The U.S. Supreme Court is hearing oral argument today in the case of Utah v. Strieff, a case involving the legal and practical consequences of an illegal warrantless police stop and demand for ID from a pedestrian on the street, in circumstances in which the police concede that they had no probable cause and not even any reasonable, articulable suspicion that the person they stopped and required to show ID had committed any crime.

After illegally stopping Mr. Strieff, and while illegally detaining him, the police illegally demanded that if he had any ID, he hand it over to the police — which, under duress, he did.  From this illegally seized evidence of Mr. Strieff’s identity, the police determined that there was an outstanding warrant for his arrest in relation to an accusation of a minor traffic violation.

All of this, and the illegality of each step in this process, the police now concede.

After arresting Mr. Stieff on the basis of the outstanding traffic warrant, the police searched him “incident to the arrest” and found evidence of unrelated but more serious violations of drug laws.  Mr. Stieff was charged with drug law violations, and convicted on the basis of the evidence found during the search “incident to” his arrest on the traffic warrant. The Supreme Court record is silent on whether Mr. Stieff was ever brought to trial, much less convicted, for the petty traffic offense for which the warrant had been issued and for which he was originally arrested.

Mr. Stieff hasn’t even tried to seek damages from the police for the illegal stop, illegal detention, and illegal demand for ID. All he is challenging, under the “exclusionary rule” for evidence obtained as a result of illegal police conduct, is the “suppression” from use as evidence against him of the drugs and paraphernalia found when he was searched.  So the case has been analyzed mainly in terms of the arcana of the exclusionary rule.

That’s important, but another way to describe this case is as being about whether the police get a free pass for illegal dragnet demands for ID if it subsequently turns out that there was a warrant for a person’s arrest.   If the Supreme Court agrees, police will be able, with de facto impunity, to stop anyone on the street, on an unwarranted “fishing expedition”, on the basis of racial or other profiling, or for any reason or no reason at all, and demand, “Your papers, please!”  That’s a demand which, in the context of police detention, renders the word “please” hypocritical.

As the briefs filed with the Supreme Court by Mr. Stieff and friends of the court including the ACLU and EPIC point out, there are tens of millions of arrest warrants outstanding in the US at any given time.  Many, perhaps most, of those warrants have been issued in conjunction with petty offenses, and/or for failure to appear in court. Many of the people for whom arrest warrants have been issued have not (yet) been convicted of the alleged offense in relation to which the warrant was issued, and many of them are never convicted of any offense. Warrants aren’t typically time-limited or self-sunsetting. They can, and often do, remain outstanding and enforceable indefinitely even after the underlying charges have been disposed of.

Because arrest warrants aren’t uniformly distributed, but are issued disproportionately against people in certain communities, there are neighborhoods where there are outstanding warrants for the arrest of a substantial percentage of people on the street, especially pedestrians who are on average lower income than people in motor vehicles. If the subsequent discovery of an arrest warrant, made possible only by an admittedly illegal ID demand, can retroactively justify the consequences of an otherwise illegal search, then everyone on the street or in any other public place is at risk of such dragnet stop and ID demands.

This case will play a key role in determining whether “stop and ID” will become the new justification for “stop and frisk” when police have no excuse for either.