Clarence Thomas Manages to Be Wrong Even When He’s on the Right Side

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Clarence Thomas Manages to Be Wrong Even When He’s on the Right Side

Imani Gandy

Justice Thomas' concurring opinion in Collins v. Virginia makes clear that he is living in a fantasy of his own creation—not the reality where Black people are routinely stripped of their Fourth Amendment rights.

In an 8-1 decision last week, the U.S. Supreme Court issued a ruling in Collins v. Virginia, which strengthens what relatively anemic Fourth Amendment rights we still have left. Justice Sonia Sotomayor delivered the majority opinion, ruling that the automobile exception to the Fourth Amendment’s search warrant requirement does not extend to a vehicle on the “curtilage” of a person’s home. (“Curtilage” is a fancy—and rather unpleasant sounding—word that describes the area of land immediately surrounding a house, including closely associated buildings or structures like woodsheds and garages.) In other words, if a vehicle is in that region, the police can’t enter it without a warrant.

Collins is an important decision that curtails the further chipping away of our Fourth Amendment rights against unreasonable search and seizure. Justice Samuel Alito was the only justice to rule in the minority. Even Justice Clarence Thomas got onboard—but his concurring opinion makes clear that he would actually roll those rights back further if he could.

Generally, the Fourth Amendment requires police to obtain a search warrant before they can search you or search through your shit. If the cops violate your Fourth Amendment rights, then any evidence obtained as a result of those violations may be suppressed or excluded in criminal court. This is known as the exclusionary rule.

There are exceptions to the exclusionary rule, of course. Sometimes “exigent circumstances” justify a warrantless search. If, for example, an officer or another person is in danger, the police may enter a home or other dwelling even if they don’t have a search warrant. (This is why in movies you frequently hear cops pretend to hear a baby crying to justify busting through a door.) Cops can also enter your home without a warrant if a reasonable person would believe it was necessary to prevent the destruction of evidence or the escape of a suspect.

The exception at issue in Collins v. Virginia was the automobile exception: If police have probable cause to believe that there’s evidence of a crime in a car, the automobile exception permits a warrantless search of that car. (Otherwise, a suspect could elude capture by simply driving to another jurisdiction not covered by the search warrant.)

But does the automobile exception extend to parked vehicles in a driveway? That was the question the Court faced in Collins, where Virginia wanted to extend the automobile exception to the point of absurdity.

The case stems from a high-speed chase that took place in Albemarle County, Virginia, back in 2013. After two cops in the Albemarle Police Department were given the slip by a speeding motorcyclist on a stolen orange and black Suzuki, one of the cops, Officer David Rhodes, found pictures of an orange and black motorcycle on Ryan Collins’ Facebook page. The cop tracked down the address of the house, entered the property, and saw what he thought was the motorcycle they were looking for stored under a tarp in the driveway of the house. He pulled the tarp off—revealing an orange and black Suzuki. When he ran the plates, he confirmed that the motorcycle was stolen. Officer Rhodes waited for Collins to get home; when Collins did, Rhodes arrested him.

After a grand jury indicted Collins for receiving stolen property, Collins filed a motion asking the court to throw out the evidence Rhodes obtained by searching the motorcycle without a warrant. Collins argued that the evidence was “fruit of the poisonous tree” and therefore should be excluded from trial.

If you’ve ever seen an episode of Law and Order, you’ve likely heard the phrase “fruit of the poisonous tree.” It’s a metaphor for evidence that is obtained through illegal searches in violation of the Fourth Amendment.

It used to be that evidence obtained through illegal searches was perfectly admissible in federal court.

“But wait,” you may be thinking. “Doesn’t that make the Fourth Amendment toothless?”

Yes. It does.

For nearly a century, the Fourth Amendment’s protections were illusory. Although federal agents were technically required to obtain search warrants, any evidence seized without obtaining a search warrant was still admissible in court. That changed in 1914, when the Supreme Court issued its ruling in Weeks v. United States. In Weeks, the Court created the exclusionary rule. At the time, however, the rule applied only in federal courts.

It wasn’t until nearly 50 years later that the Supreme Court made the rule applicable to the states in a case called Mapp v. Ohio. In Mapp, a group of police officers were looking for a man suspected of bombing Don King’s house; they thought the man was hiding in Dollree Mapp’s house. She refused to let them in without seeing a warrant, which they didn’t have. Several hours later, detectives and more uniformed officers arrived on the scene. The lead detective told Mapp that he had a warrant and waved a piece of paper in front of her face. Mapp grabbed the piece of paper and shoved it into her blouse. The detective shoved his hand into her blouse—demonstrating, yet again, the utter disrespect that police have when it comes to Black women’s bodies—and grabbed it back. They then handcuffed her for being “belligerent.” (Where have I heard that before?)

