This is my third post in a planned series 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 #3: The Costs of the Exclusionary Rule, and Balancing Costs and Benefits. Post #1 is available here; post #2 is available here.
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Now we turn to the costs of the exclusionary rule. The key to determining the costs of the exclusionary rule for any good-faith case is understanding the subset of cases in play. The question is, is the cost of suppression for that class of cases worth the benefits explained in Post #2? Here I think the answer is clearly “yes.” To see why, we need to start by identifying the precise class of cases in which suppression would be imposed.
1. The Class of Cases. The trick to understanding the scope of suppression is to recall the different limitations on the exclusionary rule discussed in my first post. As I explained there, 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.” Further, if the evidence was wrongly admitted, a subsequent conviction will be overturned only if the error was not “harmless.” These limitations are critical to understanding the costs of the exclusionary rule, as it means that the exclusionary rule will only have a cost when no other exception to the exclusionary rule would apply.
In the case of the proposed good faith exception for changing law, costs would only occur in those cases in which (a) the illegal search directly caused the discovery of the evidence (fruit-0f-the-poisonous tree), (b) the government would not have discovered the evidence had the unconstitutional search never occurred (inevitable discovery), (c) the government did not know the evidence some other way (independent source), (d) the defendant’s own rights were violated (standing), (e) the conviction is not yet final (retroactivity), (f) the kind of constitutional violation is the kind of violation for which the Supreme Court has concluded that suppression is necessary (good faith), and (g) the error is not harmless.
Think about that for a second. The only cases in which the exclusionary rule would apply are those cases in the direct review pipeline that would have never been brought in the first place had the Constitution been followed, and for which the violation is so serious that the Court believes the evidence must be suppressed. That’s a limited group, consisting of the most core constitutional violations out there. These are the cases involving the serious constitutional violations in which suppression has been deemed a necessary cost. And it’s those cases, and only those cases, that would lead to suppression.
Powell v. Nevada, 511 U.S. 79 (1994), provides a helpful example of how narrow this class of cases will be. In 1989, Powell was arrested for murder and held by the police without an initial hearing for 10 days. On the 4th day of his detention, he made incriminating statements that were later used against him at trial. While Powell’s case was on direct review, the Supreme Court decided County of Riverside v. McLaughlin, 500 U.S. 44 (1991), which held that the initial hearing was required within 48 hours of the initial arrest. The Nevada Supreme Court initially held that McLaughlin was not retroactive, so the McLaughlin case did not apply. The Supreme Court unanimously reversed, holding that McLaughlin was retroactive to Powell’s case because Powell’s case was on direct review. But the Court then stressed that while McLaughlin applied, the exclusionary rule may not:
It does not necessarily follow, however, that Powell must be set free, or gain other relief, for several questions remain open for decision on remand. In particular, the Nevada Supreme Court has not yet closely considered the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin), or the consequences of Powell’s failure to raise the federal question, or the District Attorney’s argument that introduction at trial of what Powell said on November 7, 1989 was “harmless” in view of a similar, albeit shorter, statement Powell made on November 3, prior to his arrest. Expressing no opinion on these issues, we hold only that the Nevada Supreme Court erred in failing to recognize that Griffith v. Kentucky calls for retroactive application of McLaughlin’s 48 hour rule.
Indeed, the Nevada Supreme Court upheld Powell’s conviction despite the Constitutional violation. Powell v. State, 113 Nev. 41 (1997).
2. The Cost of the Exclusionary Rule And the Merits of Gant. At this point you may be thinking, well, okay, so maybe not all of the bad guys will go free. But surely some of them will. And that’s a cost, right? People who violated the law will get out of jail.
I agree it’s a cost. But this cost is the cost that the Supreme Court will have just announced is worth incurring by establishing the new rule that is subject to a possible good faith exception. Consider Arizona v. Gant, which dramatically changed the law of searches incident to arrest for automobiles and led to the flood of cases on whether the good faith exception applies to changing law. The majority decision in Gant concluded that it was not constitutionally reasonable based on a balance of legitimate interests for the police to have searched Gant’s car while Gant was arrested and in the back of the squad car. The search went too far, and should not have been allowed. That is, a weighing of the interests produced the result that the government should not have known about the drugs in Gant’s car in the first place.
In this setting, applying a “good faith” exception to Gant and other cases with identical searches before Gant is akin to revisiting Gant and concluding that the Gant court got it wrong. Applying the exclusionary rule for Gant violations puts everybody back where they would have been had the police done what was permitted in Gant. The question must be, did the Gant court accurately gauge the competing costs and benefits of allowing the search in that case? Whatever the answer is, presumably that should be settled by the Supreme Court in announcing the new rule, not by a later court under the guise of the good faith exception.
