This is my second 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 #2: The Benefit of the Exclusionary Rule on Direct Appeal. Post #1 is available here.
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Whether you call the issue “good faith,” “retroactivity”, or something else, the exclusionary rule is justified for changing law on direct appeal only if the overall systematic benefits of applying the rule to cases of changing law exceed the costs. So we need to tally up the benefits and the costs. This post will address the benefits. My next post will address the costs, and it will then then compare the two.
1. How Fourth Amendment Law Develops. To appreciate the benefits of the exclusionary rule for changing law, you need to understand how Fourth Amendment law develops. Fourth Amendment law develops in a case-by-case fashion. As a particular law enforcement technique begins to be used, cases begin to appear deciding whether it is lawful. Sometimes all the lower courts agree on its lawfulness, and the law never develops past that point: No split arises, and the the treatise-writers treat the lower court decisions as having settled the law. The Supreme Court stays out.
But sometimes the lower courts begin to disagree. One circuit will say the technique is lawful, and another circuit will say it’s not. A third might say it’s lawful sometimes but not other times. Now things get interesting. The circuit split leads to cert petitions: Litigants who have lost at the lower courts because the circuit law was against them will ask the Supreme Court to change the law and recognize that their circuit law is wrong. After the split exists and the issue has percolated for a bit, the Supreme Court will take one of those lower court cases and decide, de novo, whether the technique is lawful or not. The government will argue that the technique should be deemed legal; the defense will argue that the technique should be deemed illegal. The Supreme Court decision then settles the law.
In some cases, the Justices will decide they want to revisit one of their past decisions. Usually the Justices send early signals in the form of concurrences or dissents in marginally related cases. The opinions will argue that the settled law has to be changed. Once again, this generates cert petitions. Litigants who have lost at the lower courts because the law was against them will ask the Supreme Court to change the law. If four or more Justices want to rethink the old precedent, the Justices will take the case and decide, de novo, whether their old precedent is correct. The government will argue that the technique should be deemed legal; the defense will argue that the technique should be deemed illegal. The new Supreme Court decision then re-settles the law. (The recent litigation leading up to Arizona v. Gant provides an example. Justice Scalia’s 2004 concurrence in Thornton v. United States signaled that he was ready to ditch Belton, which led to rumblings in the lower courts, the grant in Gant, and then the 5-4 decision in Gant that effectively overturns Belton.)
2. The Critical Role of the Exclusionary Rule for Changing Law. What does this have to do with the exclusionary rule for changing law? The exclusionary rule is the linchpin that makes this entire process work. The process of Fourth Amendment development only works if litigants have a reason to ask the Supreme Court to change the law. And the exclusionary rule for changing law on direct appeal provides the critical incentive ex ante: The exclusionary rule gives criminal defendants an incentive to ask for changes in the law because it creates a possibility they might benefit from those changes.
Of course, even with this incentive, defendants will ask for changes in the law only rarely in practice. If the courts are showing no signs of changing the law, or if the rules are stable and widely-accepted, such claims will fall on deaf ears and no one will bother to raise such arguments. But when the law is unstable, either due to a circuit split or separate opinions indicating that changes are possible, the (generally remote) prospect of benefiting from a new Supreme Court rule is the carrot that keeps litigants asking for changes in the law. And in those circumstances, the requests for changes in the law provide the fuel needed to make the system work: The requests give the Supreme Court the cases, and the forthright arguments for and against different legal rules, that allow the Court to rule and thereby settle the law.
It’s easy to miss this critical function, as it’s mostly something Supreme Court Justices see and care about. It’s pretty far removed from the trenches: Most litigants, and most lower court judges, never need to think about this sort of dynamic. But think about how the law would develop if defendants could not benefit from changes in the law in their favor: Defense lawyers would have no reason to make such arguments, and the Supreme Court would have no reason to take such cases if they did.
