Legal Case Summary

We'll hear argument next in case 14, 13, 73, Utah versus Strife. Mr. Green? Mr. Chief Justice, and may it please the court. Courts typically apply the exclusionary rule to suppress unlawfully seized evidence. The question here is whether to suppress evidence lawfully seized in a search incident to a warrant arrest. Because the arresting officer found the warrant in a stop later judged to be unlawful. Under this court's attenuation analysis, such evidence is admissible. When, as here, the predicate stop was not flagrant but resulted from an objectively reasonable miscalculation. Extending the exclusionary rule. What was subjectively reasonable about it? Well, your Honor. The police officer admits that the person he saw coming out of the house of question wasn't doing anything. He didn't know that he lived there. He didn't know what he had done if anything. He didn't even really know that there was drug dealing going out in the house. He was trying to figure that out. So what was objectively reasonable about stopping this man? Justice Sotomayor, we've admitted that this was a miscalculation, but it was a close call. If the officer here had stopped the first person coming out of the house after receiving the tip, that would have been objectively unreasonable under this court's case and decision in Alabama versus White. But this person wasn't the first person he saw come out of the house. He'd received the anonymous tip and then had proceeded to corroborate it through three hours of surveillance and observation over the course of the ensuing week. And all the traffic he saw during those three hours was the same short state traffic that was reported in the tip. Based on his training and experience, that activity was consistent with drugs. It was the interesting and awaited to see whether this was also a short state visitor. I think you would have- I don't see how this is any different than stopping the first person you see. Well, I think, Your Honor, as we've admitted, I think if he hadn't seen it and it were short state, I think we may well be reasonable suspicion. And I think that's why the prosecutor here conceded that it wasn't. But it wasn't close call based on everything he had seen to that point. And in these circumstances, we think that's why where the predicate conduct was a result of misconduct that was not- What's going to stop police officers if we announce your rule and your rule seems to be, once we have your name, if there's a warrant out on you, that's an attenuating circumstance under every circumstance. What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through and if a warrant comes up searching them. I think Justice Sotomayor, I think there are two answers to that question

. First, I think the R rule- An officer can never count under R rule on finding a warrant. So there is no incentive for him to make that stop. If there's no warrant on the stop, it's awful. If you have a town like Ferguson where 80 percent of the residents have minor traffic warrants out, there may be, and it's a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID. Let me see your name and let me hope, because I have an 80 percent chance that you're going to have a warrant. Well, I understand, Your Honor. And that's the second part of my answer is that officers can't count under our rule a warrant by itself is not sufficient. There still must be a separate inquiry into whether the predicate stop was flagrant. And an officer can't count in any particular stop on a judge later concluding that the stop was flagrant. But I assume, Mr. Green, that there are a variety of circumstances in which police officers would really like to talk to somebody and really like to search them, but don't have reasonable suspicion. And I think that the question that Justice Sotomayor is asking is, if you're policing a community where there is some significant percentage of people who have a rest of warrants out on them, it really does increase your incentive to make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gain in that search. I don't, Justice Kagan, I don't think so. I think, again, if the inquiry turns as it does on not only finding a warrant, but then a determination of whether the stop was flagrant, the officer has no guarantee before he makes the stop that the judge will later conclude the stop on the top. But this is an officer who, you say this is a close call. So let's say that there are close calls. But you don't think you have reasonable suspicion or you think you may be do if you find a good judge out there, but you, there's a reason why you want to talk. So this is not a flagrant violation. This is not a drag net search or something like that. But you, if, if, I mean, it does change your incentives quite dramatically, it seems to make, if you are policing a community where there is some significant percentage of people who have a rest warrants. Well, Justice Kagan, I think with respect, it doesn't officers know that the only surefire away the incentive is always to comply with the Fourth Amendment. That's the only way they can be sure that the evidence they are gathering is later used in a prosecutor's office. That's the only way they can be absolutely sure. But here, there's some chance that they're going to find the rest warrant and then they're going to be able to admit the evidence that they're going to get, whereas before, there was none. And that's some chance is not like a once in a blue moon kind of chance. In these very heavily policed areas, it's, I mean, I was staggered by the number of a rest warrants that are out on people. So it's, you know, a significant possibility that you're going to find an arrest warrant and be able to admit whatever drugs or guns or whatever it is you find. I think your honor in those circumstances, that's where the flagrancy inquiry actually does the work of deterrence, because as this Court has explained to be appropriate, suppression must yield appreciable deterrence. There may be some additional marginal deterrence that's suppressing everything following an event like this would yield, but that's never been enough under this court's precedence

. Don't you think it's enough of a deterrent to say to a police officer in this situation? You should have reasonable suspicion. You know the fourth amendment requires it. So before you do an intrusive act demanding identification, to do what you're permitted to do, which is just to ask the person whether they'll talk to you. And you think that that would improve the relationship between the public and the police wouldn't that be the appropriate encouragement we would give if we don't let police do these things in questionable situations? I think that's what the existing rule and the exclusionary rule itself does. It encourages officers to comport with the fourth amendment. This applies really as limited. We're encouraging them now from doing that. We're saying if you have questionable probable cause, go ahead and do it, because we're not going to make you take that extra step of just merely stopping someone and saying, will you talk to me, please? No, I don't think so, Your Honor. I think again, because there are two predicate steps that must be, that must happen before this exception would apply. And the officer before the stop can't count on either one. That's why when we are talking about a conduct here that is admittedly a violation of the fourth amendment, but low culpability, that's where the additional marginal deterrence that would come from suppression doesn't do its work. And with respect to the particular type of intervening circumstance here, this is a compelling intervening circumstance of the type that this Court identified in its case, in its holding in Johnson versus Louisiana. Ms. Degrees, you make a point that a person's name is not suppressable. And evidence derived from just knowing the name is not suppressable. If that you write about that, then the police could stop anyone and say, whether I have reasonable suspicion or not, I want to know your name. And that's not suppressable. Then there's the warrant check, which you say is an intervening circumstance. So it seems that your argument is, is alming the police with asking every person, what is your name, and doing the warrant check? Well, Your Honor, it is, of course, that's one of the purposes of a Terry stop of an investigatory stop is to try to find a person's name. I thought you needed reasonable suspicion. That's correct. That's correct. This is the case where you're telling us reasonable suspicion or not, the name of person's name is not suppressable. That's right, Your Honor. But it is admittedly the but-for-link between the initial predicate on lawful stop and the later discovery of the warrant and the arrest on the warrant, which is the intervening circumstance. That's why, Your Honor, we think this is, this falls comfortably within this Court's prior attenuation jurisprudence. Just like that. So what is an intervening circumstance in your view? What is your test for what it is? Your Honor, I think we think under its, it flows naturally from this Court's teaching in Wong-Sung, that is, it's any means sufficiently distinguishable from a predicate on lawful act such that suppressing evidence seized after it would not yield appreciable deterrence. And this Court's case is now

. The more view is that we should look at the question of whether something is an intervening circumstance through the deterrence lens, that makes a lot of sense. We look at everything through a deterrence lens with respect to the exclusionary rule. And the, you know, what we're supposed to say is this does this appreciably increase deterrence or not? Is that correct? That's the inquiry, Your Honor. Yes. And so I guess that I'm back to my question. In a world in which finding somebody with an outstanding arrest warrant was an extremely low probability, you would be right. In a world in which it was an extremely high probability, you would be wrong. Then it seems like where is this on the spectrum? What do we know about that? It sure seems, I mean, again, I will come back to this. I was surprised beyond measure by how many people have arrest warrants out there. And particularly in the kind of areas in which these stops typically tend to take place. So that, it seems to me, you know, is a pretty strong argument for why this will increase deterrence. Well, you're, again, I think Justice Kagan, the answer to that is the inquiry here in attenuation is not just, is there an intervening circumstance? Under this Court's prior cases, there still must be something else. And we think that something else, following from this Court's teaching in Brown, is a fegrancy inquiry. What level of culpability does this conduct display? What is the degree? Do you think that something else includes a subjective component, whether there was a purpose to see if there was a warrant? We don't, Your Honor. We think that that inquiry is inconsistent with the way this Court's Fourth Amendment jurisprudence has evolved into an objective. So it is true that that would be a step maybe beyond our cases on the other hand. And if the inquiry is one of fegrancy, then maybe that's necessary. And it may be particularly necessary here because under the line of questioning that Justice Kagan just concluded with you, it would seem odd for this Court to say the higher crime, the more it's a high crime area, the less basis you have to stop. That's very odd. Well, I think, Your Honor, so it seems to me that the subjective purpose component might serve an important purpose here, so that the police officer can't just say, I'm going to see if there's a warrant for this. That's the reason I'm going to stop. That seems to me quite wrong. Well, Justice Kennedy, I think the answer to that question is that in the cases upon which Respondent relies, citing the subjective purpose requirement, those involved in cases involving arrests without probable cause. And in those circumstances, the factors and the facts that we think this Court discussed in those cases go to show the objective unresitableness of those particular actions. We think it's different in the context of a Terry stop where this Court has repeatedly said, courts can make the stop in order to investigate in order to confirm or dispel suspicion. And that's particularly so, Your Honor, with relation to the two-part test that we think this, that we think is appropriate here, where the intervening circumstance is a pre-existing warrant based on probable cause arising from facts completely unrelated to the stop. That type of intervening circumstance matches up precisely with what this Court found in Johnson versus Louisiana, where the intervening circumstance there was a commitment. This is a non-secretary. When you talk about an intervening circumstance, as we've looked at it in a case, lore, it's always been something different than the actual stop

. Another police officer comes by and says, oh, I've been searching for that guy. I know he has, I have an arrest warrant for him. A witness walks by on another crime and says, he just robbed me down the block. Those are intervening circumstances because they are something outside of the stop. But this location of evidence was a direct product of the stop. It would never have happened except for the stop. You Honor, we agreed that there's but-for-cause here, but with respect, there was actually something else that happened here. That was that prior finding of probable cause by a neutral and detached magistrate on a crime completely unrelated to the facts of the issue in this particular stop. So in that sense, it does resemble. You know, something finding the baggy of cocaine gives the officer a reason of probable cause to arrest. But we don't let that cocaine come into evidence merely because it was a ground for the arrest. We look at how the evidence was secured before deciding whether it's suppressive or not. And I don't see how this is any different than not letting someone be arrested or suppressing DNA evidence, fingerprint evidence that leads to other crimes. And we've suppressed those things because they've been the product of an illegal stop. And to digest the so-to-myard, we agree with you that if the baggy of cocaine, if an officer had found a baggy of cocaine during an unlawful stop, that's the precise situation where the exclusionary rule would usually apply. What's different here is that the search in which the drugs and the other evidence was found occurred while the suspect was in lawful custody. Respondent has admitted that the arrest warrant was lawful and the arrest was there for lawful. And under this Court's decision in Robinson, once the arrest is lawful, the search incident to it is lawful and all the evidence gathered in any search is lawfully seized. Kagan, you make a statement in reply, Bre, that says, the Fourth Amendment does not require officers to have reasonable suspicion before they check for warrants. If you mean that, then any officers can say, what's your name? I'll check you for a warrant. You're an officer could do that, Your Honor. That's certainly right. But what happened here is that, of course, that request came during the course of a stop that we've conceded was not supported by reasonable suspicion. And so the question is, what happens? Kagan, you say that you mean reasons suspicion. I mean, as I read the sentence, it says, the officer doesn't have to have reasonable suspicion. It can grab you what's your name and check for warrants. And that doesn't violate the Fourth Amendment. Justice Ginsburg, they don't have to have reasonable suspicion to check for warrants. But that's different from making the initial stop where, of course, they do need reasonable suspicion

