This is my fourth 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, 556 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? Post #1 is available here, post #2 is here, and post #3 is here. Now it’s time for Post #4: Distinguishing Illinois v. Krull.
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At first blush, Illinois v. Krull, 480 U.S. 340 (1987), seems like it points strongly in favor of recognizing a good faith exception for changing law. In this post, I want to explain the holding of Krull and then explain why I think Krull is distinguishable.
(a) Illinois v. Krull. Krull deals with good faith reliance on a statute authorizing a search. The state of Illinois had enacted a statute that allowed Illinois authorities to conduct warrantless administrative searches of businesses engaged in selling automobiles and autoparts. An officer made a warrantless inspection of Krull’s wrecking yard and saw evidence that Krull was engaged in criminal activity. When Krull was charged with various offenses, he moved to suppress the evidence found in his wrecking yard on the ground that the search of his wrecking yard was unconstitutional because the officers had relied on an unconstitutional statute authorizing the search. The officers had followed the state statute, but the statute authorized more than the Fourth Amendment permitted.
In an opinion by Justice Blackmun, the Supreme Court held that the evidence against Krull was admissible because the exclusionary rule should not apply “when officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment.” As long as the officer could reasonably believe the statute complied with the Fourth Amendment, he could rely on the statute and the evidence would be admitted. On the other hand, if the statute was clearly unconstitutional, then the officer could not rely on it and any evidence obtained must be suppressed.
Justice Blackmun made three basic arguments. First, when a statute expressly authorizes a search, the exclusionary rule is not needed to deter the police from violating the Constitution. The officer can’t know his conduct is unconstitutional, so he can’t be deterred: “Unless a statute is clearly unconstitutional, an officer cannot be expected to question the judgment of the legislature that passed the law.” An officer who follows a statute “has simply fulfilled his responsibility to enforce the statute as written,” as well he should.
Second, an exclusionary rule was not needed to deter legislatures from violating the Constitution in enacting search and seizure rules. There was no sign that legislatures have a tendency to subvert the constitution in their good-faith efforts to guide the police. Further, an exclusionary remedy would play little role in deterring legislatures from authorizing constitutional violations. For legislatures, the “punishment” was the courts striking down the statute, not applying the exclusionary rule in a particular case. So an exclusionary rule wouldn’t end up deterring legislatures from authorizing constitutional violations.
Third, Justice Blackmun addressed the concern that a good faith exception would harm the process of litigation by insulating statutes from judicial review. First, defendants would still challenge searches pursuant to unconstitutional statutes — they would just need to argue that the statute was clearly unconstitutional. Second, individuals could challenge unconstitutional statutes by bringing civil declaratory judgment actions seeking injunctions against the enforcement of the statutes. Because unconstitutional statutes could be challenged either in motions to suppress or in declaratory judgment actions, the concern that statutes would be insulated from judicial review did not significantly impact the cost/benefit balance.
(b) Distinguishing Krull. I think there are two main ways to distinguish Krull. The most obvious way is based on the third argument: The harm to the process of litigation is entirely different. Legislative authorizations of search and seizure are rare, and can be challenged in different ways. As a result, Krull’s limitation of suppression to searches based on clearly unconstitutional statutes did not seriously limit the type of challenges. In contrast, as developed in detail in Post #3, a rule that the exclusionary rule categorically does not apply to searches authorized by circuit precedent would seriously impair the development of Fourth Amendment law. You can’t normally seek injunctive relief against searches and seizures in the same way you can enjoin reliance on statutes: The very method of development of the law would be substantially impaired. This is an enormous cost to a good faith exception for changing law that is simply absent from the good faith exception for reliance on unconstitutional statutes.
But what about deterrence? If deterrence is the big issue with the scope of the exclusionary rule, isn’t that the key issue? And if so, how would the exclusionary rule for searches only later ruled unconstitutional deter the police or deter judges?
First off, I don’t think the exclusionary rule would deter the police. Here the comparison to Krull strikes me as quite apt. If an officer “cannot be expected to question the judgment of the legislature that passed the law” that the law is unconstitutional, surely the officer cannot be expected to question the judgment of the courts. So I’ll readily concede: An exclusionary rule for changing law is not needed to deter the police.
On the other hand, I think an exclusionary rule for changing law is in fact needed to deter appellate courts from authorizing constitutional violations. I realize this seems jarring at first. As legal realists, it seems intuitive to us that judges make the law and say what is constitutional. If a court allows it, it’s not unconstitutional, right?
Put your realist hat away, my friend. The Supreme Court has made clear that when the law changes, we have to approach the change in law as pure legal formalists rather than legal realists. Here is how the Supreme Court explained the framework two years ago in Danforth v. Minnesota, in explaining that the very concept of “retroactivity” was misleading because it assumed that courts create rules:
[W]e note at the outset that the very word “retroactivity” is misleading because it speaks in temporal terms. “Retroactivity” suggests that when we declare that a new constitutional rule of criminal procedure is “nonretroactive,” we are implying that the right at issue was not in existence prior to the date the “new rule” was announced. But this is incorrect. The source of a “new rule” is the Constitution itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule. What we are actually determining when we assess the “retroactivity” of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.