For example, imagine a swing Justice writes a concurrence that calls for a change in the law in a pro-defendant direction. No defense attorney could ethically make that argument in a cert petition. By asking for a change in law along the lines of the concurrence, the lawyer would be effectively conceding that the good faith exception applies and his client cannot benefit from new rule. Even if a lawyer made the argument, just to help the law along, the Supreme Court wouldn’t take the case: The litigation would necessarily lead to an advisory opinion because the result would be the same. The Justices would quite reasonably stay away, for all the reasons they avoid advisory opinions. And even if the stars aligned — a lawyer made the argument and the Justices agreed to hear the case to issue an advisory opinion — the defendant’s lawyer would have to make an intentionally false argument: He would have to try to argue that his proposed rule was not actually a change in the law, but was really just applying the old law.
You would have the same result with hard Fourth Amendment issues that produced a deep circuit split. Criminal defendants in circuits with established circuit law against them couldn’t argue the issue because the circuit law against them would trigger the good faith exception. There might be rare cases in which defendants could actually try to make such arguments– if a circuit established adverse circuit law in the defendants own case, for example. But even then, the argument would be really uphill: If the good faith exception would apply unless there was clearly established law, and there was no law established, then the good faith exception presumably would apply to that case just as it would if circuit precedents explicitly authorized the practice. And such cases would only be a small percentage of the cases out there anyway, so such arguments would be rare.
The result would be a remarkable asymmetry between the government and defendants in criminal cases. The Department of Justice would be free to argue for changes in the law. If the Court accepted DOJ’s argument, the new decision would apply immediately to that case and all cases on direct review. But criminal defendants would have no such ability. The result would be a systematic bias in favor of expanded government power, not arising out of a choice by the Justices but rather the structure of litigation incentives. DOJ would control when and in what case the Supreme Court heard claims to change the law, and all those claims would nearly always be claims to expand government power. I suppose that’s a promising rule if you think government power must always be expanded. But for the rest of us, it’s a disaster: It means the Supreme Court would be denied the regular process of settling the law from both sides, with both arguments in favor of expanded power and arguments against it.
3. How About a First Come, Only Served Rule? I know what you’re thinking. How about a rule that applies the new law to the first case but then the good faith exception to all the other cases? That approach maintains the critical incentive while not freeing lots of bad guys, right?
The Supreme Court tried that approach, actually. That was the Warren Court’s approach to retroactivity law, in place from 1965 to 1987. The exclusionary rule always applied to the first case recognizing the right, and then the Court would apply a case-by-case cost/benefit analysis under the guise of retroactivity to determine if anyone else could benefit from the new rule. But it proved to be an incredible mess, and it is widely understood by today’s Justices to have been a wrong turn that was properly corrected when the approach was overruled in 1987.
Here’s how the Supreme Court explained the history in Danforth v. Minnesota, 552 U.S. 264 (2008), handed down just two years ago:
Our decision today must also be understood against the backdrop of our somewhat confused and confusing “retroactivity” cases decided in the years between 1965 and 1987. Indeed, we 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. As we have already explained, 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.FN5
FN5. It may, therefore, make more sense to speak in terms of the “redressability” of violations of new rules, rather than the “retroactivity” of such rules. Cf. American Trucking Assns., Inc. v. Smith, 496 U.S. 167, 201, 110 S.Ct. 2323, 110 L.Ed.2d 148 (1990) (SCALIA, J., concurring in judgment) (“The very framing of the issue that we purport to decide today-whether our decision in [ American Trucking Assns., Inc. v. Scheiner, 483 U.S. 266, 107 S.Ct. 2829, 97 L.Ed.2d 226 (1987),] shall ‘apply’ retroactively-presupposes [an incorrect] view of our decisions as creating the law, as opposed to declaring what the law already is”). Unfortunately, it would likely create, rather than alleviate, confusion to change our terminology at this point. Accordingly, we will continue to utilize the existing vocabulary, despite its shortcomings.