. If there are no further questions, I'd like to reserve them any time. Thank you, counsel. Mr. Bash. Mr. Chief Justice, and may it please the Court. I'd like to start with the concern that Justice O. to my urine, Justice Kagan, have both raised about these communities where there are a lot of outstanding warrants. As a preface, there's a lot of communities where there's not a lot of outstanding warrants, and the rule that responded to wants you to establish would exclude evidence of serious guilt and serious offenses nationwide. But focusing on communities like Ferguson with a lot of outstanding warrants. Sorry. I don't know what to say on why. If there's an arrest warrant for someone, for whatever reason, you can arrest them. What you can't do is stop them illegally to affect and arrest. So it's not as if they're going to get away from whatever the underlying crime was. There's an arrest warrant. They're going to go back and serve their time on whatever circumstance existed, warranting that arrest. Why are they getting away with anything? What's being excluded is evidence of the crime that was found. Of another crime that the police would never have found, but we do that. Well, they might have found it during a separate valid execution, a separate execution of the warrant without a preceding Terry stop. But the evidence found on a person, for example, a firearm can be very serious crimes that are also of significant danger to these communities. But that's true of all evidence we suppress. Now you're attacking our suppression jurisprudence. We understand there's a cost to suppressing evidence, but we believe, as we've been taught by our precedents, that there is value in ensuring that the Fourth Amendment was respected. Of course. And the overarching inquiry always is weighing those very serious costs of excluding evidence of guilt against the deterrent value that you would get to find. So what's our rule now? Now you don't need reasonable suspicion to stop someone. You only need questionable reasonable suspicion to stop someone. And now, so we've now lessened the standard, the Terry start stop standard, which is fairly intrusive to stop someone

. I suspect, and I don't know whose brief it was, yours or your petitioners, but someone said the public will stop this if they don't like police stopping you with no cause. I think the public may end up stopping things, but in a way, the police are not going to like. Well, Justice Sotomayor, we're not talking about all Terry cases. We're talking about a class of Terry cases where an intervening event of huge legal significance occurs. It turns out that a neutral magistrate had already found a probable cause to arrest this person. So we're certainly not talking about lowering the Terry standard in all cases. But we're not saying that. But you're going to talk about the statistics, Mr. Bash. Could you do that? And does the United States know the percentage of residents of the United States who have outstanding warrants? We don't know globally. In the reply brief of the petitioner in this case, he cited a study submitted to the Department of Justice in 2004 that looked at two counties. I don't pretend they're representative, but it's a county in Minnesota and Maryland. And it was an extremely low number of warrants per person. And of course, using that number would take the assumption that every warrant is for a different person, which is probably not true. And it would assume that the population reflects the total number of people who could be subject to warrants. But of course, people pass through, people come in and out. So it's probably extremely low. I do take Justice Kagan's point, though, that there are some communities where the warrants are high. I want to focus on that. And what should we be concerned about there? What would prevent the problem in communities like that? Well, it's important to know that respondents rule does nothing to solve the problem that the Department of Justice and its March report, March 2015 report on Ferguson identified. What was going on in Ferguson is that the municipal court in conjunction with the police were using arrest warrants as a revenue raising measure. They were issuing warrants for very minor offenses and failure to appear. And then police officers on the scene had the incentive to arrest people to bring them in to pay the fine. Respondence rule does nothing to solve that, because everybody agrees the arrest is lawful. The Department of Justice did not find even in a community with a significant number of arrest warrants as Ferguson that officers had an incentive to search and that they were acting on an incentive to search people incident. The incentive was to arrest and pay the fine. I take the point, Mr. Bash, but I guess I just don't understand. Of course, this is a nationwide rule that we would be setting

. But most Terry stops do not happen in most neighborhoods. Most Terry stops happen in very high crime neighborhoods appropriately. But where people have lots of arrest warrants. And you might be right about this specific Ferguson case, but I still have my question, which is why doesn't that dramatically change the incentives for police officers in deciding whether to search somebody? If you know that there is a significant possibility that somebody you stop is going to have an arrest warrant, that's another reason to stop them. Justice Kagan, I don't think the impure show that the numbers are so great that even in high crime neighborhoods, at least outside of the Ferguson circumstance where you have this odd revenue raising scheme, that the chance of both finding a warrant and then finding contraband in the search and sooner to arrest is so high that it's incentivizing officers to conduct illegal stops solely for the purpose of finding a warrant. That was my point about the importance or the likely importance of purpose in this analysis. I was actually just going to turn to that Justice Kennedy. I think when this court has mentioned flagrancy in cases, not only those cases listing the Brown factors, but also cases like Leon and Herring, what it has been concerned about in part is the notion that once you establish an attenuation principle, what I would say is a common sense principle here that generally in a arrest warrant should be a superseding cause of the discovery of the evidence. You might have an officer exploiting that rule precisely in order to get evidence and searches incident to arrests. So I think the way you could think about flagrancy is did this officer have the purpose, and it could either be a purpose objectively understood from all of the facts, or it could be a subjective purpose to exploit this attenuation exception precisely in order to search incident to arrest. I don't think the facts here remotely get there. I don't really think even respondent has argued that. This was a legitimate investigation. The officer may have made a mistake about the quantum of suspicion necessary. But if you had a case where an officer truly, either objectively or subjectively, is going out, just pulling random people over because he now knows about this attenuation rule established in this case, I think that's the sort of flagrancy consideration in cases like Leon and Herring. This Court has left as a safety valve. But does that mean that we're going to have to in every single case explore the officer's subjective motivations? Because that sounds like the kind inquiry that we've tried to stay away from in the past. Justice Kagan, Justice Kennedy suggested subjective motivations, and I think that has some support in the earlier attenuation cases like Brown and Dunnoway and Taylor, where it really did seem to be that the Court was inquiring about purpose. And it also has some support in doctrines like inevitable discovery, which does ask, you know, what were you going to do in the fact? In more recent cases, the Court has moved towards an objective test. So I think the way the Court could formulate the flagrancy safety valve in this case is to say, does this stop a peer objectively designed to exploit the ability to search incident to arrest on a warrant? And it could look at all the circumstances. It could look at the fact that this wasn't incident to any legitimate investigation. It could look to the fact that the officer pulled over several people and searched in for warrants in the same incident. I think it could have that safety valve, which would have the effect of preserving cases like this one, where an officer is acting in good faith, and someone is found with very serious evidence on drug trafficking or a firearm. And it would make it to the point where we no longer have reasonable suspicion at all. Because you keep defending this stop. And I keep going back to he has an anonymous call. He does see a certain number of short-stay visits, but he stops someone who he doesn't know has been a short-stay visit, has not seen there before, knows nothing about this person, and is doing a complete, intrusive stop. Not just, hey, will you talk to me, stop? But a formal, investigatory stop on nothing else. Just a sort of respect for it

. I think this was a close case, and I'll just lay out why. Maybe you'll disagree with that. This was an officer with 18 years of experience in several years or a couple years in drug crimes. Got anonymous tip that this was a drug house, observed it intermittently for three hours, and saw short-term traffic that was consistent in his experience and expertise with drug activity. And then someone walked out of the house. That person could have been one of two people. He could have been a short-term visitor, in which case I think most people would agree that it, there'd be cause of stop. Or he could be a long-term resident of that house. And there's not too many houses that are involved in a ongoing drug trafficking or drug sales that the long-term resident of that house wouldn't know about. I mean, this wasn't a pizza delivery man. So it was some- It's a given that there was no reasonable suspicion, and you can argue whether it was, but for all purposes, there was no reasonable suspicion. S. As the case comes to the court, that is correct. Justice Ginsburg, my only point was this isn't the example in my opinion, the mind of the safety valve, flagrancy situation that I was discussing with Justice Kagan and Justice Kennedy. I think the reason that this case comes to us is because the Utah Supreme Court says, you know, this is three things and flagrant. This is all very confusing. And courts are coming out all over the lot, so we want to come up with a simpler test. Do you have, are you say Utah was wrong? The three-prong test that we have now is fine. Would you change in any respect how we look at these attenuation? Well, I don't think the three-prong way is a bad way to look at it. The cases have actually used the three prongs to determine whether a defendant's confession is the product of three-will. Justice Kennedy, I'm sorry. We think it's a fine way to think about this case in the sense of the court could hold super-seating legal authority by a neutral magistrate is an intervening event of significance for the attenuation analysis and suppression would be appropriate only if the stop was flagrant either objectively or subjectively understood. Thank you, counsel. Ms. Wat? Ms. Justice, and may it please the Court. Utah's proposed rule would open the door to abuse. It would create a powerful incentive for police officers to detain citizens without concern for the Fourth Amendment knowing that finding a warrant would wipe the slate clean and render the constitutional violation irrelevant. It would cut the heart out of Terry

. It would create a new form of investigation. Officers would be stopping citizens and hunting for warrants. It's already the practice in many communities and if Utah's rule is adopted it will become the norm. It's unnecessary for this Court to take such a sweeping view as Utah has. Would that be true if let's say one half of 1% of the residents of South Salt Lake or Salt Lake City have outstanding warrants? The statistics are important to our argument but not necessary because even without the statistics we know that officers make stops precisely for that reason to find the warrant. That's why they're making the stop. They can target communities and so even if there's just a very minor amount of warrants they can still target communities that may have a greater incidence of warrants. And if this were the rule there would be no downside. Officer? Well, I was sure there's a downside if the officer makes an illegal stop. The officer exposes himself or herself to all sorts of consequences. But you're saying that if the, on the statistic that I gave you if there's a 1 in 200 chance that there's going to be an outstanding warrant, so the officer says, well, I don't know. I have no reason to stop this person. But if I stop 200 people today illegally then I'm going to find one who has an outstanding warrant. You would say that that that gives the officer the incentive to make those 199 illegal stops. Well, it's still precisely why the officer would be doing it. He's running the warrant check. In this, in this facts situation we're talking about about a very narrow set of facts where we have an officer that detained someone and as part of that detention there is a warrant's check. These were not separate things. It was inherent in this stop. And so yes, if an officer is detaining someone under those circumstances and runs a warrant's check, he's doing it precisely. Could you, it's permissible to do a warrant check as part of a lawful Terry stop? A lawful Terry stop? Yes. In our brief, we've referred to Rodriguez and this Court has certainly said that at least in the context of automobile stops, yes. Well, in this case the State, as I understand it, please correct me if I'm wrong, has conceded that the stop was unlawful. It is not conceded that it was flagrantly unlawful. Isn't that correct? Well, that's right. That's right. And so what, but what the position that the State has taken is? So we take the case as one in which there was no, there was no flagrant conduct? So the test under Brown for flagrancy really has two elements. One is whether it was done deliberately or purposefully. And we know from Dunoway and Taylor and Brown itself that that unlawful conduct that is undertaken with the purpose or with the hope of finding something, with the hope that something turns out, is deliberate and is flagrant