Under this framework, the Supreme Court does not create new rules when it overturns old precedents. No, sir. The old rule was always there, just never articulated. What has changed is that the correct rule, always there, but latent, has finally been articulated. I realize that to our legal realist sensibilities, this sounds seriously weird. But weird or not, it’s the framework that the Court itself insists must be followed when understanding the impact of new decisions.
So now let’s return to the deterrence question. When the Supreme Court announces that the circuit courts have been getting the law wrong for a few decades, that means something extremely troubling has happened: For decades, the lower courts were consistently and repeatedly authorizing constitutional violations. They kept authorizing constitutional violations in case after case, without ever correcting it. The Supreme Court recognized this in Arizona v. Gant, in overturning the decades of circuit court precedent that had allowed the police to arrest a suspect, put him in the squad car, and then search his car incident to arrest. The Court reasoned that although circuit courts had authorized the practice, those lower courts had authorized constitutional violations: “Countless individuals guilty of nothing more serious than a traffic violation have had their constitutional right to the security of their private effects violated as a result.”
From this perspective, the exclusionary rule for changing law is needed to deter appellate courts from authorizing constitutional violations because the exclusionary rule is the only way that the constitutional violations will be corrected. Without the exclusionary rule, the courts will go on authorizing constitutional violations indefinitely. With the exclusionary rule in place, however, litigants can articulate the correct views, generating disagreement and prompting the Supreme Court to accept a case that will allow it, within the confines of the case or controversy requirement, to correct the error and finally end the constitutional violations.
Lower courts that have adopted a good faith exception for changing law have missed this by focusing only on the deterrence of the police, and ignoring Danforth‘s required formalism. But once you recognize the approach to changing law required by the court’s precedents, you can see that the exclusionary rule is needed for changing law to deter the courts. And when you combine this with the very different impact a good faith for changing law would have on the development of the law, I think Krull is distinguishable and the good faith exception must be rejected.
Martin says:
Orin,
Is “deter” precisely the word you want re the courts? “Deter” implies that courts will strive to do a better job of anticipating what the ultimate true interpretation of the Constitution because they find the prospect of reversal (even under a novel legal rule) or letting a guilty (in common sense, not legal, terms) person go free unpleasant. This is probably true but I doubt it is the major factor. Isn’t what you are mostly saying is just that the exclusionary rule is needed so that current interpretations of the 4th Amendment will get litigated and and common law process of (one hopes) improving the law over the course of multiple decisions, appeals, etc. can go on? Or did I miss something in your argument?
March 8, 2010, 10:09 pmOrin Kerr says:
Martin,
That’s a fair question. The dictionary defines “to deter” as “to turn aside, discourage, or prevent from acting.” I’m using it in that sense: The exclusionary rule is needed to turn aside and prevent constitutional violations. It’s true that this isn’t a case of courts fearing the exclusionary rule and acting out of fear, but I don’t think the concept of deterrence is that narrow.
March 8, 2010, 10:21 pmC.T. says:
Under this framework, the Supreme Court does not create new rules when it overturns old precedents. No, sir. The old rule was always there, just never articulated. What has changed is that the correct rule, always there, but latent, has finally been articulated. I realize that to our legal realist sensibilities, this sounds seriously weird. But weird or not, it’s the framework that the Court itself insists must be followed when understanding the impact of new decisions.
Didn’t Holmes say something about the law not being some brooding omniscience in the sky? :)
March 8, 2010, 10:36 pmMartin says:
Orin,
Re your response to my question about the word “deter.”
Leaving aside the question of the scope of the word “deter”, I think your post makes a very interesting general point that I don’t think I have heard before (though maybe I am just tired). You propose that one possible justification for a legal rule (whether a judge-made rule or a statute) is that it promotes the common-law trial and error process that we Anglo-Saxons (plus Richard Posner in the old days when he published Darwinian theories of why the common law is economically efficient) think leads to the improvement of the law over time. Can you think of any other examples where legal rules have been justified on this ground? Is there a snappy name for this specific class of justifications? Etc.
(Following up, it just popped into my mind that, around 1986, I read a law review article defending formalist approaches to contract interpretation on the ground that they facilitate the gradual improvement of drafting language over time, even if less strictly textual interpretations of contracts would produce more reasonable results in individual cases.)
March 8, 2010, 10:54 pmOrin Kerr says:
Martin,
One doctrine that comes to mind is the “capable of repetition, yet evading review” exception to mootness. Basically, if the challenged action is sufficiently time-sensitive that the usual rules of mootness will not allow the action to be challenged, the courts suspend the usual mootness rules and decide the issue. The basic idea is that you need the exception to let the law develop in its regular way.
March 8, 2010, 11:01 pmOrin Kerr says:
I should add that I think these sorts of prudential considerations also shape doctrines like standing, mootness, as-applied versus facial challenges, abstention doctrines, AISG, the Saucier/Pearson doctrines about the order of qualified immunity, etc. The Justices are very concerned with rules that are needed to facilitate the orderly and accurate development of the law.