3. Good Faith for Changing Law and the Problem of Technical Violations. There’s one more objection worth exploring. What if the new rule announced by the Supreme Court is a somewhat technical Fourth Amendment rule, rather than a rule announced after weighing costs and benefits? Specifically, what if the Court’s new rule is a technicality, imposed for reasons of history or something like that, and it isn’t worthwhile from a cost-benefit framework to let people out of jail for violating it? Wouldn’t imposing the exclusionary rule for such a technical violation be excessive?
The answer is “yes,” but that this problem is already dealt with by the preexisting scope of the good faith exception. There is no need for a good faith exception for changing law to cover this, as it is already covered by the traditional function of the good faith exception focused on the nature of the violation. In such a case, the proper course is for courts to rule that the exclusionary rule doesn’t apply because it is not worth applying the exclusionary rule for that kind of violation, not because the rule wasn’t announced before the search occurred.
We can see this play out with the Fourth Amendment litigation on knock-and-announce violations — cases in which the Fourth Amendment required the police to knock on the door and announce their presence as police officers before executing search warrants. Before Richards v. Wisconsin, 520 U.S. 385 (1997), a lot of state precedents had allowed the government to dispense with this requirement in all felony drug cases. In Richards, the Supreme Court rejected a per se exception to the knock-and-announce rule and instead required a case-by-case determination of need for a no-knock warrant. Defendants with cases already in the pipeline tried to invoke the exclusionary rule in cases that could not satisfy the case-by-case standard. Two state Supreme Courts — Wisconsin and North Dakota — ruled that the good faith exception applied because the law had changed. See State v. Ward, 604 N.W.2d 517 (Wis. 2000); State v. Herrick, 588 N.W.2d 847 (N.D. 1999). The officers could not predict that the Supreme Court would overturn state court precedents in Richards, these courts ruled, and so the cost/benefit analysis favored letting in the evidence given the changing law.
But then a few years later, in Hudson v. Michigan, 547 U. S. 586 (2006), the Supreme Court examined how the good-faith cost/benefit analysis applied for knock-and-announce violations generally and concluded that suppression is not an available remedy for knock-and-announce violations. The Court’s reasoning is a bit odd, but the basic conclusion seems quite right to me: The knock-and-announce rule is too technical in nature for violations of it to warrant suppression of all the evidence found when the warrant is executed. The remedy would be extravagant for the nature of the wrong. With the holding of Hudson in mind, now go back to state Supreme Court decisions in Ward and Herrick. Now the cost-benefit analysis of the good-faith exception for changing law in those cases obviously looks different: The costs of suppression for changing law are exactly zero in all cases in which the good faith exception applies based on the technical nature of the violation. No one will go free based on the retroactive application of Richards v. Wisconsin because of the technical nature of the violation as recognized in Hudson v. Michigan.
4. Weighing Costs and Benefits. Now it’s time to weigh costs and benefits of applying the exclusionary rule for new law on direct review. We need to compare the harm caused to the functioning and integrity of the development of criminal procedure law if we apply the good faith exception for changing law to the harm caused by not punishing some people who committed crimes if we don’t apply the exception. This sort of weighing is normally hard to do, as it forces us to compare constitutional apples and constitutional oranges: It’s not like there’s a handy conversion chart for converting lost chances at punishment for unknown crimes with damage to the system of criminal procedure law.
Still, in this case I don’t think it’s close call. The benefits of the exclusionary rule here are simply enormous: As explained in Post #2, the exclusionary rule is the linchpin for our entire system of Fourth Amendment law. On the other hand, the costs of the exclusionary rule here are quite modest: freeing people from jail who shouldn’t have been prosecuted in the first place. It seems to me that this is just about the clearest case for the role of the exclusionary rule that you can find.
So that’s the cost/benefit analysis. In my next post, I want to turn to the toughest case against my position and explain why it is distinguishable. That case is Illinois v. Krull, 480 U. S. 340 (1987), and I’ll address it in my next post.
Railroad Gin says:
I have a question about all of this. What if it’s the other way around? What if a cop conducts a search that is unconstitutional at the time, but later the courts change the law and rule that the search was valid? Is the evidence admissible? I think not, but by the logic of this it should be. Retroactivity (good faith) should cut both ways. The whole point is to deter improper police conduct — it’s about the mens rea of the cop essentially.
If the cop knew or should have known that what he did was unconstitutional then the evidence should be suppressed. If he had reason to believe that what he did was lawful then it should be admissible.
