On Monday, a divided U.S. Supreme Court ruled that in some cases, evidence of a crime can be used against a defendant even if police obtained it illegally. According to the Associated Press, the 5-3 decision drew “heated dissents from liberal justices who warned that the outcome would encourage police to violate people’s rights.” The ruling comes in a case in which South Salt Lake City Police Department narcotics detective Douglas Fackrell stopped defendant Joseph Edward Strieff in 2006. Fackrell suspected Strieff of being involved in drug activity, but didn’t actually have “reasonable suspicion,” which is required by the U.S. Constitution for investigatory stops.

The Atlantic reports that during questioning, Fackrell “relayed Strieff’s personal information to a police dispatcher—a routine practice during police stops—and learned Strieff had an outstanding traffic warrant.” The detective then arrested Strieff based on that warrant, and found a small amount of methamphetamine on his person; Strieff was charged and convicted for unlawful possession. On Fackrell, U.S. Justice Sonia Sotomayor wrote in her popular dissent, "In his search for lawbreaking, the officer in this case himself broke the law."

She said:

The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.

Typically, evidence found during illegal searches can’t be used in court under the Fourth Amendment’s exclusionary rule. I spoke to a retired high-ranking investigative affairs detective who worked with the New York Police Department for 22 years and wishes to remain anonymous. He explained that the point of the exclusionary rule is simple: to “punish police officers and deter misconduct.” When I asked if the Strieff ruling means that police officers can now break the law to enforce the law, he disagreed and said the ruling maintained the good faith exception to the exclusionary rule, which says that if officers have “reasonable, good faith belief that they were acting according to legal authority...the illegally seized evidence is admissible.”

He elaborated that the good faith exception is also supposed to deter officers from and hold them accountable for obtaining evidence illegally, saying that if an officer is “ill-intended” or “deliberately circumventing the law,” then anything that comes from that search should still be suppressed under the Strieff ruling.

But complications arise in individual cases, when it’s unclear whether or not an officer had ill intentions, or whether the officer invoked the good faith exception by lying and saying they believed they acted legally at the time. The anonymous source said this has been a gray area for decades: “We’re always reluctant to change these pipeline rules of what will and what won’t be good because police work is so dynamic...I think you have to look at each act and look at all the factors that predicted the stop to see what the officer’s intentions are.”

In an ideal world, we would be able to examine court cases on an individual basis. But, as Sotomayor wrote, “Respectfully, nothing about this case is isolated.” She continued:

I do not doubt that most officers act in “good faith” and do not set out to break the law. That does not mean these stops are “isolated instance[s] of negligence,” however. Many are the product of institutionalized training procedures. The New York City Police Department long trained officers to, in the words of a District Judge, “stop and question first, develop reasonable suspicion later.”

I also spoke to Jeffery Robinson, deputy legal director and director of center for justice at ACLU, who agreed with Sotomayor and encourages everyone to read her “devastating” dissent. “What the ruling yesterday says is that a police officer can stop you for virtually no reason, ask for your identification, run your name to see if you have a warrant, and if you have a warrant, then you can be arrested,” Robinson explained. “This is like the movies from the 30s and 40s looking at countries heading into World War 2 and the old line, ‘Can I have your papers?’”

Robinson said that anyone with an outstanding warrant—including traffic warrants—"can now be stopped without any reason by a police officer.” He added that the number of outstanding traffic warrants in America are huge; indeed, a U.S. Department of Justice report found that three in four Ferguson residents had outstanding warrants. Sotomayor cited that report in her dissent, noting that the Strieff ruling will disproportionately affect black and brown people:

For generations, black and brown parents have given their children “the talk”— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them ... By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged. ​

When I asked Robinson if there was anything citizens could do to seek recourse if they were stopped for no reason, he answered, “Absolutely nothing, because the Supreme Court has just said that it’s okay.” I mentioned that my anonymous source said that across states, people can still try to sue individual police officers or police departments, but Robinson said these cases are rare and even more rarely successful. “If you are looking for a silver lining in this ruling, it doesn’t exist," he sighed. "This is what we’ve come to in America.”

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