The cops searched Mapp’s house and didn’t find who they were looking for. But they did find some pencil sketches that they said were sexually explicit. They charged her with possession of obscene materials, which is a felony.

At the time the case made its way to the Supreme Court, in 1961, about two-thirds of the states, including Ohio, did not have an exclusionary rule. That meant police were free to barge into people’s houses regardless of whether they had a warrant or probable cause to be there, and any evidence collected would be used to funnel Black people into prison. The Supreme Court, noting that the cops never proved that the warrant even existed, ruled that in some cases, state courts must suppress evidence obtained through illegal searches.

This decision was a game changer, especially when it came to the infringement of Black people’s civil rights.

“The illegal entry of Mapp’s house by the police was nothing extraordinary; it was an everyday fact of life for black and other racial minorities,” writes Case Western Reserve University School of Law Professor Lewis R. Katz in an article titled “Mapp After Forty Years: Its Impact on Race in America.”

Katz continues: “Police throughout America were part of the machinery of keeping blacks ‘in their place,’ ignoring constitutional guarantees against unreasonable arrests and searches and those that barred use of ‘third-degree’ tactics when questioning suspects.”

Given this history, it seems unfathomable that Thomas would advocate for dispensing with the exclusionary rule in his concurring opinion.

Justices write concurring opinions when they agree with the outcome of a case, but not with the majority’s reasoning. While concurring opinions have no value in terms of precedent because they are not legally binding, they can signal a different way of arguing a case to attorneys, and a different way of ruling on a case to appellate judges. This, in turn, can lead to changes in the law.

Viewing the case through the eyes of the Founding Fathers, as all good originalists do, Thomas notes in his concurring opinion that the framers would be confused by the exclusionary rule because no such rule existed at the time: “Historically, the only remedies for unconstitutional searches and seizures were ‘tort suits’ and ‘self-help,’” he writes.

In other words, Thomas evidently thinks the remedy for illegal searches on a state level should be as it was in common law: tort suits (i.e., lawsuits filed against cops for civil issues like assault or infliction of emotional distress) and something called “self-help,” which refers to people enforcing their rights without resorting to courts. Back in the day, if the constable unlawfully seized your shit, you could just go and seize it back. That’s what “self-help” means.

But how is that supposed to work in the era of civil asset forfeiture,  when police too often “shoot Black people first; ask questions later”? Are innocent Black suspects supposed to storm police headquarters to retrieve their illegally seized property and hope that the police are familiar with common law?

In the real world, the police shoot Black people who step out of line. If Thomas thinks that the right of “self-help” exists across the board in this country, then he has a deep misunderstanding of policing in the 21st century.

It’s absurd. (Although, to Thomas’ credit, at least he’s consistent—he would also do away with qualified immunity, as he wrote in his concurrence in Ziglar v. Abbasi last year, which frequently immunizes police accused of brutality from liability. The elimination of qualified immunity would pave the way for victims to file tort suits against cops. Still, he must realize that most juries aren’t going to rule in favor of a Black defendant suing a police officer for assault.)

The decimation of the state exclusionary rule as outlined in Mapp v. Ohio would result in an increase in existing tension between the police and Black communities. No longer would cops be deterred by the threat of their illegally collected evidence being thrown out in court. Cops will be emboldened to trample even further on the constitutional rights of Black people, banging down doors and generally terrorizing Black people.

But Thomas doesn’t seem to care. In fact, he rarely seems to care about the systemic racism built into the criminal justice system—even when his white colleague Chief Justice John Roberts does. When it comes to issues of race, Thomas is almost always on the wrong side. His hyperfocus on originalism, also known as the viewpoints of a bunch of white dudes in wigs who thought Black people weren’t human and that women were property, makes it virtually impossible for him to update his jurisprudence for the 21st century.

It’s as if Thomas is living in a fantasy of his own creation, not the reality where Black people are routinely stripped of their Fourth Amendment rights—among others—and arrested, charged, and convicted of crimes without the due process afforded to white people. I keep hoping that one day Thomas will realize the damage that his jurisprudence is doing to the Black community. But as my dad used to say, you can hope in one hand and shit in the other, and see which one fills up first.

Still, Thomas voted the right way on this one—and that’s got to account for something, doesn’t it?

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