. And Dunoway tells us that we don't need some overarching flagrancy that that's enough. And so the purpose is important. It's viewed from an objective standpoint. Here we have an officer that told us his purpose, but objectively we do look at purpose, we look at justification. That's how we know the limits of a Terry stop. What's the number? What percentage of people have to have warrants before you can imply that whenever an officer stops someone, it is to, you know, illegally search them because they're very likely to have an arrest warrant. Well, I think that the proper focus, I mean, I don't think breaking it down to numbers is the way to go. I think the proper focus is on deterrence. And we know deterrence is not just- Well, I suppose that's related. I mean, your briefs had a lot of numbers in it. And if only one out of 100 people have arrest warrants, then I think you really couldn't imply that that was the purpose of the stop. If you have- And some of these numbers, obviously you have in particular communities high numbers, but some of them didn't strike me. I was surprised how low they were. 323,000 is a big number, but that's the entire state of Florida. So the officers run warrants because- Warrants checks because they're likely to turn up warrants with- When they target certain- Why is that? Do you know what I mean? Every time a police officer pulls somebody over and runs in a warrants check, it's because he thinks it's likely there's a warrant. Might it be to protect him when he walks up to the car? He'd like to know that the person is wanted for murder, right? So running the warrants check tells him that. That's- When you run the warrants check, you're looking for a warrant. In this case, that's what fact officer Frack-Roll was doing. He wanted to try to find out something about Mr. Strieff, and so he ran the warrants check. These kinds of stops, it is- But I guess- I mean, you do require us to determine whether or not he ran the warrants check to ensure his safety in this interaction or as an investigative matter. I mean, does that make a difference? It makes a difference in the sense that when there is a stop that is made, that the warrants check is inherent in that stop. So I guess my answer is no, it doesn't make a difference because when- Why wouldn't it- Why wouldn't it- Look at our case, Rodriguez case. We assumed that the check there was to ensure the safety of the officer. That's right. All right? Right. If the stop here is purely investigatory, isn't that different? Can you have an investigatory stop based on no suspicion? You were right when you said he stopped to check for the warrants. The question is Justice Kennedy's question, which is- Is that legitimate? Can- Can you have an investigative stop to check for a warrant without reasonable suspicion or with- Without you cannot. You cannot- The officer cannot detain someone without reasonable suspicion to run a warrants check. As I understand your position, you don't argue that the arrest was unlawful, is that right? We don't. We have never told you. So the arrest was lawful and when the officer is making the arrest, it's permissible for safety purposes for the officer to frisk the person who's being arrested. Do you agree with that? Yes. So it's a lawful search, correct? We've never challenged the search. Isn't it- Can you- Can you give me one other example of a situation in which this court has held that the fruit of a lawful search must be suppressed? I don't have another case in this precise circumstance. Our position throughout- Well, in any circumstance. So this case has not come before the court. We know that an arrest warrant is not always an intervening circumstance. It wasn't one in Taylor versus Alabama. And- And even Utah and the solicitor general don't take the position that just the- the arrest and the search incident to arrest are enough because they've conceded the dragnets that- that any evidence that's found in a dragnet is a fruit. And- And so that's- I'm just pointing it out that that's a curiosity, isn't it? To have a lot- to suppress the fruit of a lawful search and maybe you need strong circumstances to justify such an unusual and unprecedented result. Well, our position is these are strong circumstances because part of deterrence, the value of deterrence is found in the strength of the incentive to violate the Constitution. And- And you- I do- I do- I do- I do- You- Go ahead. He said you don't question at all the arrest. And you don't question one series in arrest the path down for drugs. I mean, the path down for guns. But are you saying that the arrest for the warrant that has- is a totally different crime? Doesn't permit you to search for evidence. It only permits the officer to protect himself by patting down for weapons, is that? Well, our position is that anything that's found is the fruit of that- of that illegal detention, not of the arrest because the- the arrest and- and ultimate- and subsequent search are- are fruit. But- but they're not- suppressive- they're not something that we have fought against because again, we have the warrant and authorization. But if the individual is going to be arrested and put in jail, isn't it standard procedure and lawful procedure for the authorities to search that person thoroughly? They couldn't have the person bring drugs into- into the jail or things that the person might use to hurt himself or other people. It would still be a fruit. So it would- well, what does that mean? It's- but it's not- it does- that's lawful conduct on their part, right? Right. Okay. But so you're asking for the suppression of the fruit of a lawful search. What we're asking for is the suppression based on the unlawful detention that began the encounter. So- so this encounter begins with the stop. The stop itself is- is unlawful. The state has conceded that throughout

. As I understand your position, you don't argue that the arrest was unlawful, is that right? We don't. We have never told you. So the arrest was lawful and when the officer is making the arrest, it's permissible for safety purposes for the officer to frisk the person who's being arrested. Do you agree with that? Yes. So it's a lawful search, correct? We've never challenged the search. Isn't it- Can you- Can you give me one other example of a situation in which this court has held that the fruit of a lawful search must be suppressed? I don't have another case in this precise circumstance. Our position throughout- Well, in any circumstance. So this case has not come before the court. We know that an arrest warrant is not always an intervening circumstance. It wasn't one in Taylor versus Alabama. And- And even Utah and the solicitor general don't take the position that just the- the arrest and the search incident to arrest are enough because they've conceded the dragnets that- that any evidence that's found in a dragnet is a fruit. And- And so that's- I'm just pointing it out that that's a curiosity, isn't it? To have a lot- to suppress the fruit of a lawful search and maybe you need strong circumstances to justify such an unusual and unprecedented result. Well, our position is these are strong circumstances because part of deterrence, the value of deterrence is found in the strength of the incentive to violate the Constitution. And- And you- I do- I do- I do- I do- You- Go ahead. He said you don't question at all the arrest. And you don't question one series in arrest the path down for drugs. I mean, the path down for guns. But are you saying that the arrest for the warrant that has- is a totally different crime? Doesn't permit you to search for evidence. It only permits the officer to protect himself by patting down for weapons, is that? Well, our position is that anything that's found is the fruit of that- of that illegal detention, not of the arrest because the- the arrest and- and ultimate- and subsequent search are- are fruit. But- but they're not- suppressive- they're not something that we have fought against because again, we have the warrant and authorization. But if the individual is going to be arrested and put in jail, isn't it standard procedure and lawful procedure for the authorities to search that person thoroughly? They couldn't have the person bring drugs into- into the jail or things that the person might use to hurt himself or other people. It would still be a fruit. So it would- well, what does that mean? It's- but it's not- it does- that's lawful conduct on their part, right? Right. Okay. But so you're asking for the suppression of the fruit of a lawful search. What we're asking for is the suppression based on the unlawful detention that began the encounter. So- so this encounter begins with the stop. The stop itself is- is unlawful. The state has conceded that throughout. So what's- what's the problem with that stop? This is a stop. The kind of stop that lawyer- I'm sorry- that officers are faced with every day. It's a basic kind of stop. It- what- what do we know about Terry's stops? The officers have to- have to have a reasonable, articulable suspicion. Cortes tells us that it's really a two-step assessment. They have to number one look at the totality of the circumstances. And number two, they then have to look at whether there's an individualized suspicion. Does this tie in with this defendant? So in this case, what does the officer know? All he knows is that there's some short, not terribly frequent short-state traffic at the house. He sees my client emerge from the house, knows nothing else. So even under the totality, a reasonably well-trained officer should have known this stop was not- was bad. So you're arguing something that the state's conceded, right? Well, I think it's important because the state has taken the position that- that this was just a factor to shy of- of what was needed. And being a factor to shy of Terry leaves us with nothing. Terry is already a fairly low standard. But you still have to say that it's flagrant. Well, my position is- is twofold. One, that- that flagrancy has two aspects. One aspect is just the deliberate aspect. And that in- in this type of a stop where- where it's made for the purpose of- of running the warrants check, if the- the warrants check is inherent in the stop, that- that's enough. But secondly, if we were going to include a different definition, it would be that it was blatantly unconstitutional. And so that's why I'm moving into the stop to talk about what was the problem with this stop? What do we expect of our police officers? What do we need from our police officers? You said that the- the stop was made for the purpose of running for the arrest warrants. I just don't know the basis for that. Other than you statistics that in certain areas there are a high number of arrest warrants. In many areas there aren't. I mean, is it entirely empirical? Do we have to accept and generalize from your empirical evidence which- that the purpose must be to- execute- or to check for arrest warrants? No, because we know that that's precisely what- what was done in this case, what is done in some other cases. In this case we- we have an officer that makes a stop and he immediately runs that warrants check. How did he- immediately runs the arrest warrants check when he makes the stop because he wants to know who he's dealing with? It'd be- it'd be, I think, bad police work to not run the warrants check until after you've had an interaction with the person when the danger that you could have found out about might have been when it's too late to- to act on it. The- the way he finds out who he's dealing with is if there's a warrant. The point is he didn't have a reasonable suspicion to stop my client. And so- No, I understand that

. So what's- what's the problem with that stop? This is a stop. The kind of stop that lawyer- I'm sorry- that officers are faced with every day. It's a basic kind of stop. It- what- what do we know about Terry's stops? The officers have to- have to have a reasonable, articulable suspicion. Cortes tells us that it's really a two-step assessment. They have to number one look at the totality of the circumstances. And number two, they then have to look at whether there's an individualized suspicion. Does this tie in with this defendant? So in this case, what does the officer know? All he knows is that there's some short, not terribly frequent short-state traffic at the house. He sees my client emerge from the house, knows nothing else. So even under the totality, a reasonably well-trained officer should have known this stop was not- was bad. So you're arguing something that the state's conceded, right? Well, I think it's important because the state has taken the position that- that this was just a factor to shy of- of what was needed. And being a factor to shy of Terry leaves us with nothing. Terry is already a fairly low standard. But you still have to say that it's flagrant. Well, my position is- is twofold. One, that- that flagrancy has two aspects. One aspect is just the deliberate aspect. And that in- in this type of a stop where- where it's made for the purpose of- of running the warrants check, if the- the warrants check is inherent in the stop, that- that's enough. But secondly, if we were going to include a different definition, it would be that it was blatantly unconstitutional. And so that's why I'm moving into the stop to talk about what was the problem with this stop? What do we expect of our police officers? What do we need from our police officers? You said that the- the stop was made for the purpose of running for the arrest warrants. I just don't know the basis for that. Other than you statistics that in certain areas there are a high number of arrest warrants. In many areas there aren't. I mean, is it entirely empirical? Do we have to accept and generalize from your empirical evidence which- that the purpose must be to- execute- or to check for arrest warrants? No, because we know that that's precisely what- what was done in this case, what is done in some other cases. In this case we- we have an officer that makes a stop and he immediately runs that warrants check. How did he- immediately runs the arrest warrants check when he makes the stop because he wants to know who he's dealing with? It'd be- it'd be, I think, bad police work to not run the warrants check until after you've had an interaction with the person when the danger that you could have found out about might have been when it's too late to- to act on it. The- the way he finds out who he's dealing with is if there's a warrant. The point is he didn't have a reasonable suspicion to stop my client. And so- No, I understand that. But you're- you're implying- I'm still trying to get it. How you decide what the purpose was. In your brief you say several times, or the purpose is to run the warrants check. And I just wanted to why that's- why that's the case. Because it was immediate, it was inherent in what he did, because he stated that his purpose in- in- in- stopping my client was to find out about my- find out about the house, and that it was normal for him to run a warrants check and normal for him to know- want to know who he's dealing with. So we now just- that's saying that the warrant check is something he does when he arrests people. I- I don't doubt that. But it doesn't prove that that was his purpose in- in- in the stop. So the intended consequence of running a warrants check is to find a warrant. Number one. And number two, our statistics show that- that in- in a sizeable number- its officers are likely to find warrants. The other concern is if you- the whole- the purpose of this stop was to run the warrants check. I thought the purpose of stock with the finite was going- what was going on in the house. I- I think that when- when an officer- records this doesn't support the- the first proposition that I make. When an officer detains someone as part of a fishing expedition, in the hope that something will turn up, that is- that is the purpose that is a prop. There was no suspicion here. He was- your client wasn't Frisk. S. I'm sorry, wasn't Frisk? There was no activity that the officer is alleged to have seen that would put the officer in fear of any kind- that this gentleman was violent or was going to turn on him or do anything else. Correct? Correct. So the purpose, as I understand what you're trying to say is, he is now routinely checking every single person that he stops whether with or without reasonable suspicion. There can't be any other reason other than he wants to find a warrant or not. But that's- so part of the stop may be to investigate, but the other part of the stop is he's doing this routine lead with no reasonable suspicion with no articulable fear of his for his own safety. He's demanding people's names and he's running a warrant to do what? You're saying to find the warrant. Exactly. How often are- people stop driving and an officer walks up to the car and they're shot? Does that happen a fair amount of time? It does happen. So is there no other reason for checking to see if there are warrants out for that person before you walk up to the car or before you conduct an inquiry with the ticket? Well, it seems to me not wanting to get shot, it's a pretty good reason. But this presents a completely different scenario. This officer approached Mr