I appreciate the logic of Professor Kerr’s position and it makes a lot of sense to a point. But I think it cuts both ways. If the caselaw changes subsequent to the search, then either make it retroactive (apply good faith) or don’t. But it shouldn’t be a “heads I win, tails you lose” sort of thing. I think there is a danger in allowing the police to conduct searches that are unconstitutional in the hope that they might later be determined to be constitutional. The point of the Bill of Rights is to prevent our country from becoming a police state, a tyranny or whatever you want to call it. It’s not to give criminals a “get out of jail free card.” Focusing on the mental state of the officer at the time of the search goes a lot further in promoting the purpose of the 4th Amendment than some sort of crap shoot where the officer has no clue what the courts may or may not do next week.
March 3, 2010, 2:10 amOrin Kerr says:
Railroad,
Yes, it cuts both ways. If the cop conducts a search that is unconstitutional at the time, but later ruled constitutional, then the search is valid and the evidence comes in. I don’t think anyone argues with that — it’s understood to be the case by alll sides. The subjective good faith of the officer is irrelevant.
The who favor the good faith exception for changing law want to have it both ways: If the law changes to help the government, the government wins; If the law changes to help the defendant, the government wins.
March 3, 2010, 2:17 amRailroad Gin says:
I think it should be the other way around, but if that is the law then I see that as the strongest argument in favor of your position. So basically it’s a crap shoot, but no matter whether the dice comes up seven or box cars, the government always wins? That strikes me totally ridiculous which is why had I had no idea that it worked that way.
March 3, 2010, 2:23 amJ. Aldridge says:
I don’t know why the court and scholars bother to make any reference to the Fourth Amendment with things like the “exclusionary rule” since these are so detached from anything Fourth Amendment. The Fourth Amendment never had anything to do with police conduct or local police policies. It simply declared what was already illegal: Issuance of General Warrants, especially by anyone outside of the judiciary.
March 3, 2010, 3:18 amOrin Kerr says:
J. Aldridge,
How can you say that? To quote John Bingham in his widely-publicized speech on July 25, 1866:
March 3, 2010, 3:33 amjimM47 says:
Orin, I think you owe John Bingham a beer.
March 3, 2010, 4:06 amBuddy Hinton says:
The costs of the exclusionary rule here are simply enormous: I have explained in other threads, the exclusionary rule is the linchpin for our entire system of Fourth Amendment law. It is an absolutely terrible linchpin (because it only protects the guilty) and has caused 4a to be marginalized and disrespected when it comes to innocent people. We will not get a better linchpin until it is understood that the costs of the exclusionary rule are always too high and the rule is discarded per Hudson.
March 3, 2010, 4:11 amBrett Bellmore says:
The problem here is, as Buddy points out, the exclusionary rule provides the innocent with absolutely no protection against having their lives turned upside down by warrantless searches. And the knock and announce rule is pretty damn important.
After all, a warrant doesn’t just function to let the police know they’ve got the right to search your home. It lets YOU know that the guy at your door at 3AM actually DOES have the right to enter. Dispense with knock and announce, and you get these situations where the police have the right to enter, and meet with an armed citizen who has absolutely no reason to doubt that they’re being subjected to a criminal home invasion. And somebody ends up on the floor in a pool of blood for legally defending themselves.
The courts have done us a real disservice by dismissing the importance of the warrant’s function of telling the subject of the search that it’s legal.
March 3, 2010, 7:04 amDavid says:
The problem with this line of reasoning is that it is analogous to saying that atomic bombs aren’t very dangerous because–after all–we’ve only ever dropped two of them, and they only killed a few tens of thousands of people.
How often do prosecutors not prosecute, or plead out the perp, or fail, because of the deterrent effect of introducing *possibly* tainted evidence that is at the margin of existing “exclusionary rule” jurisprudence? There’s no way of knowing.
Presumably, even those cases that are litigated to the SC started out just like those…only some prosecutor or judge decided to give the cops the benefit of the doubt.
It’s often been observed that there are many approaches to dealing with “tainted evidence”, but the courts chose the exclusionary rule, hardly the most efficient solution. But of course, the current state of play means that the courts are the final arbiters of the outcome…not the Constitution, not the law, but the high-priests of the Constitution and the law.
“Rule of law” means more than “fairness” or “justice”: it also means consistency and finality.
March 3, 2010, 8:34 amShelbyC says:
Thank Orin, it’s alot easier to ask what I was trying to ask yesterday, especially after your “apples and oranges” anology. We compare apples and oranges by drawing an indifference curve, i.e. how many apples provide equal benefit to how many oranges, under what circumstances. Do we want courts drawing such a curve, based on unreasonable searches and conviction of criminals?
