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.