The Good Faith Exception and Changing Law: Misunderstanding “Good Faith”

This is my 6th post in series of posts on why the good faith exception to the exclusionary rule should 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? The prior posts are here. Now on to Post #6: Misunderstanding “Good Faith.”

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In this post, I wanted to address a very natural response to my arguments: Isn’t a police officer who relies on then-current law acting in good faith? After all, a police officer who simply does what the law says he can do isn’t morally culpable or a bad-faith actor. Isn’t he pretty much the poster-child of good faith, and thus worthy of the good-faith exception?

This is a natural reaction, but also a wrong one. The error is one of labels:  “good faith.” Although the doctrine is called the “good faith exception,” that is a confusing label: The subjective good faith of the officer is actually irrelevant, as decisions from Leon to Herring have all emphasized. It’s more accurate to think of the so-called “good faith” exception as the “technicality” exception. The exception applies when the police violate the Fourth Amendment but the violation is a sort of technicality — the kind of violation for which exclusion would be an extravagant remedy.

Examples of such technical violations are minor defects in a warrant (Leon), knock-and-announce violations (Hudson), and reliance on negligent errors in a police database (Herring). These are minor, technical sorts of violations: Imposing the remedy of suppression is just too much given that the violation isn’t such a huge deal in the overall scheme of things. But the key is the nature of the violation, not the officer’s subjective state of mind. Whether a police officer thinks he is violating the law or not has no relevance to the good faith exception.  See, e.g., Illinois v. Krull, 480 U.S. 340, 335 (1987) (“The standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.”) See also Whren v. United States, 517 U.S. 806 (1996) (“[T]he Fourth Amendment’s concern with “reasonableness” allows certain actions to be taken in certain circumstances, whatever the subjective intent.”) (emphasis in original).

To see why this matters, let’s consider a few scenarios and think about whether the exclusionary rule should apply. For the first set of scenarios, assume that the officer is an evil officer determined to violate the Constitution. I’ll call him “Officer Bad.” Now consider four different scenarios, with the only differences being the state of the law at various times:

1) Officer Bad wants to violate the suspect’s Fourth Amendment rights, and he searches the suspect thinking the search is illegal. In fact, circuit precedent at the time of the search indicates that the search is legal. During the direct appeal, the Supreme Court hears a case on the issue and agrees that the search is legal.
2) Officer Bad wants to violate the suspect’s Fourth Amendment rights, and he searches the suspect thinking the search is illegal. In fact, circuit precedent at the time of the search indicates that the search is legal. During the direct appeal, however, the Supreme Court hears a case on the issue and concludes that the search is illegal.
3) Officer Bad wants to violate the suspect’s Fourth Amendment rights, and he searches the suspect thinking the search is illegal. In fact, circuit precedent at the time of the search indicates that the search is illegal. While the case is on direct appeal, however, the Supreme Court disagrees with the circuit precedent and rules that the search is legal.
4) Officer Bad wants to violate the suspect’s Fourth Amendment rights, and he searches the suspect thinking the search is illegal. In fact, circuit precedent at the time of the search indicates that the search is illegal. While the case is on direct appeal, the Supreme Court hears the case and agrees with the circuit court that the search is illegal.

Now ask yourself, in which of these cases will the evidence be suppressed? In every case, the officer was acting in bad faith: In every case, he was trying to violate the Constitution. Under current law, however, the evidence would be suppressed only in scenarios (2) and (4). The officer’s subjective beliefs about the law are irrelevant, as is the lawfulness of the search when it occurs. The only relevant question is the state of the law at the end of the direct appeal: Whatever law exists at that time determines the admissibility of the evidence.

