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.
D.O. says:
If courts let a criminal go because his rights were violated, the “punishment” falls not on an officer who violated those rights (either preexisting or newly recognized), but on the public in general and, more specifically, on the community where the criminal leaves or will leave. Of course, officers derive at least moral satisfaction (if not real rewards) from the knowledge that they efforts succeeded. We can try to somehow compensate that missed moral reward for Officer Good. “Good faith” exception has nothing to do with it.
March 19, 2010, 3:40 amBrett Bellmore says:
Is it really too much to ask of the legal community, that when they’re going to be using a concept that doesn’t fit a word, they come up with a different word, rather than just using an existing word to mean something completely different from what everybody else means by it?
“Good faith”, “reasonable”, sometimes I think you guys are using these words with the deliberate intent to confuse laymen into thinking that you’re doing something laymen would consider reasonable, when you know you’re not.
March 19, 2010, 6:43 amFantasiaWHT says:
If courts suppress evidence seized in a manner that would have been acceptable pre-Gant, exactly WHAT are the courts deterring? Do we want courts to deter cops from using techniques that are well-settled as constitutional? Is the message “hey cops, don’t ever do a warrantless search in any circumstance, because at some vague point in the future, the Court might change the law”? The good faith exception is based on deterrence, and I don’t see at all how that purpose is served by suppression in this circumstance.
March 19, 2010, 8:27 amC.T. says:
X2. concur completely.
March 19, 2010, 8:37 amProfane says:
Another great post which makes things very clear to the layperson. Thanks!
March 19, 2010, 8:51 amGuy says:
I think the message is always get a warrant, unless there is a good reason why that’s impracticable that will be upheld, and don’t try to purposely twist the precedents to get around that. Warrant exceptions are supposed to be narrow, and only apply where the warrant requirement would be silly or a very bad idea. Also, as Orin has already pointed out, the cost in uncertainty is more than outweighed by allowing the law to develop naturally.
March 19, 2010, 9:47 amFub says:
You’re right. But it’s done in good faith, so it’s reasonable; and therefore harmless error. Or something.
March 19, 2010, 9:48 amMonkberrymoon says:
Yes, but in a pre-Gant case, it’s not just impracticability — cops were told they could search the passenger area of a car for reasons of officer safety. Now, one may think that the officer safety exception was too broad (and I, for one, think Gant probably has the better argument), but it seems silly to penalize officers for acting (as they were told) in the interest of their own safety.
March 19, 2010, 10:13 amLior says:
Exclusion is not a “punishment” of the police officer, who after all has no personal stake in the outcome. When the evidence collected by Officer Good in case (2) is excluded, he has lost nothing personally, so I don’t understand the point of the “geez” argument.
March 19, 2010, 10:57 amrb1971 says:
@D.O.: No, the public in general is not ‘punished’, but receives a real benefit instead – that is, constitutional rights are protected and public servants are indirectly and in the future kept in check.
March 19, 2010, 12:52 pmNick056 says:
Orin,
Nice post.
I may be wrong, but when Herring came down, didn’t SCOTUSblog post that it generally broadened the good faith exception, an interpretation which you contested?
March 19, 2010, 1:32 pmMJG says:
Prof. Kerr:
I thought this was the weakest entry. Note that I agree with your overall view on this. I take your point but you did it in a way that was a bit too professorial. If I’m a judge (never was, though I was a federal appellate clerk a few years back) I think: Herring tells me the point of the exclusionary rule is deterrence only, and anywhere that you won’t get meaningful deterrence, you shouldn’t have the rule. If the law changed, there was nothing to deter because the police acted presumptively lawful. Thus, the rule shouldn’t apply. I think this is wrong, but it’s a big rock to get out from under, especially post Herring.
Also, an unrelated point. One case I haven’t seen mentioned by either side, though I would think it would help the anti-exclusionary rule folks, would be Michigan v. DeFellippo. It’s obviously a different circumstance, but seems to me related: DeFellippo involved a change in law — the voiding for vagueness of a statute under which an arrest was made — and held that the exclusionary rule should not apply. Now, I recognize that it’s distinguishable because you would say that a change in fourth amendment law, unlike the voiding of a state statute, must be retroactive because it involves a misunderstanding of the constitution, but the underlying rationale seems the same: the officer acted “in good faith” based on law as it operated at the time. Curious if anyone has any thoughts.
March 19, 2010, 1:47 pmperplexed says:
How is this analysis consistent with the majority opinion in Herring? Roberts plainly stated that the exclusionary rule is only applied when there is a significant deterrent effect of doing so, and cited a case refusing to exclude evidence when an officer relied on a statute later held unconstitutional. I can’t think of a rational distinction between reliance on a statute and reliance on judicial precedent.
I also can’t agree that the subjective intent of the arresting or searching officers is never relevant. While true that the exclusionary rule will not be applied when, e.g. an officer mistakenly believes a search to be unconstitutional, I think the reason this is true is because a constitutional violation is a threshold determination before you take up the question of the officer’s intent. Similarly, the articulation of an objective test of reasonableness does not foreclose an additional subjective test, i.e. if there is a constututional violation, the exclusionary rule will apply if the facts demonstrate either that the government could not have objectivly believed that its actions were constitutional, or that the government subjectively believed that its actions were unconstitutional.
March 19, 2010, 9:10 pmBuddy Hinton says:
Time to get rid of the exclusionary rule. Justice Roberts is showing the way.
Howevere, there should be no “good faith” defense or good-faith-based qualified immunity in a section 1983 action, however. So they should fix qi law when they get rid of the exclusionary rule.
March 19, 2010, 11:14 pmDowlan Smith says:
If you want a deterrent effect without allowing exclusion, there is a simple solution. If any official that violates someones 4th amendment rights, they receive a sentence equal to that of the convict.
I bet that would have a deterrent affect much more than any mamby-pamby exclusion rule!
March 19, 2010, 11:58 pmArthur Kirkland says:
Dowlan: You sound like a libertarian. What are you doing here?
March 20, 2010, 11:27 amFamily Guy-Season 8 Episode 2:Family Goy | Watch TV Shows Online For Free! says:
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March 20, 2010, 1:37 pmmarkm says:
Then there’s Officer Really Bad, who detains someone for hours and rips his car apart, not because he really expects to find evidence, but because he took a dislike to the person. The exclusionary rule does nothing to deter this behavior. Neither does Section 1983, after the courts finished limiting it with “qualified immunity”.
March 22, 2010, 12:04 am