The Good Faith Exception and Changing Law: The Context of the Good Faith Exception

This is my first post in a planned series of posts on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right now thanks to a clash of two recent Fourth Amendment cases, Herring v. United States, — U.S. — (2009) and Arizona v. Gant, 556 U.S. ___ (2009). Herring has language suggesting a broad approach to the good faith exception, while Gant ruled a common and widely-accepted law enforcement practice unconstitutional. The combination of the two cases raises a question: Should the exclusionary rule apply for the many violations that occurred before Gant was handed down, or does the good faith exception apply so the evidence is admitted? Here is post #1: The Context of the Good-Faith Exception.

To understand whether the good faith exception should apply in light of changing law, it is essential to have a broad understanding of the established limits of the exclusionary rule. Whenever the government conducts an unconstitutional search, and that search leads to evidence, whether the exclusionary remedy applies depends on three basic questions:

1. Is there sufficient connection between the constitutional violation and the discovery of the evidence to warrant suppression?
2. Is the defendant one of the individuals who is permitted to assert the challenge?
3. Is this the kind of constitutional violation that supports suppression?

The exclusionary rule applies only if the answer to all three questions is “yes.” Each of these three questions has its own set of doctrinal boxes, but in every box the doctrines are framed by one overriding pragmatic question: How far does the exclusionary rule need to go to deter constitutional violations and permit a well-functioning criminal justice system? In each box, the goal of the doctrine is having the exclusionary rule be broad enough but no broader: The exclusionary rule needs to go far enough to deter wrongdoing and permit a well-functioning criminal justice system, while not punishing the public too much by suppressing evidence when it is not needed.

Consider Question 1: “Is there sufficient connection between the constitutional violation and the discovery of the evidence to warrant suppression?” This question is addressed by three doctrines. The first is the fruit-of-the-poisonous-tree doctrine, see Wong Sun v. United States, 371 U.S. 471 (1963), which looks to whether the constitutional violation was the proximate cause of the discovery of the evidence. The second is the inevitable discovery doctrine, see Nix v. Williams, 467 U.S. 431 (1984), which asks whether the government would have found the evidence anyway had the unconstitutional search never occurred. The third doctrine is the independent source doctrine, see Murray v. United States, 487 U. S. 533 (1988), which asks whether the government actually did discover the same evidence in some alternative costitutional way. The gist of these three doctrines is that if the constitutional wrong directly leads to the discovery of a piece of evidence, that evidence can’t be used. On the other hand, if the connection between the constitutional wrong and the discovery of evidence, or the government did or would have learned about the evidence some other way, then suppression isn’t needed to deter constitutional violations and the evidence can come in. The goal behond all three doctrines is to create a balanced exclusionary rule. The Court crafts the rules so that there is just enough of an exclusionary rule to deter constitutional violations, but that the government isn’t gratuitously set back in cases when exclusion isn’t needed to deter wrongdoing.

Next consider Question 2: “Is the defendant one of the individuals who is permitted to assert the challenge?” This question is addressed by two doctrines, standing and retroactivity. The standing inquiry limits the exclusionary rule to those people whose rights were directly violated: The defendant needs to be the person whose rights were violated in order to assert the Fourth Amendment challenge. See Rakas v. Illinois, 439 U.S. 128 (1978). Retroactivity doctrine limits the exclusionary rule based on changing law: It determines who gets to benefit from changes in the law in the defendant’s favor. Under modern retroactivity law, defendants who have their cases in the pipeline get the benefit of the exclusionary rule with new law on direct review, United States v. Johnson, 457 U.S. 537 (1982), but defendants whose cases become final cannot get the benefit of the exclusionary rule on collateral review, see Stone v. Powell, 428 U. S. 465 (1976). Both of these limitations are explicitly based on the balance between deterrence and an effective criminal justice system: The exclusionary rule needs to be broad enough to deter violations, but is not imposed if it would simply free criminals with no corresponding benefit to functioning of the criminal justice system.

Finally, consider Question 3: “Is this the kind of constitutional violation that supports suppression?” This is the question traditionally addressed by the good faith exception. Under the good faith exception, the Supreme Court carves out types of constitutional violations that do not warrant suppression. For example, minor defects in warrants do not warrant suppression, see United States v. Leon, 468 U.S. 897 (1984). Similarly, violations of the knock-and-announce rule do not warrant suppression, see Hudson v. Michigan, 547 U. S. 586 (2006), as do arrests based on negligent errors in police databases, see Herring v. United States, — U.S. — (2009). The good faith exception is explicitly based on exactly the same balancing test that the Court developed with the other doctrines limiting the exclusionary rule: Once again, the goal is to limit the exclusionary rule instances where it is needed to deter constitutional violations and thereby maintain the functioning of the criminal justice system while not suppressing evidence when it would not serve any purpose. Fourth Amendment law can get really technical, and it would be extravagant for every type of violation to lead to suppression. Here, it’s important to realize, as the Supreme Court explained in Herring, that the label “good faith” is a misnomer: The test is not whether the officer subjectively acted in good faith, but rather whether as an objective matter exclusion for that type of violation has a net benefit.

Okay, that’s the background you need. With the background developed, you can appreciate the nature of the claim that the good faith exception applies to changing law. The claim imagines a clash between Question 2 and Question 3. More specifically, the claim is that the good faith exception of Question 3 should take over the territory traditionally answered by retroactivity doctrine in Question 2. That is, it takes a doctrine designed for certain categories of violations (knock and announce, etc.), and instead applies it as doctrine for certain kinds of defendants (defendants on direct review when the new decision is handed down.)

Traditionally, the question of whether the exclusionary rule applies to changing law has been thought of as a Question 2 problem, answered by retroactivity law. There are many decades of history on this issue. The gist of it is that the Supreme Court applied a balance between the deterrent effect of the exclusionary rule and the need to maintain the integrity of the criminal justice system and eventually arrived at a clear rule for retroactivity: The exclusionary rule applies to changed law on direct review, but it does not apply on collateral review. The claim that the good faith exception applies to changing law applies the same balance to the same interests, but reaches the conclusion that the exclusionary rule does not apply to changed law at all, even on direct review. It’s not hard to see that this is retroactivity law in all but words. It’s applying the same test, just with a different label.

No matter what label you apply, the question is the same: Does a cost/benefit balance justify applying the exclusionary rule to new legal developments on direct review? I’ll pick up that question in my next post.

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