Forget Stop-and-Frisk: The Trump Supreme Court's True Threat to Fourth Amendment Protections

When discussing the Fourth Amendment under Trump's upcoming presidency, commentators tend to remain fixated on Trump's remarks in which he calls for a universal stop-and-frisk program. (See, e.g., coverage here and here). I have already blogged that Trump's apparent proposal for a national stop-and-frisk program would be unconstitutional and it is unclear how Trump would implement such a program. Indeed, to do so would almost certainly require the commandeering of state authorities, which would violate the Tenth Amendment -- which Trump vowed to protect in a statement released earlier today.

If Trump appoints judges who adopt Justice Scalia's approach to the Fourth Amendment, this will likely lead to lower Fourth Amendment protections through limits on the exclusionary rule. The Roberts Court has steadily eroded this rule, which prohibits the introduction of evidence that is discovered as a result of a Fourth Amendment violation. Scalia was a notable opponent of the rule, and commentators noted that his death and eventual replacement could represent a possible turning point for the exclusionary rule.

Indeed, even without Justice Scalia, the Court in Utah v. Strieff held 5-3 that an officer's admittedly wrongful detention of a suspect did not warrant the exclusion of evidence discovered after the officer called in the suspect's name and found that there an outstanding warrant for the suspect. The Court held that the search incident to the arrest on the warrant was far enough attenuated from the initial, wrongful stop that the drugs found on the defendant's person were admissible.

If Trump appoints Justices like Justice Scalia who are hostile to the exclusionary rule, I expect that Strieff's logic will soon be extended to other common law enforcement scenarios. For instance, a Court with Trump appointees would likely uphold as constitutional a search in a case in which an officer stops a suspect in a "high drug area" without any other basis for suspicion, calls in the suspect's identity, finds an outstanding warrant, and discovers drugs during a search incident to arrest on the warrant.

Evidence of flagrant or systemic police misconduct -- which was absent in Strieff -- will also likely be absent from the case described above. Overworked defense attorneys who do not explore an officer's history of searches and seizures combined with carefully crafted police reports will reduce the chances of finding flagrant violations of the Fourth Amendment on a case-by-case basis. And I do not suspect that conducting studies on departments to determine the existence of systemic search-and-seizure misconduct will be high on Trump's list of priorities for the Department of Justice.

Those who are concerned about the future of Fourth Amendment protections should avoid getting too caught up in Trump's stop-and-frisk rhetoric. While Trump's flippant disregard for the Constitution warrants criticism and concern, Trump's Supreme Court is most likely to erode Fourth Amendment protections by following trends established long before Trump's presidency was on anybody's radar.