Now let’s look at four more scenarios, this time imagining a search by an officer acting in good faith who is committed to following the Constitution. I’ll call him “Officer Good.” Here are the four scenarios which are identical to the four scenarios above except that the officer’s subjective belief is different:

1) Officer Good wants to follow the Fourth Amendment, and he searches the suspect based on his belief that the search is legal. In fact, circuit precedent at the time of the search indicates that the search is legal. During the direct appeal, the Supreme Court hears a case on the issue and agrees that the search is legal.
2) Officer Good wants to follow the Fourth Amendment, and he searches the suspect based on his belief that the search is legal. In fact, circuit precedent at the time of the search indicates that the search is legal. During the direct appeal, however, the Supreme Court hears a case on the issue and concludes that the search is illegal.
3) Officer Good wants to follow the Fourth Amendment, and he searches the suspect based on his belief that the search is legal. In fact, circuit precedent at the time of the search indicates that the search is illegal. While the case is on direct appeal, however, the Supreme Court disagrees with the circuit precedent and rules that the search is legal.
4) Officer Good wants to follow the Fourth Amendment, and he searches the suspect based on his belief that the search is legal. In fact, circuit precedent at the time of the search indicates that the search is illegal. While the case is on direct appeal, the Supreme Court hears the case and agrees with the circuit court that the search is illegal.

Now ask again, in which of these cases will the evidence be suppressed? Because the officer’s subjective belief about the lawfulness of his conduct is constitutionally irrelevant, the answers have to be the same as the answers to the first set of scenarios. Once again, I think the evidence should be suppressed in scenarios (2) and (4) but admitted in scenarios (1) and (3).

The argument in favor of the good faith exception focuses on Scenario (2) with Officer Good:

Officer Good wants to follow the Fourth Amendment, and he searches the suspect based on his belief that the search is legal. In fact, circuit precedent at the time of the search indicates that the search is legal. During the direct appeal, however, the Supreme Court hears a case on the issue and concludes that the search is illegal.

Well geez, the argument runs, isn’t that officer acting in good faith? He is trying to follow the law, and he’s following the law as then understood. Surely it’s not fair to punish him just because the Supreme Court changed the law.

But if you take that view, I’d ask you to answer whether the exclusionary rule should apply to Officer Bad in Scenarios 1 and 3 and Officer Good in Scenario 2. Just to avoid confusion, let me relabel these scenarios A, B, and C.

A) Officer Bad wants to violate the suspect’s Fourth Amendment rights, and he searches the suspect thinking the search is illegal. In fact, circuit precedent at the time of the search indicates that the search is legal. During the direct appeal, the Supreme Court hears a case on the issue and agrees that the search is legal.

B) Officer Bad wants to violate the suspect’s Fourth Amendment rights, and he searches the suspect thinking the search is illegal. In fact, circuit precedent at the time of the search indicates that the search is illegal. While the case is on direct appeal, however, the Supreme Court disagrees with the circuit precedent and rules that the search is legal.

C) Officer Good wants to follow the Fourth Amendment, and he searches the suspect based on his belief that the search is legal. In fact, circuit precedent at the time of the search indicates that the search is illegal. While the case is on direct appeal, however, the Supreme Court disagrees with the circuit precedent and rules that the search is legal.

If you believe in a good faith exception for changing law, would you favor suppression in any of these cases? In each of these scenarios, the cop violates the law as it stood at the time. In two of the scenarios, the officer’s violation was entirely intentional: He’s the evil Officer Bad, scheming to violate the suspect’s rights. Right now, though, we don’t suppress in any of these scenarios. The government gets the benefit of the new rule and the evidence is admitted. And the officer is not only not punished, but he is held to have done nothing wrong: He followed the law.

If you disagree with that view, I think it might be because you’re taking more of a subjective approach to good faith than the doctrine allows. The good faith doctrine isn’t about retribution, however. Rather, it requires a utilitarian, objective, cost-benefit analysis of whether the costs of exclusion for that type of constitutional violation outweigh the benefits. In short, once you realize the label “good faith” is a bit misleading, you can see why the easy argument focused on subjective good faith misses the mark.