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The serial incorporation of the Amendments in the Bill of Rights during the 1950’s and 1960’s imposed more constitutional obligations on the States and created more opportunity for claims that individuals were being convicted without due process and held in violation of the Constitution. Nevertheless, until 1965 the Court continued to construe every constitutional error, including newly announced ones, as entitling state prisoners to relief on federal habeas. “New” constitutional rules of criminal procedure were, without discussion or analysis, routinely applied to cases on habeas review. See, e.g., Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Gideon, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Eskridge v. Washington Bd. of Prison Terms and Paroles, 357 U.S. 214, 78 S.Ct. 1061, 2 L.Ed.2d 1269 (1958) (per curiam).
In Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965), the Court expressly considered the issue of “retroactivity” for the first time. Adopting a practical approach, we held that the retroactive effect of each new rule should be determined on a case-by-case basis by examining the purpose of the rule, the reliance of the States on the prior law, and the effect on the administration of justice of retroactive application of the rule. Id., at 629, 85 S.Ct. 1731. Applying those considerations to the exclusionary rule announced in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), we held that the Mapp rule would not be given retroactive effect; it would not, in other words, be applied to convictions that were final before the date of the Mapp decision.FN8 Linkletter, 381 U.S., at 636-640, 85 S.Ct. 1731.
FN8. Linkletter arose in the context of a denial of federal habeas relief, so its holding was “necessarily limited to convictions which had become final by the time Mapp … [was] rendered.” Johnson v. New Jersey, 384 U.S. 719, 732, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966). We noted in Linkletter that Mapp was being applied to cases that were still pending on direct review at the time it was decided, so the issue before us was expressly limited to “whether the exclusionary principle enunciated in Mapp applies to state court convictions which had become final before rendition of our opinion.” 381 U.S., at 622, 85 S.Ct. 1731 (footnote omitted). Shortly thereafter, however, we held that the three-pronged Linkletter analysis should be applied both to convictions that were final before rendition of our opinions and to cases that were still pending on direct review. See Johnson, 384 U.S., at 732, 86 S.Ct. 1772; Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
During the next four years, application of the Linkletter standard produced strikingly divergent results. As Justice Harlan pointed out in his classic dissent in Desist v. United States, 394 U.S. 244, 257, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969), one new rule was applied to all cases subject to direct review, Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); another to all cases in which trials had not yet commenced, Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); another to all cases in which tainted evidence had not yet been introduced at trial, Fuller v. Alaska, 393 U.S. 80, 89 S.Ct. 61, 21 L.Ed.2d 212 (1968) (per curiam); and still others only to the party involved in the case in which the new rule was announced and to all future cases in which the proscribed official conduct had not yet occurred, Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967); DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968) (per curiam). He reasonably questioned whether such decisions “may properly be considered the legitimate products of a court of law, rather than the commands of a super-legislature.” 394 U.S., at 259, 89 S.Ct. 1030.
Justice Harlan’s dissent in Desist, buttressed by his even more searching separate opinion in Mackey v. United States, 401 U.S. 667, 675, 91 S.Ct. 1160, 28 L.Ed.2d 404 (1971) (opinion concurring in judgments in part and dissenting in part), and scholarly criticism, laid the groundwork for the eventual demise of the Linkletter standard. In Griffith v. Kentucky, 479 U.S. 314, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987), the Court rejected as “unprincipled and inequitable,” the application of the Linkletter standard to cases pending on direct review.
Under Griffith v. Kentucky, every criminal procedure case is “retroactive” — that is, provides the remedy of the exclusionary rule to enforce it, if available under other doctrines — to every case on direct review. That’s been the law since 1987.
Any effort to apply a “good faith” exception in a way that doesn’t apply to the first case but would apply to all the rest of the cases simply resurrects the failed Linkletter standard. The sad history of the Linkletter doctrine and the Supreme Court’s rejection of it in Griffith shows why it is an unworkable approach.
So that’s the benefit side of the equation. The next issue is, what about the costs of the exclusionary rule in this setting? I’ll address costs, and compare them to the benefits, in my next post.