This article links the evolving suppression doctrine to the recent Black Lives matter cases to demonstrate the interrelationship between the Roberts Court's jurisprudence and contemporary challenges that face anyone seeking to prove police culpability. Part I explores the constitutional evolution of the flagrant police abuse suppression standard including its most recent application to a concededly illegal seizure in Utah v. Strieff. Part II examines the problem of proving flagrant police abuse by contemplating the lessons of the Black Lives Matter cases. Part III critically evaluates recent efforts by the Roberts Court to map its increasingly stringent general suppression jurisprudence onto the preexisting, distinct, and more particularized doctrine of attenuation. Part IV locates this analysis within a more global understanding of the social, normative, and educational role of the Supreme Court as articulated nearly a century ago in the personal jurisprudence of Justices Brandeis and echoed today in decisions by Justice Sotomayor. The article concludes by denouncing our legal academic tradition of elevating explorations of theory at the cost of practice analysis. In virtually every area of inquiry, this is an artificial, unhelpful, and distracting divide. In the context of constitutional rights and remedies, theory arguments must incorporate an understanding of real police practices, evidentiary burdens, and the dangers to judicial integrity, social justice, and personal privacy. When theory and practice are properly integrated, evidence of police officer acquittals and non-indictments reveal flaws that should be fatal to the current Court's theoretical speculations about the nature and operation of Fourth Amendment guarantees. Especially in this context, theory is epistemic only when it aids, illuminates, or organizes thinking; but theory repeatedly contradicted by actual evidence is prattle, philosophy, or politics.
Joelle Anne Moreno, Flagrant Police Abuse: Why Black Lives (Also) Matter to the Fourth Amendment, 21 Berkeley J. Crim. L. 36, 75 (2016).