March 8, 2010, 11:04 pmOrenWithAnE says:
Fantastic series of posts, and I think ultimately quite persuasive. My only quibble is that once again the Court puts the DCs and CAs in the unenviable position of interpreting without sufficient guidance. It’s not that Gant is entirely incompatible with Belton, only that the latter was insufficiently explicit in what the Court intended.
In a sense, it seems, the Court has set out to deter the Circuits from poor interpretation born out of its own insistence on inscrutability. I’m at a loss for how a Circuit Court, reading Belton, could divine Gant. FF when he remarked that 4A law does not proceed smoothly. Or maybe it was Clark when he wrote:
The same applies to the lower courts vis-a-vis the Court.
March 8, 2010, 11:51 pmVisitor Again says:
Off the top, the proposition that the exclusionary rule is needed to deter the lower courts from reaching incorrect rulings on search and seizure issues strikes me as nothing different than the idea that it encourages the lower courts to reach correct rules on search and seizure issues by providing them the opportunity to do so.
It seems to me this point collapses into the first point you made–that failure to apply the exclusionary rule would seriously impair the development of fourth amendment law–and that they are, in substance, one and the same.
March 9, 2010, 6:34 amShelbyC says:
This would all make much more sense if we adopted the notion that the exclusionary rule is a remedy that the defendant is entitled to as a matter of right.
March 9, 2010, 9:23 amOrenWithAnE says:
Yeah, I left that last few threads thinking this as well. Usually, it’s framed as a deterrent against police misconduct, not a remedy but not always. Which ‘model’ of the ER you chose is a big factor in how you see these cases.
March 9, 2010, 11:23 amOrin Kerr says:
Vistor Again,
I think that’s basically right, but I needed to rephrase the point to distinguish Illinois v. Krull.
March 9, 2010, 1:34 pmOrin Kerr says:
ShelbyC,
I disagree. The argument for the exclusionary rule here is ultimately about the needs of the Supreme Court: The Supreme Court really needs the exclusionary rule here to be able to function. That’s not a claim of entitlement to a defendant.
March 9, 2010, 1:36 pmRebecca Pennell says:
Thanks for the continuing coverage. FYI, the Ninth Circuit published a very vigorous defense of the exclusionary rule, limiting Herring significantly, today in US v. Cha, No. 09-10147.
March 9, 2010, 1:38 pmKyle says:
Orin (This is a reposting of a comment to the second post in the series: sorry) – Thanks for the interesting series of posts. I hope you might clarify one point for me.
It strikes me that there’s a distinction between two types of USSC cases in which the exclusionary rule is at issue in a manner relevant to your series. I’ll call the first “overrule cases” and the latter “fill-in cases.” The former asks whether a precedent should be overruled; the second, whether a particular practice is proscribed by existing precedent. An example of the latter type of case might arise if the USSC grants cert to ascertain whether and to what extent a cell phone can be searched incident to arrest under Chimel and its progeny. (In a sense, I suppose, every case is a fill-in case.)
Of course, cases can be argued both ways by litigants. A defendant can argue that an earlier precedent was wrongly decided, but even if it was correctly decided, then what the officers did in the case at hand was inappropriate anyway under the rule established by the case. In Gant, it’s my understanding that at least in the lower courts, the defendant wasn’t arguing (only) that Belton should be overruled; the argument was made that the officers’ search was not appropriate under Belton.
To me, at least, your point about application of the “good faith” exception to the exclusionary rule “drying up” the flow of appellate cases brought by defendants seeking exclusion seems mostly pertinent to cases solely argued as “overrule” cases, rather than (in part or in whole) as “fill-in” cases. If a litigant were to argue, and a court were to decide that searching a cell phone is invalid under Chimel, absent an extremely broad view of Herring / Leon, the exclusionary rule will apply (since the practice was unlawful at the time it occurred), and appeals will still be brought, and the court will be free to overrule existing precedent. True, conventions regarding dicta may keep the court from addressing the broader issue if they agree with the defendant that the officers’ conduct was unlawful under existing precedent. But if they don’t, or if they’re really itching to reach the issue, it seems that they’d tackle the older case.
As for pure “overrule” cases — i.e., cases where the defendant can prevail only if existing, binding precedent is overruled – I tend to agree with your analysis, at least given current standing rules. Conceivably, however, there may come a day where it’s permissible for repeat players or interest groups to attack existing precedent even if a given defendant has no incentive to do so. (See, e.g., your colleague Paul Cassell’s role in the Dickerson case.)
Or am I missing something?
March 9, 2010, 1:46 pmThe Volokh Conspiracy » Blog Archive » The Good Faith Exception and Changing Law: A Brief History says:
[...] evidence is admitted? Post #1 is available here, post #2 is here, post #3 is here, and post #4 is here. Now on to post #5: A Brief [...]
March 17, 2010, 3:09 amThe Volokh Conspiracy » Blog Archive » The Good Faith Exception and Changing Law: A Brief History says:
[...] evidence is admitted? Post #1 is available here, post #2 is here, post #3 is here, and post #4 is here. Now on to post #5: A Brief [...]
March 17, 2010, 3:09 am