. But you're- you're implying- I'm still trying to get it. How you decide what the purpose was. In your brief you say several times, or the purpose is to run the warrants check. And I just wanted to why that's- why that's the case. Because it was immediate, it was inherent in what he did, because he stated that his purpose in- in- in- stopping my client was to find out about my- find out about the house, and that it was normal for him to run a warrants check and normal for him to know- want to know who he's dealing with. So we now just- that's saying that the warrant check is something he does when he arrests people. I- I don't doubt that. But it doesn't prove that that was his purpose in- in- in the stop. So the intended consequence of running a warrants check is to find a warrant. Number one. And number two, our statistics show that- that in- in a sizeable number- its officers are likely to find warrants. The other concern is if you- the whole- the purpose of this stop was to run the warrants check. I thought the purpose of stock with the finite was going- what was going on in the house. I- I think that when- when an officer- records this doesn't support the- the first proposition that I make. When an officer detains someone as part of a fishing expedition, in the hope that something will turn up, that is- that is the purpose that is a prop. There was no suspicion here. He was- your client wasn't Frisk. S. I'm sorry, wasn't Frisk? There was no activity that the officer is alleged to have seen that would put the officer in fear of any kind- that this gentleman was violent or was going to turn on him or do anything else. Correct? Correct. So the purpose, as I understand what you're trying to say is, he is now routinely checking every single person that he stops whether with or without reasonable suspicion. There can't be any other reason other than he wants to find a warrant or not. But that's- so part of the stop may be to investigate, but the other part of the stop is he's doing this routine lead with no reasonable suspicion with no articulable fear of his for his own safety. He's demanding people's names and he's running a warrant to do what? You're saying to find the warrant. Exactly. How often are- people stop driving and an officer walks up to the car and they're shot? Does that happen a fair amount of time? It does happen. So is there no other reason for checking to see if there are warrants out for that person before you walk up to the car or before you conduct an inquiry with the ticket? Well, it seems to me not wanting to get shot, it's a pretty good reason. But this presents a completely different scenario. This officer approached Mr. Strief. He knew very little about him. As a matter of deterrence, a reasonably well-trained officer would have known, should have known, that there wasn't enough there, because he didn't know anything about my client. There was no individualized suspicion. And- Well, we don't know very much about exactly what happened here, which is unfortunate. But what the officer testified was that he didn't just grab this guy and say, give me an ID and then run a warrants check. He did say that he approached him and he said, identified himself. He said he thought there might be drug activity going on in the house. And he asked him to tell- he said, I asked him to tell me what he was doing there. Now, we don't even know what he- unless it's someplace else in this record, we don't even know what your client said, but he could have said, what am I doing there? Yeah, I live there, or my mother lives there, or my best friend lives there. But whatever we don't know what he said, but then at some later point, he ran a warrants check. So how can we infer from that that the whole point of the stop was to run the warrants check? So a really important part of the officer's testimony was that he didn't remember what that answer was. So if my client had said, I went in there because there's someone who's ill, and I've been visiting for, you know, 20 minutes, or this is where my friend lives. That's why I was there. End of inquiry. And the warrants check shouldn't have been run. A reasonably well-trained officer should know. The important part of this case is that if we're only looking at- we're not just looking at deterring officer fat-rowed. We're looking at deterring future conduct by officers. And the tarry limitation is something we want our officers to know. It's fairly straightforward. This is a fairly straightforward case that is going on every day in this country. We're officers are looking at houses, watching houses that maybe might have drug trafficking going on. They're trying to establish probable cause. Case laws are relatively clear about what you need to get probable cause on a house. It's also relatively clear about what you need to get individualized suspicion. We know from Cortez we need those two elements. We also know from Ibarra that just being in proximity to other people is not enough. Even when the officers have probable cause to search or probable cause to arrest someone, if you're standing right there, it's not enough

. Strief. He knew very little about him. As a matter of deterrence, a reasonably well-trained officer would have known, should have known, that there wasn't enough there, because he didn't know anything about my client. There was no individualized suspicion. And- Well, we don't know very much about exactly what happened here, which is unfortunate. But what the officer testified was that he didn't just grab this guy and say, give me an ID and then run a warrants check. He did say that he approached him and he said, identified himself. He said he thought there might be drug activity going on in the house. And he asked him to tell- he said, I asked him to tell me what he was doing there. Now, we don't even know what he- unless it's someplace else in this record, we don't even know what your client said, but he could have said, what am I doing there? Yeah, I live there, or my mother lives there, or my best friend lives there. But whatever we don't know what he said, but then at some later point, he ran a warrants check. So how can we infer from that that the whole point of the stop was to run the warrants check? So a really important part of the officer's testimony was that he didn't remember what that answer was. So if my client had said, I went in there because there's someone who's ill, and I've been visiting for, you know, 20 minutes, or this is where my friend lives. That's why I was there. End of inquiry. And the warrants check shouldn't have been run. A reasonably well-trained officer should know. The important part of this case is that if we're only looking at- we're not just looking at deterring officer fat-rowed. We're looking at deterring future conduct by officers. And the tarry limitation is something we want our officers to know. It's fairly straightforward. This is a fairly straightforward case that is going on every day in this country. We're officers are looking at houses, watching houses that maybe might have drug trafficking going on. They're trying to establish probable cause. Case laws are relatively clear about what you need to get probable cause on a house. It's also relatively clear about what you need to get individualized suspicion. We know from Cortez we need those two elements. We also know from Ibarra that just being in proximity to other people is not enough. Even when the officers have probable cause to search or probable cause to arrest someone, if you're standing right there, it's not enough. So it should be clear to an officer that my client leaving a house that he doesn't even have probable cause on, that he's trying to find something out about. Well, all he did was go from the house to a convenience store, not in a car, but walking. He walks to a convenience store. He stopped in the parking garage without a car. And I go back to this is not coming up to a parked automobile and getting shot, correct? Right, right. Would your rule apply in that situation? Well, when an officer makes a stop, a car. And would your rule apply in a situation where the officer approaches the car for a purpose that is later found to be insufficient under Terry? You would suppress whatever evidence is found in that situation too, right? If the officer did not have a reasonable suspicion for the stop. Okay. So it would apply in the stopping of the automobile situation. It would. But again, in these cases, if there is a warrant, we have to be careful. We haven't argued about the warrant itself. Our concern is the random stops. And our concern is not just for my client. It's for all of those innocent citizens that are walking around, that are stopped, that a warrant's check is run, and nothing comes up. And then they're sent on their way. There's no oversight. The officer is encouraged to engage in a catch and release type of approach with our citizenry. And Utah's rule would be something that would create that incentive. In your brief, you took the position that an event is intervening only if it is unforeseeable. Well, our position is that an intervening circumstance needs to be independent. And it needs to be a break in the causal chain. And that when a warrant is run, and it needs to be something that is not directly related to the officer's conduct. And so because the warrant's check is an inherent part of the detention, it's not an intervening circumstance. And that's something that the Utah Supreme Court unanimously agreed with and that's sent in the Utah Court of Appeals as well. Agreed that this is a natural and foreseeable consequence. It is the intended result. It is not something that is independent, that comes as a surprise. And that's really consistent with this Court's case law and dealing with intervening circumstances

. So it should be clear to an officer that my client leaving a house that he doesn't even have probable cause on, that he's trying to find something out about. Well, all he did was go from the house to a convenience store, not in a car, but walking. He walks to a convenience store. He stopped in the parking garage without a car. And I go back to this is not coming up to a parked automobile and getting shot, correct? Right, right. Would your rule apply in that situation? Well, when an officer makes a stop, a car. And would your rule apply in a situation where the officer approaches the car for a purpose that is later found to be insufficient under Terry? You would suppress whatever evidence is found in that situation too, right? If the officer did not have a reasonable suspicion for the stop. Okay. So it would apply in the stopping of the automobile situation. It would. But again, in these cases, if there is a warrant, we have to be careful. We haven't argued about the warrant itself. Our concern is the random stops. And our concern is not just for my client. It's for all of those innocent citizens that are walking around, that are stopped, that a warrant's check is run, and nothing comes up. And then they're sent on their way. There's no oversight. The officer is encouraged to engage in a catch and release type of approach with our citizenry. And Utah's rule would be something that would create that incentive. In your brief, you took the position that an event is intervening only if it is unforeseeable. Well, our position is that an intervening circumstance needs to be independent. And it needs to be a break in the causal chain. And that when a warrant is run, and it needs to be something that is not directly related to the officer's conduct. And so because the warrant's check is an inherent part of the detention, it's not an intervening circumstance. And that's something that the Utah Supreme Court unanimously agreed with and that's sent in the Utah Court of Appeals as well. Agreed that this is a natural and foreseeable consequence. It is the intended result. It is not something that is independent, that comes as a surprise. And that's really consistent with this Court's case law and dealing with intervening circumstances. Spontaneous confessions are something that are independent. They break the chain. We look at free will, and that's independent and breaks the chain, witness testimony. But here, there was no break. It was a direct result of the officer's conduct. The rule that we are really asking the Court to adopt follows settled exclusionary rule case law. And that is that if there is the bad stop, it's suppressed unless there is attenuation. And of course, if there hadn't been a warrant, if the officer had just stopped my client and searched him, I don't think anyone is contesting that that would just simply be suppressed without attenuation. And in this case, there was no attenuation as well because all three of the factors that this Court has looked at work in favor of suppression. The temporal proximity works with us obviously. It was contemporaneous. It was immediate. It was inherent. It's not an intervening circumstance because it's not independent. And it's not a break in the causal chain. And it was deliberate conduct on this officer's part that was blatantly unconstitutional. You disagree with Judge Friendly's analysis in the Friedland case? In what respect? Well, with his analysis, as I understand it took the position opposite to what you are arguing. And I just want to know if you have a basis for distinguishing that precedent. I guess I don't. So our position is that this falls squarely within the Court's settled case law. We're asking that the Utah Supreme Court be upheld. You agree that attenuation is based on deterrence. That the attenuation determination is based on a calculation of the deterrent effect of the ruling. I do. I do. I agree that the focus is on deterrence. And I think that in this circumstance, there's powerful deterrence to adopt our position and to not follow Utah's position. If Utah's position is a doubted part of deterrence is looking at the incentive to violate the Constitution and looking forward to see what would happen with the rule. And under Utah's rule, there would be nothing to stop police officers from stopping people on the street, articulating something

. Spontaneous confessions are something that are independent. They break the chain. We look at free will, and that's independent and breaks the chain, witness testimony. But here, there was no break. It was a direct result of the officer's conduct. The rule that we are really asking the Court to adopt follows settled exclusionary rule case law. And that is that if there is the bad stop, it's suppressed unless there is attenuation. And of course, if there hadn't been a warrant, if the officer had just stopped my client and searched him, I don't think anyone is contesting that that would just simply be suppressed without attenuation. And in this case, there was no attenuation as well because all three of the factors that this Court has looked at work in favor of suppression. The temporal proximity works with us obviously. It was contemporaneous. It was immediate. It was inherent. It's not an intervening circumstance because it's not independent. And it's not a break in the causal chain. And it was deliberate conduct on this officer's part that was blatantly unconstitutional. You disagree with Judge Friendly's analysis in the Friedland case? In what respect? Well, with his analysis, as I understand it took the position opposite to what you are arguing. And I just want to know if you have a basis for distinguishing that precedent. I guess I don't. So our position is that this falls squarely within the Court's settled case law. We're asking that the Utah Supreme Court be upheld. You agree that attenuation is based on deterrence. That the attenuation determination is based on a calculation of the deterrent effect of the ruling. I do. I do. I agree that the focus is on deterrence. And I think that in this circumstance, there's powerful deterrence to adopt our position and to not follow Utah's position. If Utah's position is a doubted part of deterrence is looking at the incentive to violate the Constitution and looking forward to see what would happen with the rule. And under Utah's rule, there would be nothing to stop police officers from stopping people on the street, articulating something. Terry doesn't take much. Most officers can articulate some sort of justification. Looking for the warrant and then sending people on their way. So we believe that deterrence would be very well served by adopting our rule. And your deterrence argument doesn't depend at all on statistics. Even without the statistics, our deterrence argument works because the point is a reasonably well-trained officer should know what the parameters of Terry are. This officer did not. So if one in a thousand people has an outstanding warrant, that's enough. So that statistic wouldn't upset your argument. It wouldn't upset my argument because we run warrant officers, run warrant's checks because they're likely to find it. One in 10,000 with that upset your argument. I get to a number where you're going to say. In those communities, then you're going to see much less of this behavior, you know, much less of the running the warrant's check in order to find a warrant. It's going to self-correct. But for the most part, I mean, in the flip side is there's then no reason not to run them if that's the rule. But for the most part, in most communities, the incentive, the other thing is with Utah's rule, it could create an incentive to have even more warrants for even more minor infractions. This was a traffic matter. Many of these warrants in the cases down below are minor traffic matters. What was it we know? Was it a ticket? Do we know? It's not in the record. It's not in the record. But it was referred to as a minor traffic matter. I think the judges and the traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people. My point is only that it creates an incentive to not be as careful it creates an incentive. I'm very surprised that Justice Alito doesn't know that most of these warrants are automatic. You don't pay your fine within a certain amount of days. They're issued virtually automatically. Right. And that's exactly what this one was. So it doesn't create an incentive of the kind you were arguing you were worried about before

