawful police stops corrode all our civil liberties and threaten all our lives.”).