Another question:
Does anybody know of any examples where a remedy is provided to someone not as a matter of right, but only after weighing the costs and benefits to the rest of society?
March 3, 2010, 10:43 amShelbyC says:
Don’t we run the risk of ending up linchpin-less?
March 3, 2010, 10:46 amOrin Kerr says:
David writes:
I’m not sure I understand this: The only issue is whether the exclusionary rule should apply to searches lawful at the time, later ruled unconstitutional, but that have not yet led to final convictions. There’s no issue of “possibly tainted” evidence, as far as I can tell.
March 3, 2010, 12:59 pmNexus says:
Orin, very interesting posts. Is there an easy way to access this entire series later?
March 3, 2010, 1:40 pmBU 2L says:
Shoot! I have a moot court oral argument in four hours which revolves around Herring and Gant. I need that last post on Krull! Oh well. Good series.
March 3, 2010, 2:10 pmGuy says:
Until someone figures out how to make pieces of parchment talk, maybe we should take the advice of those whom the Constitution charges with deciding “all cases, in law and equity, arising under this Constitution” when we don’t all agree on what it means.
March 3, 2010, 8:48 pmDavid says:
So…your argument is, neither Congress nor any other legislative body have anything to say about rules of evidence? That it’s entirely up to the court system?
March 4, 2010, 9:02 amDavid says:
What I’m saying is that every time the courts twiddle the rules regarding admissibility–or indeed any other aspect of police and judicial conduct within the criminal justice system–it creates greater uncertainty about permissible action. Greater uncertainty, in turn, means that prosecutors, judges (and indeed cops) will draw an ever wider “fence around the law” to avoid being the next test case at the margin.
This in turn leads you down a slippery slope in which it’s harder and harder to have evidence that is clearly and uncontroversially admissible.
One example would be confessions: we’ve gone from saying that you can’t beat confessions out of people, to saying that you can’t trick them into confessing, to saying that anything they say while they might *think* they’re in custody is inadmissible. Indeed, there are folks who say that confessions are *inherently* inadmissible.
ISTM that if your only concern is with the rights of the accused, you are not “balancing” those concerns properly with the right of society to expect that those who are guilty will be apprehended, convicted, and punished. “Presumption of innocence” and the right to a fair trial are laudable objectives, but when they lead to defenses that routinely inject the possibility of police misconduct, they come into conflict with those societal expectations…and ultimately undermine the very safeguards they are intended to protect.
As Charles Murray so poignantly observed, a society in which the innocent citizen fears the justice system more than the criminal is a sick society.
March 4, 2010, 9:12 amShelbyC says:
Sure, but we need to make sure that these folks actually “deciding all cases, in law and equity, arising under this Constitution” and not doing things like policymaking.
March 4, 2010, 11:33 amOrin Kerr says:
David,
I think the law is actually really different than you think. To take your example:
Actually, the government can trick suspects about a great deal, and generally they can use what suspects say when they might think they’re in custody. I don’t think I have ever come across anyone who argued that confessional are inherently inadmissible, so it’s hard for me to comment on that one. It’s true that the police can’t beat confessions out of people, but I hope you’ll agree that’s not a bad thing.
March 4, 2010, 5:56 pmThe Volokh Conspiracy » Blog Archive » The Good Faith Exception and Changing Law: Distinguishing Illinois v. Krull says:
[...] apply so the evidence is admitted? Post #1 is available here, post #2 is here, and post #3 is here. Now it’s time for Post #4: Distinguishing Illinois v. [...]
March 8, 2010, 9:07 pmRamuls says:
Professor Kerr,
As you have detailed, the good faith exception does not go to the subjective intent of the officer, but rather to whether they acted reasonably when relying on facially valid warrants that are later invalidated, state statutes there are later deemed unconstitutional, negligent errors by court clerks regarding the existence of a warrant, and the negligent maintenance of police databases concerning warrants. In Davis, the Eleventh Circuit held that a police officer’s reliance on the subsequently invalidated case law must be reasonable. Under the Davis holding, the defendant always has the ability to argue on appeal that the case law wasn’t settled or for some other reason did not justify reliance, and therefore, the police officer’s reliance was unreasonable. This provides for destruction of the GFE, which opens the door to litigation of the underlying constitutional concerns that may benefit the defendant. Because of that, the incentive for a defendant to litigate his or her fourth amendment claim remains intact, though he or she would first have to demonstrate that the GFE posed no bar. I am sure I am missing something, but I am having a hard time figuring out what that would be.
April 13, 2010, 2:20 pm