. Terry doesn't take much. Most officers can articulate some sort of justification. Looking for the warrant and then sending people on their way. So we believe that deterrence would be very well served by adopting our rule. And your deterrence argument doesn't depend at all on statistics. Even without the statistics, our deterrence argument works because the point is a reasonably well-trained officer should know what the parameters of Terry are. This officer did not. So if one in a thousand people has an outstanding warrant, that's enough. So that statistic wouldn't upset your argument. It wouldn't upset my argument because we run warrant officers, run warrant's checks because they're likely to find it. One in 10,000 with that upset your argument. I get to a number where you're going to say. In those communities, then you're going to see much less of this behavior, you know, much less of the running the warrant's check in order to find a warrant. It's going to self-correct. But for the most part, I mean, in the flip side is there's then no reason not to run them if that's the rule. But for the most part, in most communities, the incentive, the other thing is with Utah's rule, it could create an incentive to have even more warrants for even more minor infractions. This was a traffic matter. Many of these warrants in the cases down below are minor traffic matters. What was it we know? Was it a ticket? Do we know? It's not in the record. It's not in the record. But it was referred to as a minor traffic matter. I think the judges and the traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people. My point is only that it creates an incentive to not be as careful it creates an incentive. I'm very surprised that Justice Alito doesn't know that most of these warrants are automatic. You don't pay your fine within a certain amount of days. They're issued virtually automatically. Right. And that's exactly what this one was. So it doesn't create an incentive of the kind you were arguing you were worried about before. I'm sorry. The warrants are automatic. You were suggesting that one thing that will happen is there will be issuing all these warrants if they know they can get evidence from illegal stops. And because the warrants are automatic, they're not going to be issuing all these warrants. Are they? They're automatic in certain circumstances and those circumstances would increase. So they're automatic right now for no insurance or for speeding. They would increase and they'd be automatic for infractions. And the other aspect is the databases and the incentive to keep those databases accurate and up to date. It's our position that this absolutely plays into a deterrence and that Utah's rule would have an overwhelming impact. That would create a powerful incentive for police officers to walk up to people on the street and simply stop them. We're asking, unless there's further questions, that the court affirm the Utah Supreme Court. Thank you. Thank you, Ms. Wat. Mr. Green, you have four minutes remaining. Thank you, Mr. Chief Justice. If I could just make three brief points in response. First, to this suggestion that officers make random stops in order to find a warrant to conduct searches of this type. There's actually no evidence of the, in this record that that's what happened here or that it happens more broadly. In fact, I think the opposite is true. If you look at page. Seeing practice to run warrants checks. Every stop legal or illegal, he says it's, he runs warrants. It's on the street or in a car. Meaning that's what the police office should testify to. He runs them just as so tomorrow for the purposes I think that have been discussed today for safety rationals and other reasons, but there's no actual evidence that he runs. So we now have a new rule

. I'm sorry. The warrants are automatic. You were suggesting that one thing that will happen is there will be issuing all these warrants if they know they can get evidence from illegal stops. And because the warrants are automatic, they're not going to be issuing all these warrants. Are they? They're automatic in certain circumstances and those circumstances would increase. So they're automatic right now for no insurance or for speeding. They would increase and they'd be automatic for infractions. And the other aspect is the databases and the incentive to keep those databases accurate and up to date. It's our position that this absolutely plays into a deterrence and that Utah's rule would have an overwhelming impact. That would create a powerful incentive for police officers to walk up to people on the street and simply stop them. We're asking, unless there's further questions, that the court affirm the Utah Supreme Court. Thank you. Thank you, Ms. Wat. Mr. Green, you have four minutes remaining. Thank you, Mr. Chief Justice. If I could just make three brief points in response. First, to this suggestion that officers make random stops in order to find a warrant to conduct searches of this type. There's actually no evidence of the, in this record that that's what happened here or that it happens more broadly. In fact, I think the opposite is true. If you look at page. Seeing practice to run warrants checks. Every stop legal or illegal, he says it's, he runs warrants. It's on the street or in a car. Meaning that's what the police office should testify to. He runs them just as so tomorrow for the purposes I think that have been discussed today for safety rationals and other reasons, but there's no actual evidence that he runs. So we now have a new rule. We've taken a warrant, running warrants for traffic stops that we've thought were legitimate because they had to do with highway safety. Now we're saying to police officers, run warrants on any name you get. Because all you have to do is wave the flag of safety. No, Your Honor, that's not what we're saying. We're saying that there's a safety rationale for the warrant check. But beyond that, there's also the important flagrency safety valve that we've talked about here. And with respect to this particular warrant check, on page 101 of the appendix to our petition, there is actually a finding from the district court that the reason that this officer stopped, this particular defendant was on suspicion of drug possession or distribution. It wasn't for something else. So that finding is here. And more broadly, this rule, as we've noted in our papers, is in fact the majority rule among the courts that have addressed this issue throughout the country. In the United States, excuse me, in the seventh circuit, the case of the United States versus Green was decided in 1997, almost 20 years ago. And that, of course, involves the states with a large number of metropolitan areas, Chicago, Milwaukee, and Indianapolis. And there's no evidence in this record or before this court that these sort of random stops in order to check for warrants is happening in those jurisdictions. So I think the actual practice and the way it bears out and has borne out in areas where this has been adopted undermines that particular argument. And second, Your Honor, with respect to the question of whether a subjective purpose should come in responding to Justice Kennedy's question to this inquiry. I think if this Court were to do that, it would become an outlier of source in the case in this courts for the amendment jurisprudence. And I think with respect, if it remains an objective inquiry and consistent with the rest of this court's cases, that objective inquiry will capture the flagrant cases. We've cited four cases from four different state courts in our reply brief, one of our reply brief, that's Illinois, Missouri, New Jersey, and Oregon, where the courts that have applied this rule have undertaken the flagrancy inquiry and have, in fact, suppressed evidence because the initial stop was flagrant. Finally, a third point, as we've noted in our briefs, Your Honor, the respondent here has abandoned the Utah Supreme Court's rule that an intervening circumstance must, in fact, be something attributable to the defendant's own free will. We think that's appropriate based on that concession that this court should reverse the judgment of the Utah Supreme Court leaves the question, of course, of what rule to adopt instead. And we think, Your Honor, this intervening circumstance here, this arrest on a preexisting warrant that arises from probable cause based on facts completely unrelated to the circumstances and the facts of this stop is exactly like what happened in Johnson versus Louisiana, which is the case that this Court pointed to in Brown versus Illinois where it adopted and said the intervening circumstance is critical to the attenuation inquiry. It's a straightforward application of that particular test. There are no further questions. Thank you, Council. Hases submitted.

We'll hear argument next in case 14, 13, 73, Utah versus Strife. Mr. Green? Mr. Chief Justice, and may it please the court. Courts typically apply the exclusionary rule to suppress unlawfully seized evidence. The question here is whether to suppress evidence lawfully seized in a search incident to a warrant arrest. Because the arresting officer found the warrant in a stop later judged to be unlawful. Under this court's attenuation analysis, such evidence is admissible. When, as here, the predicate stop was not flagrant but resulted from an objectively reasonable miscalculation. Extending the exclusionary rule. What was subjectively reasonable about it? Well, your Honor. The police officer admits that the person he saw coming out of the house of question wasn't doing anything. He didn't know that he lived there. He didn't know what he had done if anything. He didn't even really know that there was drug dealing going out in the house. He was trying to figure that out. So what was objectively reasonable about stopping this man? Justice Sotomayor, we've admitted that this was a miscalculation, but it was a close call. If the officer here had stopped the first person coming out of the house after receiving the tip, that would have been objectively unreasonable under this court's case and decision in Alabama versus White. But this person wasn't the first person he saw come out of the house. He'd received the anonymous tip and then had proceeded to corroborate it through three hours of surveillance and observation over the course of the ensuing week. And all the traffic he saw during those three hours was the same short state traffic that was reported in the tip. Based on his training and experience, that activity was consistent with drugs. It was the interesting and awaited to see whether this was also a short state visitor. I think you would have- I don't see how this is any different than stopping the first person you see. Well, I think, Your Honor, as we've admitted, I think if he hadn't seen it and it were short state, I think we may well be reasonable suspicion. And I think that's why the prosecutor here conceded that it wasn't. But it wasn't close call based on everything he had seen to that point. And in these circumstances, we think that's why where the predicate conduct was a result of misconduct that was not- What's going to stop police officers if we announce your rule and your rule seems to be, once we have your name, if there's a warrant out on you, that's an attenuating circumstance under every circumstance. What stops us from becoming a police state and just having the police stand on the corner down here and stop every person, ask them for identification, put it through and if a warrant comes up searching them. I think Justice Sotomayor, I think there are two answers to that question. First, I think the R rule- An officer can never count under R rule on finding a warrant. So there is no incentive for him to make that stop. If there's no warrant on the stop, it's awful. If you have a town like Ferguson where 80 percent of the residents have minor traffic warrants out, there may be, and it's a very good incentive for just standing on the street corner in Ferguson and asking every citizen, give me your ID. Let me see your name and let me hope, because I have an 80 percent chance that you're going to have a warrant. Well, I understand, Your Honor. And that's the second part of my answer is that officers can't count under our rule a warrant by itself is not sufficient. There still must be a separate inquiry into whether the predicate stop was flagrant. And an officer can't count in any particular stop on a judge later concluding that the stop was flagrant. But I assume, Mr. Green, that there are a variety of circumstances in which police officers would really like to talk to somebody and really like to search them, but don't have reasonable suspicion. And I think that the question that Justice Sotomayor is asking is, if you're policing a community where there is some significant percentage of people who have a rest of warrants out on them, it really does increase your incentive to make that stop on the chance that there will be a warrant that will allow you to search and admit whatever evidence you gain in that search. I don't, Justice Kagan, I don't think so. I think, again, if the inquiry turns as it does on not only finding a warrant, but then a determination of whether the stop was flagrant, the officer has no guarantee before he makes the stop that the judge will later conclude the stop on the top. But this is an officer who, you say this is a close call. So let's say that there are close calls. But you don't think you have reasonable suspicion or you think you may be do if you find a good judge out there, but you, there's a reason why you want to talk. So this is not a flagrant violation. This is not a drag net search or something like that. But you, if, if, I mean, it does change your incentives quite dramatically, it seems to make, if you are policing a community where there is some significant percentage of people who have a rest warrants. Well, Justice Kagan, I think with respect, it doesn't officers know that the only surefire away the incentive is always to comply with the Fourth Amendment. That's the only way they can be sure that the evidence they are gathering is later used in a prosecutor's office. That's the only way they can be absolutely sure. But here, there's some chance that they're going to find the rest warrant and then they're going to be able to admit the evidence that they're going to get, whereas before, there was none. And that's some chance is not like a once in a blue moon kind of chance. In these very heavily policed areas, it's, I mean, I was staggered by the number of a rest warrants that are out on people. So it's, you know, a significant possibility that you're going to find an arrest warrant and be able to admit whatever drugs or guns or whatever it is you find. I think your honor in those circumstances, that's where the flagrancy inquiry actually does the work of deterrence, because as this Court has explained to be appropriate, suppression must yield appreciable deterrence. There may be some additional marginal deterrence that's suppressing everything following an event like this would yield, but that's never been enough under this court's precedence. Don't you think it's enough of a deterrent to say to a police officer in this situation? You should have reasonable suspicion. You know the fourth amendment requires it. So before you do an intrusive act demanding identification, to do what you're permitted to do, which is just to ask the person whether they'll talk to you. And you think that that would improve the relationship between the public and the police wouldn't that be the appropriate encouragement we would give if we don't let police do these things in questionable situations? I think that's what the existing rule and the exclusionary rule itself does. It encourages officers to comport with the fourth amendment. This applies really as limited. We're encouraging them now from doing that. We're saying if you have questionable probable cause, go ahead and do it, because we're not going to make you take that extra step of just merely stopping someone and saying, will you talk to me, please? No, I don't think so, Your Honor. I think again, because there are two predicate steps that must be, that must happen before this exception would apply. And the officer before the stop can't count on either one. That's why when we are talking about a conduct here that is admittedly a violation of the fourth amendment, but low culpability, that's where the additional marginal deterrence that would come from suppression doesn't do its work. And with respect to the particular type of intervening circumstance here, this is a compelling intervening circumstance of the type that this Court identified in its case, in its holding in Johnson versus Louisiana. Ms. Degrees, you make a point that a person's name is not suppressable. And evidence derived from just knowing the name is not suppressable. If that you write about that, then the police could stop anyone and say, whether I have reasonable suspicion or not, I want to know your name. And that's not suppressable. Then there's the warrant check, which you say is an intervening circumstance. So it seems that your argument is, is alming the police with asking every person, what is your name, and doing the warrant check? Well, Your Honor, it is, of course, that's one of the purposes of a Terry stop of an investigatory stop is to try to find a person's name. I thought you needed reasonable suspicion. That's correct. That's correct. This is the case where you're telling us reasonable suspicion or not, the name of person's name is not suppressable. That's right, Your Honor. But it is admittedly the but-for-link between the initial predicate on lawful stop and the later discovery of the warrant and the arrest on the warrant, which is the intervening circumstance. That's why, Your Honor, we think this is, this falls comfortably within this Court's prior attenuation jurisprudence. Just like that. So what is an intervening circumstance in your view? What is your test for what it is? Your Honor, I think we think under its, it flows naturally from this Court's teaching in Wong-Sung, that is, it's any means sufficiently distinguishable from a predicate on lawful act such that suppressing evidence seized after it would not yield appreciable deterrence. And this Court's case is now. The more view is that we should look at the question of whether something is an intervening circumstance through the deterrence lens, that makes a lot of sense. We look at everything through a deterrence lens with respect to the exclusionary rule. And the, you know, what we're supposed to say is this does this appreciably increase deterrence or not? Is that correct? That's the inquiry, Your Honor. Yes. And so I guess that I'm back to my question. In a world in which finding somebody with an outstanding arrest warrant was an extremely low probability, you would be right. In a world in which it was an extremely high probability, you would be wrong. Then it seems like where is this on the spectrum? What do we know about that? It sure seems, I mean, again, I will come back to this. I was surprised beyond measure by how many people have arrest warrants out there. And particularly in the kind of areas in which these stops typically tend to take place. So that, it seems to me, you know, is a pretty strong argument for why this will increase deterrence. Well, you're, again, I think Justice Kagan, the answer to that is the inquiry here in attenuation is not just, is there an intervening circumstance? Under this Court's prior cases, there still must be something else. And we think that something else, following from this Court's teaching in Brown, is a fegrancy inquiry. What level of culpability does this conduct display? What is the degree? Do you think that something else includes a subjective component, whether there was a purpose to see if there was a warrant? We don't, Your Honor. We think that that inquiry is inconsistent with the way this Court's Fourth Amendment jurisprudence has evolved into an objective. So it is true that that would be a step maybe beyond our cases on the other hand. And if the inquiry is one of fegrancy, then maybe that's necessary. And it may be particularly necessary here because under the line of questioning that Justice Kagan just concluded with you, it would seem odd for this Court to say the higher crime, the more it's a high crime area, the less basis you have to stop. That's very odd. Well, I think, Your Honor, so it seems to me that the subjective purpose component might serve an important purpose here, so that the police officer can't just say, I'm going to see if there's a warrant for this. That's the reason I'm going to stop. That seems to me quite wrong. Well, Justice Kennedy, I think the answer to that question is that in the cases upon which Respondent relies, citing the subjective purpose requirement, those involved in cases involving arrests without probable cause. And in those circumstances, the factors and the facts that we think this Court discussed in those cases go to show the objective unresitableness of those particular actions. We think it's different in the context of a Terry stop where this Court has repeatedly said, courts can make the stop in order to investigate in order to confirm or dispel suspicion. And that's particularly so, Your Honor, with relation to the two-part test that we think this, that we think is appropriate here, where the intervening circumstance is a pre-existing warrant based on probable cause arising from facts completely unrelated to the stop. That type of intervening circumstance matches up precisely with what this Court found in Johnson versus Louisiana, where the intervening circumstance there was a commitment. This is a non-secretary. When you talk about an intervening circumstance, as we've looked at it in a case, lore, it's always been something different than the actual stop. Another police officer comes by and says, oh, I've been searching for that guy. I know he has, I have an arrest warrant for him. A witness walks by on another crime and says, he just robbed me down the block. Those are intervening circumstances because they are something outside of the stop. But this location of evidence was a direct product of the stop. It would never have happened except for the stop. You Honor, we agreed that there's but-for-cause here, but with respect, there was actually something else that happened here. That was that prior finding of probable cause by a neutral and detached magistrate on a crime completely unrelated to the facts of the issue in this particular stop. So in that sense, it does resemble. You know, something finding the baggy of cocaine gives the officer a reason of probable cause to arrest. But we don't let that cocaine come into evidence merely because it was a ground for the arrest. We look at how the evidence was secured before deciding whether it's suppressive or not. And I don't see how this is any different than not letting someone be arrested or suppressing DNA evidence, fingerprint evidence that leads to other crimes. And we've suppressed those things because they've been the product of an illegal stop. And to digest the so-to-myard, we agree with you that if the baggy of cocaine, if an officer had found a baggy of cocaine during an unlawful stop, that's the precise situation where the exclusionary rule would usually apply. What's different here is that the search in which the drugs and the other evidence was found occurred while the suspect was in lawful custody. Respondent has admitted that the arrest warrant was lawful and the arrest was there for lawful. And under this Court's decision in Robinson, once the arrest is lawful, the search incident to it is lawful and all the evidence gathered in any search is lawfully seized. Kagan, you make a statement in reply, Bre, that says, the Fourth Amendment does not require officers to have reasonable suspicion before they check for warrants. If you mean that, then any officers can say, what's your name? I'll check you for a warrant. You're an officer could do that, Your Honor. That's certainly right. But what happened here is that, of course, that request came during the course of a stop that we've conceded was not supported by reasonable suspicion. And so the question is, what happens? Kagan, you say that you mean reasons suspicion. I mean, as I read the sentence, it says, the officer doesn't have to have reasonable suspicion. It can grab you what's your name and check for warrants. And that doesn't violate the Fourth Amendment. Justice Ginsburg, they don't have to have reasonable suspicion to check for warrants. But that's different from making the initial stop where, of course, they do need reasonable suspicion. If there are no further questions, I'd like to reserve them any time. Thank you, counsel. Mr. Bash. Mr. Chief Justice, and may it please the Court. I'd like to start with the concern that Justice O. to my urine, Justice Kagan, have both raised about these communities where there are a lot of outstanding warrants. As a preface, there's a lot of communities where there's not a lot of outstanding warrants, and the rule that responded to wants you to establish would exclude evidence of serious guilt and serious offenses nationwide. But focusing on communities like Ferguson with a lot of outstanding warrants. Sorry. I don't know what to say on why. If there's an arrest warrant for someone, for whatever reason, you can arrest them. What you can't do is stop them illegally to affect and arrest. So it's not as if they're going to get away from whatever the underlying crime was. There's an arrest warrant. They're going to go back and serve their time on whatever circumstance existed, warranting that arrest. Why are they getting away with anything? What's being excluded is evidence of the crime that was found. Of another crime that the police would never have found, but we do that. Well, they might have found it during a separate valid execution, a separate execution of the warrant without a preceding Terry stop. But the evidence found on a person, for example, a firearm can be very serious crimes that are also of significant danger to these communities. But that's true of all evidence we suppress. Now you're attacking our suppression jurisprudence. We understand there's a cost to suppressing evidence, but we believe, as we've been taught by our precedents, that there is value in ensuring that the Fourth Amendment was respected. Of course. And the overarching inquiry always is weighing those very serious costs of excluding evidence of guilt against the deterrent value that you would get to find. So what's our rule now? Now you don't need reasonable suspicion to stop someone. You only need questionable reasonable suspicion to stop someone. And now, so we've now lessened the standard, the Terry start stop standard, which is fairly intrusive to stop someone. I suspect, and I don't know whose brief it was, yours or your petitioners, but someone said the public will stop this if they don't like police stopping you with no cause. I think the public may end up stopping things, but in a way, the police are not going to like. Well, Justice Sotomayor, we're not talking about all Terry cases. We're talking about a class of Terry cases where an intervening event of huge legal significance occurs. It turns out that a neutral magistrate had already found a probable cause to arrest this person. So we're certainly not talking about lowering the Terry standard in all cases. But we're not saying that. But you're going to talk about the statistics, Mr. Bash. Could you do that? And does the United States know the percentage of residents of the United States who have outstanding warrants? We don't know globally. In the reply brief of the petitioner in this case, he cited a study submitted to the Department of Justice in 2004 that looked at two counties. I don't pretend they're representative, but it's a county in Minnesota and Maryland. And it was an extremely low number of warrants per person. And of course, using that number would take the assumption that every warrant is for a different person, which is probably not true. And it would assume that the population reflects the total number of people who could be subject to warrants. But of course, people pass through, people come in and out. So it's probably extremely low. I do take Justice Kagan's point, though, that there are some communities where the warrants are high. I want to focus on that. And what should we be concerned about there? What would prevent the problem in communities like that? Well, it's important to know that respondents rule does nothing to solve the problem that the Department of Justice and its March report, March 2015 report on Ferguson identified. What was going on in Ferguson is that the municipal court in conjunction with the police were using arrest warrants as a revenue raising measure. They were issuing warrants for very minor offenses and failure to appear. And then police officers on the scene had the incentive to arrest people to bring them in to pay the fine. Respondence rule does nothing to solve that, because everybody agrees the arrest is lawful. The Department of Justice did not find even in a community with a significant number of arrest warrants as Ferguson that officers had an incentive to search and that they were acting on an incentive to search people incident. The incentive was to arrest and pay the fine. I take the point, Mr. Bash, but I guess I just don't understand. Of course, this is a nationwide rule that we would be setting. But most Terry stops do not happen in most neighborhoods. Most Terry stops happen in very high crime neighborhoods appropriately. But where people have lots of arrest warrants. And you might be right about this specific Ferguson case, but I still have my question, which is why doesn't that dramatically change the incentives for police officers in deciding whether to search somebody? If you know that there is a significant possibility that somebody you stop is going to have an arrest warrant, that's another reason to stop them. Justice Kagan, I don't think the impure show that the numbers are so great that even in high crime neighborhoods, at least outside of the Ferguson circumstance where you have this odd revenue raising scheme, that the chance of both finding a warrant and then finding contraband in the search and sooner to arrest is so high that it's incentivizing officers to conduct illegal stops solely for the purpose of finding a warrant. That was my point about the importance or the likely importance of purpose in this analysis. I was actually just going to turn to that Justice Kennedy. I think when this court has mentioned flagrancy in cases, not only those cases listing the Brown factors, but also cases like Leon and Herring, what it has been concerned about in part is the notion that once you establish an attenuation principle, what I would say is a common sense principle here that generally in a arrest warrant should be a superseding cause of the discovery of the evidence. You might have an officer exploiting that rule precisely in order to get evidence and searches incident to arrests. So I think the way you could think about flagrancy is did this officer have the purpose, and it could either be a purpose objectively understood from all of the facts, or it could be a subjective purpose to exploit this attenuation exception precisely in order to search incident to arrest. I don't think the facts here remotely get there. I don't really think even respondent has argued that. This was a legitimate investigation. The officer may have made a mistake about the quantum of suspicion necessary. But if you had a case where an officer truly, either objectively or subjectively, is going out, just pulling random people over because he now knows about this attenuation rule established in this case, I think that's the sort of flagrancy consideration in cases like Leon and Herring. This Court has left as a safety valve. But does that mean that we're going to have to in every single case explore the officer's subjective motivations? Because that sounds like the kind inquiry that we've tried to stay away from in the past. Justice Kagan, Justice Kennedy suggested subjective motivations, and I think that has some support in the earlier attenuation cases like Brown and Dunnoway and Taylor, where it really did seem to be that the Court was inquiring about purpose. And it also has some support in doctrines like inevitable discovery, which does ask, you know, what were you going to do in the fact? In more recent cases, the Court has moved towards an objective test. So I think the way the Court could formulate the flagrancy safety valve in this case is to say, does this stop a peer objectively designed to exploit the ability to search incident to arrest on a warrant? And it could look at all the circumstances. It could look at the fact that this wasn't incident to any legitimate investigation. It could look to the fact that the officer pulled over several people and searched in for warrants in the same incident. I think it could have that safety valve, which would have the effect of preserving cases like this one, where an officer is acting in good faith, and someone is found with very serious evidence on drug trafficking or a firearm. And it would make it to the point where we no longer have reasonable suspicion at all. Because you keep defending this stop. And I keep going back to he has an anonymous call. He does see a certain number of short-stay visits, but he stops someone who he doesn't know has been a short-stay visit, has not seen there before, knows nothing about this person, and is doing a complete, intrusive stop. Not just, hey, will you talk to me, stop? But a formal, investigatory stop on nothing else. Just a sort of respect for it. I think this was a close case, and I'll just lay out why. Maybe you'll disagree with that. This was an officer with 18 years of experience in several years or a couple years in drug crimes. Got anonymous tip that this was a drug house, observed it intermittently for three hours, and saw short-term traffic that was consistent in his experience and expertise with drug activity. And then someone walked out of the house. That person could have been one of two people. He could have been a short-term visitor, in which case I think most people would agree that it, there'd be cause of stop. Or he could be a long-term resident of that house. And there's not too many houses that are involved in a ongoing drug trafficking or drug sales that the long-term resident of that house wouldn't know about. I mean, this wasn't a pizza delivery man. So it was some- It's a given that there was no reasonable suspicion, and you can argue whether it was, but for all purposes, there was no reasonable suspicion. S. As the case comes to the court, that is correct. Justice Ginsburg, my only point was this isn't the example in my opinion, the mind of the safety valve, flagrancy situation that I was discussing with Justice Kagan and Justice Kennedy. I think the reason that this case comes to us is because the Utah Supreme Court says, you know, this is three things and flagrant. This is all very confusing. And courts are coming out all over the lot, so we want to come up with a simpler test. Do you have, are you say Utah was wrong? The three-prong test that we have now is fine. Would you change in any respect how we look at these attenuation? Well, I don't think the three-prong way is a bad way to look at it. The cases have actually used the three prongs to determine whether a defendant's confession is the product of three-will. Justice Kennedy, I'm sorry. We think it's a fine way to think about this case in the sense of the court could hold super-seating legal authority by a neutral magistrate is an intervening event of significance for the attenuation analysis and suppression would be appropriate only if the stop was flagrant either objectively or subjectively understood. Thank you, counsel. Ms. Wat? Ms. Justice, and may it please the Court. Utah's proposed rule would open the door to abuse. It would create a powerful incentive for police officers to detain citizens without concern for the Fourth Amendment knowing that finding a warrant would wipe the slate clean and render the constitutional violation irrelevant. It would cut the heart out of Terry. It would create a new form of investigation. Officers would be stopping citizens and hunting for warrants. It's already the practice in many communities and if Utah's rule is adopted it will become the norm. It's unnecessary for this Court to take such a sweeping view as Utah has. Would that be true if let's say one half of 1% of the residents of South Salt Lake or Salt Lake City have outstanding warrants? The statistics are important to our argument but not necessary because even without the statistics we know that officers make stops precisely for that reason to find the warrant. That's why they're making the stop. They can target communities and so even if there's just a very minor amount of warrants they can still target communities that may have a greater incidence of warrants. And if this were the rule there would be no downside. Officer? Well, I was sure there's a downside if the officer makes an illegal stop. The officer exposes himself or herself to all sorts of consequences. But you're saying that if the, on the statistic that I gave you if there's a 1 in 200 chance that there's going to be an outstanding warrant, so the officer says, well, I don't know. I have no reason to stop this person. But if I stop 200 people today illegally then I'm going to find one who has an outstanding warrant. You would say that that that gives the officer the incentive to make those 199 illegal stops. Well, it's still precisely why the officer would be doing it. He's running the warrant check. In this, in this facts situation we're talking about about a very narrow set of facts where we have an officer that detained someone and as part of that detention there is a warrant's check. These were not separate things. It was inherent in this stop. And so yes, if an officer is detaining someone under those circumstances and runs a warrant's check, he's doing it precisely. Could you, it's permissible to do a warrant check as part of a lawful Terry stop? A lawful Terry stop? Yes. In our brief, we've referred to Rodriguez and this Court has certainly said that at least in the context of automobile stops, yes. Well, in this case the State, as I understand it, please correct me if I'm wrong, has conceded that the stop was unlawful. It is not conceded that it was flagrantly unlawful. Isn't that correct? Well, that's right. That's right. And so what, but what the position that the State has taken is? So we take the case as one in which there was no, there was no flagrant conduct? So the test under Brown for flagrancy really has two elements. One is whether it was done deliberately or purposefully. And we know from Dunoway and Taylor and Brown itself that that unlawful conduct that is undertaken with the purpose or with the hope of finding something, with the hope that something turns out, is deliberate and is flagrant. And Dunoway tells us that we don't need some overarching flagrancy that that's enough. And so the purpose is important. It's viewed from an objective standpoint. Here we have an officer that told us his purpose, but objectively we do look at purpose, we look at justification. That's how we know the limits of a Terry stop. What's the number? What percentage of people have to have warrants before you can imply that whenever an officer stops someone, it is to, you know, illegally search them because they're very likely to have an arrest warrant. Well, I think that the proper focus, I mean, I don't think breaking it down to numbers is the way to go. I think the proper focus is on deterrence. And we know deterrence is not just- Well, I suppose that's related. I mean, your briefs had a lot of numbers in it. And if only one out of 100 people have arrest warrants, then I think you really couldn't imply that that was the purpose of the stop. If you have- And some of these numbers, obviously you have in particular communities high numbers, but some of them didn't strike me. I was surprised how low they were. 323,000 is a big number, but that's the entire state of Florida. So the officers run warrants because- Warrants checks because they're likely to turn up warrants with- When they target certain- Why is that? Do you know what I mean? Every time a police officer pulls somebody over and runs in a warrants check, it's because he thinks it's likely there's a warrant. Might it be to protect him when he walks up to the car? He'd like to know that the person is wanted for murder, right? So running the warrants check tells him that. That's- When you run the warrants check, you're looking for a warrant. In this case, that's what fact officer Frack-Roll was doing. He wanted to try to find out something about Mr. Strieff, and so he ran the warrants check. These kinds of stops, it is- But I guess- I mean, you do require us to determine whether or not he ran the warrants check to ensure his safety in this interaction or as an investigative matter. I mean, does that make a difference? It makes a difference in the sense that when there is a stop that is made, that the warrants check is inherent in that stop. So I guess my answer is no, it doesn't make a difference because when- Why wouldn't it- Why wouldn't it- Look at our case, Rodriguez case. We assumed that the check there was to ensure the safety of the officer. That's right. All right? Right. If the stop here is purely investigatory, isn't that different? Can you have an investigatory stop based on no suspicion? You were right when you said he stopped to check for the warrants. The question is Justice Kennedy's question, which is- Is that legitimate? Can- Can you have an investigative stop to check for a warrant without reasonable suspicion or with- Without you cannot. You cannot- The officer cannot detain someone without reasonable suspicion to run a warrants check. As I understand your position, you don't argue that the arrest was unlawful, is that right? We don't. We have never told you. So the arrest was lawful and when the officer is making the arrest, it's permissible for safety purposes for the officer to frisk the person who's being arrested. Do you agree with that? Yes. So it's a lawful search, correct? We've never challenged the search. Isn't it- Can you- Can you give me one other example of a situation in which this court has held that the fruit of a lawful search must be suppressed? I don't have another case in this precise circumstance. Our position throughout- Well, in any circumstance. So this case has not come before the court. We know that an arrest warrant is not always an intervening circumstance. It wasn't one in Taylor versus Alabama. And- And even Utah and the solicitor general don't take the position that just the- the arrest and the search incident to arrest are enough because they've conceded the dragnets that- that any evidence that's found in a dragnet is a fruit. And- And so that's- I'm just pointing it out that that's a curiosity, isn't it? To have a lot- to suppress the fruit of a lawful search and maybe you need strong circumstances to justify such an unusual and unprecedented result. Well, our position is these are strong circumstances because part of deterrence, the value of deterrence is found in the strength of the incentive to violate the Constitution. And- And you- I do- I do- I do- I do- You- Go ahead. He said you don't question at all the arrest. And you don't question one series in arrest the path down for drugs. I mean, the path down for guns. But are you saying that the arrest for the warrant that has- is a totally different crime? Doesn't permit you to search for evidence. It only permits the officer to protect himself by patting down for weapons, is that? Well, our position is that anything that's found is the fruit of that- of that illegal detention, not of the arrest because the- the arrest and- and ultimate- and subsequent search are- are fruit. But- but they're not- suppressive- they're not something that we have fought against because again, we have the warrant and authorization. But if the individual is going to be arrested and put in jail, isn't it standard procedure and lawful procedure for the authorities to search that person thoroughly? They couldn't have the person bring drugs into- into the jail or things that the person might use to hurt himself or other people. It would still be a fruit. So it would- well, what does that mean? It's- but it's not- it does- that's lawful conduct on their part, right? Right. Okay. But so you're asking for the suppression of the fruit of a lawful search. What we're asking for is the suppression based on the unlawful detention that began the encounter. So- so this encounter begins with the stop. The stop itself is- is unlawful. The state has conceded that throughout. So what's- what's the problem with that stop? This is a stop. The kind of stop that lawyer- I'm sorry- that officers are faced with every day. It's a basic kind of stop. It- what- what do we know about Terry's stops? The officers have to- have to have a reasonable, articulable suspicion. Cortes tells us that it's really a two-step assessment. They have to number one look at the totality of the circumstances. And number two, they then have to look at whether there's an individualized suspicion. Does this tie in with this defendant? So in this case, what does the officer know? All he knows is that there's some short, not terribly frequent short-state traffic at the house. He sees my client emerge from the house, knows nothing else. So even under the totality, a reasonably well-trained officer should have known this stop was not- was bad. So you're arguing something that the state's conceded, right? Well, I think it's important because the state has taken the position that- that this was just a factor to shy of- of what was needed. And being a factor to shy of Terry leaves us with nothing. Terry is already a fairly low standard. But you still have to say that it's flagrant. Well, my position is- is twofold. One, that- that flagrancy has two aspects. One aspect is just the deliberate aspect. And that in- in this type of a stop where- where it's made for the purpose of- of running the warrants check, if the- the warrants check is inherent in the stop, that- that's enough. But secondly, if we were going to include a different definition, it would be that it was blatantly unconstitutional. And so that's why I'm moving into the stop to talk about what was the problem with this stop? What do we expect of our police officers? What do we need from our police officers? You said that the- the stop was made for the purpose of running for the arrest warrants. I just don't know the basis for that. Other than you statistics that in certain areas there are a high number of arrest warrants. In many areas there aren't. I mean, is it entirely empirical? Do we have to accept and generalize from your empirical evidence which- that the purpose must be to- execute- or to check for arrest warrants? No, because we know that that's precisely what- what was done in this case, what is done in some other cases. In this case we- we have an officer that makes a stop and he immediately runs that warrants check. How did he- immediately runs the arrest warrants check when he makes the stop because he wants to know who he's dealing with? It'd be- it'd be, I think, bad police work to not run the warrants check until after you've had an interaction with the person when the danger that you could have found out about might have been when it's too late to- to act on it. The- the way he finds out who he's dealing with is if there's a warrant. The point is he didn't have a reasonable suspicion to stop my client. And so- No, I understand that. But you're- you're implying- I'm still trying to get it. How you decide what the purpose was. In your brief you say several times, or the purpose is to run the warrants check. And I just wanted to why that's- why that's the case. Because it was immediate, it was inherent in what he did, because he stated that his purpose in- in- in- stopping my client was to find out about my- find out about the house, and that it was normal for him to run a warrants check and normal for him to know- want to know who he's dealing with. So we now just- that's saying that the warrant check is something he does when he arrests people. I- I don't doubt that. But it doesn't prove that that was his purpose in- in- in the stop. So the intended consequence of running a warrants check is to find a warrant. Number one. And number two, our statistics show that- that in- in a sizeable number- its officers are likely to find warrants. The other concern is if you- the whole- the purpose of this stop was to run the warrants check. I thought the purpose of stock with the finite was going- what was going on in the house. I- I think that when- when an officer- records this doesn't support the- the first proposition that I make. When an officer detains someone as part of a fishing expedition, in the hope that something will turn up, that is- that is the purpose that is a prop. There was no suspicion here. He was- your client wasn't Frisk. S. I'm sorry, wasn't Frisk? There was no activity that the officer is alleged to have seen that would put the officer in fear of any kind- that this gentleman was violent or was going to turn on him or do anything else. Correct? Correct. So the purpose, as I understand what you're trying to say is, he is now routinely checking every single person that he stops whether with or without reasonable suspicion. There can't be any other reason other than he wants to find a warrant or not. But that's- so part of the stop may be to investigate, but the other part of the stop is he's doing this routine lead with no reasonable suspicion with no articulable fear of his for his own safety. He's demanding people's names and he's running a warrant to do what? You're saying to find the warrant. Exactly. How often are- people stop driving and an officer walks up to the car and they're shot? Does that happen a fair amount of time? It does happen. So is there no other reason for checking to see if there are warrants out for that person before you walk up to the car or before you conduct an inquiry with the ticket? Well, it seems to me not wanting to get shot, it's a pretty good reason. But this presents a completely different scenario. This officer approached Mr. Strief. He knew very little about him. As a matter of deterrence, a reasonably well-trained officer would have known, should have known, that there wasn't enough there, because he didn't know anything about my client. There was no individualized suspicion. And- Well, we don't know very much about exactly what happened here, which is unfortunate. But what the officer testified was that he didn't just grab this guy and say, give me an ID and then run a warrants check. He did say that he approached him and he said, identified himself. He said he thought there might be drug activity going on in the house. And he asked him to tell- he said, I asked him to tell me what he was doing there. Now, we don't even know what he- unless it's someplace else in this record, we don't even know what your client said, but he could have said, what am I doing there? Yeah, I live there, or my mother lives there, or my best friend lives there. But whatever we don't know what he said, but then at some later point, he ran a warrants check. So how can we infer from that that the whole point of the stop was to run the warrants check? So a really important part of the officer's testimony was that he didn't remember what that answer was. So if my client had said, I went in there because there's someone who's ill, and I've been visiting for, you know, 20 minutes, or this is where my friend lives. That's why I was there. End of inquiry. And the warrants check shouldn't have been run. A reasonably well-trained officer should know. The important part of this case is that if we're only looking at- we're not just looking at deterring officer fat-rowed. We're looking at deterring future conduct by officers. And the tarry limitation is something we want our officers to know. It's fairly straightforward. This is a fairly straightforward case that is going on every day in this country. We're officers are looking at houses, watching houses that maybe might have drug trafficking going on. They're trying to establish probable cause. Case laws are relatively clear about what you need to get probable cause on a house. It's also relatively clear about what you need to get individualized suspicion. We know from Cortez we need those two elements. We also know from Ibarra that just being in proximity to other people is not enough. Even when the officers have probable cause to search or probable cause to arrest someone, if you're standing right there, it's not enough. So it should be clear to an officer that my client leaving a house that he doesn't even have probable cause on, that he's trying to find something out about. Well, all he did was go from the house to a convenience store, not in a car, but walking. He walks to a convenience store. He stopped in the parking garage without a car. And I go back to this is not coming up to a parked automobile and getting shot, correct? Right, right. Would your rule apply in that situation? Well, when an officer makes a stop, a car. And would your rule apply in a situation where the officer approaches the car for a purpose that is later found to be insufficient under Terry? You would suppress whatever evidence is found in that situation too, right? If the officer did not have a reasonable suspicion for the stop. Okay. So it would apply in the stopping of the automobile situation. It would. But again, in these cases, if there is a warrant, we have to be careful. We haven't argued about the warrant itself. Our concern is the random stops. And our concern is not just for my client. It's for all of those innocent citizens that are walking around, that are stopped, that a warrant's check is run, and nothing comes up. And then they're sent on their way. There's no oversight. The officer is encouraged to engage in a catch and release type of approach with our citizenry. And Utah's rule would be something that would create that incentive. In your brief, you took the position that an event is intervening only if it is unforeseeable. Well, our position is that an intervening circumstance needs to be independent. And it needs to be a break in the causal chain. And that when a warrant is run, and it needs to be something that is not directly related to the officer's conduct. And so because the warrant's check is an inherent part of the detention, it's not an intervening circumstance. And that's something that the Utah Supreme Court unanimously agreed with and that's sent in the Utah Court of Appeals as well. Agreed that this is a natural and foreseeable consequence. It is the intended result. It is not something that is independent, that comes as a surprise. And that's really consistent with this Court's case law and dealing with intervening circumstances. Spontaneous confessions are something that are independent. They break the chain. We look at free will, and that's independent and breaks the chain, witness testimony. But here, there was no break. It was a direct result of the officer's conduct. The rule that we are really asking the Court to adopt follows settled exclusionary rule case law. And that is that if there is the bad stop, it's suppressed unless there is attenuation. And of course, if there hadn't been a warrant, if the officer had just stopped my client and searched him, I don't think anyone is contesting that that would just simply be suppressed without attenuation. And in this case, there was no attenuation as well because all three of the factors that this Court has looked at work in favor of suppression. The temporal proximity works with us obviously. It was contemporaneous. It was immediate. It was inherent. It's not an intervening circumstance because it's not independent. And it's not a break in the causal chain. And it was deliberate conduct on this officer's part that was blatantly unconstitutional. You disagree with Judge Friendly's analysis in the Friedland case? In what respect? Well, with his analysis, as I understand it took the position opposite to what you are arguing. And I just want to know if you have a basis for distinguishing that precedent. I guess I don't. So our position is that this falls squarely within the Court's settled case law. We're asking that the Utah Supreme Court be upheld. You agree that attenuation is based on deterrence. That the attenuation determination is based on a calculation of the deterrent effect of the ruling. I do. I do. I agree that the focus is on deterrence. And I think that in this circumstance, there's powerful deterrence to adopt our position and to not follow Utah's position. If Utah's position is a doubted part of deterrence is looking at the incentive to violate the Constitution and looking forward to see what would happen with the rule. And under Utah's rule, there would be nothing to stop police officers from stopping people on the street, articulating something. Terry doesn't take much. Most officers can articulate some sort of justification. Looking for the warrant and then sending people on their way. So we believe that deterrence would be very well served by adopting our rule. And your deterrence argument doesn't depend at all on statistics. Even without the statistics, our deterrence argument works because the point is a reasonably well-trained officer should know what the parameters of Terry are. This officer did not. So if one in a thousand people has an outstanding warrant, that's enough. So that statistic wouldn't upset your argument. It wouldn't upset my argument because we run warrant officers, run warrant's checks because they're likely to find it. One in 10,000 with that upset your argument. I get to a number where you're going to say. In those communities, then you're going to see much less of this behavior, you know, much less of the running the warrant's check in order to find a warrant. It's going to self-correct. But for the most part, I mean, in the flip side is there's then no reason not to run them if that's the rule. But for the most part, in most communities, the incentive, the other thing is with Utah's rule, it could create an incentive to have even more warrants for even more minor infractions. This was a traffic matter. Many of these warrants in the cases down below are minor traffic matters. What was it we know? Was it a ticket? Do we know? It's not in the record. It's not in the record. But it was referred to as a minor traffic matter. I think the judges and the traffic courts are going to start issuing lots of warrants because they want to provide a basis for randomly stopping people. My point is only that it creates an incentive to not be as careful it creates an incentive. I'm very surprised that Justice Alito doesn't know that most of these warrants are automatic. You don't pay your fine within a certain amount of days. They're issued virtually automatically. Right. And that's exactly what this one was. So it doesn't create an incentive of the kind you were arguing you were worried about before. I'm sorry. The warrants are automatic. You were suggesting that one thing that will happen is there will be issuing all these warrants if they know they can get evidence from illegal stops. And because the warrants are automatic, they're not going to be issuing all these warrants. Are they? They're automatic in certain circumstances and those circumstances would increase. So they're automatic right now for no insurance or for speeding. They would increase and they'd be automatic for infractions. And the other aspect is the databases and the incentive to keep those databases accurate and up to date. It's our position that this absolutely plays into a deterrence and that Utah's rule would have an overwhelming impact. That would create a powerful incentive for police officers to walk up to people on the street and simply stop them. We're asking, unless there's further questions, that the court affirm the Utah Supreme Court. Thank you. Thank you, Ms. Wat. Mr. Green, you have four minutes remaining. Thank you, Mr. Chief Justice. If I could just make three brief points in response. First, to this suggestion that officers make random stops in order to find a warrant to conduct searches of this type. There's actually no evidence of the, in this record that that's what happened here or that it happens more broadly. In fact, I think the opposite is true. If you look at page. Seeing practice to run warrants checks. Every stop legal or illegal, he says it's, he runs warrants. It's on the street or in a car. Meaning that's what the police office should testify to. He runs them just as so tomorrow for the purposes I think that have been discussed today for safety rationals and other reasons, but there's no actual evidence that he runs. So we now have a new rule. We've taken a warrant, running warrants for traffic stops that we've thought were legitimate because they had to do with highway safety. Now we're saying to police officers, run warrants on any name you get. Because all you have to do is wave the flag of safety. No, Your Honor, that's not what we're saying. We're saying that there's a safety rationale for the warrant check. But beyond that, there's also the important flagrency safety valve that we've talked about here. And with respect to this particular warrant check, on page 101 of the appendix to our petition, there is actually a finding from the district court that the reason that this officer stopped, this particular defendant was on suspicion of drug possession or distribution. It wasn't for something else. So that finding is here. And more broadly, this rule, as we've noted in our papers, is in fact the majority rule among the courts that have addressed this issue throughout the country. In the United States, excuse me, in the seventh circuit, the case of the United States versus Green was decided in 1997, almost 20 years ago. And that, of course, involves the states with a large number of metropolitan areas, Chicago, Milwaukee, and Indianapolis. And there's no evidence in this record or before this court that these sort of random stops in order to check for warrants is happening in those jurisdictions. So I think the actual practice and the way it bears out and has borne out in areas where this has been adopted undermines that particular argument. And second, Your Honor, with respect to the question of whether a subjective purpose should come in responding to Justice Kennedy's question to this inquiry. I think if this Court were to do that, it would become an outlier of source in the case in this courts for the amendment jurisprudence. And I think with respect, if it remains an objective inquiry and consistent with the rest of this court's cases, that objective inquiry will capture the flagrant cases. We've cited four cases from four different state courts in our reply brief, one of our reply brief, that's Illinois, Missouri, New Jersey, and Oregon, where the courts that have applied this rule have undertaken the flagrancy inquiry and have, in fact, suppressed evidence because the initial stop was flagrant. Finally, a third point, as we've noted in our briefs, Your Honor, the respondent here has abandoned the Utah Supreme Court's rule that an intervening circumstance must, in fact, be something attributable to the defendant's own free will. We think that's appropriate based on that concession that this court should reverse the judgment of the Utah Supreme Court leaves the question, of course, of what rule to adopt instead. And we think, Your Honor, this intervening circumstance here, this arrest on a preexisting warrant that arises from probable cause based on facts completely unrelated to the circumstances and the facts of this stop is exactly like what happened in Johnson versus Louisiana, which is the case that this Court pointed to in Brown versus Illinois where it adopted and said the intervening circumstance is critical to the attenuation inquiry. It's a straightforward application of that particular test. There are no further questions. Thank you, Council. Hases submitted