And The Winner Is . . . Screwed

Dear Mr. Rodriguez:

Congratulations! You were right, a traffic stop ends when the officer hands you the ticket, even if it’s just a warning. Done. Over.  He doesn’t get to then ask you for permission to search your car. He doesn’t get to make you wait for one of those adorable police dogs to show up, walk around your car, sniff and, well, we all know what happens from there, don’t we.

Nope, you nailed it. Dennys (may we call you Dennys?), this is big. From now on, whenever a court learns that a cop held a motorist beyond the completion of the core mission of a traffic stop, the judge is going to say your name. Yours! Maybe it’s not as big a deal as Ernesto Miranda or Clarence Earl Gideon, but it’s no small shakes either. You, Dennys, made this happen because you took the fight all the way to the Supreme Court. You da man, Dennys.

Now for a little bad news. While you’re going down in history, it’s not really going to do much for you.  I know, you stuck it out, made the right, and reached the top of the mountain. Good on you for your tenacity.  But as much as you convinced us that your constitutional rights were violated, well, you aren’t going to get the benefit of your hard work.

You see, because you won, and the way cops understood their authority until you won, we give them one free pass on violating your constitutional rights. I know, it sucks, but how would they know you were going to kick butt? I mean, what are the chances, right? So they acted in good faith based on existing law and, since the purpose of suppression is to give them a little smack for being bad boys, there is no deterrence to be gained by punishing them for what they did in good faith.

We get it. How crazy is it that you won and still get screwed. But from this moment forward, a lot of people are going to get the benefit of what you did.  Some drug dealers will get away with it. Some parents, with no drugs in their car, on their way to picking up their kids at school won’t have to worry about them sitting there, waiting. We really can’t be sure of the parents, since we never actually hear about those people who don’t get arrested. But since we assume that the police follow what we say, we can all pat ourselves on the back believing that we’ve done some good here.

So yes, Dennys, you did good.  It’s just not going to do squat for you. Really sorry about that. Best of luck in your future endeavors, and don’t drop the soap (a little prison humor to lighten things up. Hahaha).

Your pals,

The Supreme Court of the United States of America

At Volokh Conspiracy, Orin Kerr offers a follow up on Dennys Rodriguez, the prevailing party in Rodriguez v. United States, a significant win to the extent that it holds that once a traffic stop is over, it’s over. The decision was a matter of significant consternation, as it has big implications for a lot of people, and yet offers a safeguard of dubious efficacy.  As for Dennys Rodriguez himself, however, the outcome went from brilliantly shiny to demoralizingly bleak:

An important theme in Fourth Amendment law these days is the rights/remedy gap. Over the past few years, courts have interpreted the Fourth Amendment broadly in some interesting ways. But when they have, a broad “good-faith exception” kicks in and takes away any remedy for the violation that results from the court’s broad interpretation. The result makes a lot of high-profile Fourth Amendment litigation mostly prospective. It’s often clear at the outset that the defendant will lose eventually. The litigation is mostly about whether the defendant will lose on the right or lose on the remedy, with the difference being the prospective application of the rule.

Rodriguez kicked butt on the rights issue, but the remedy didn’t go nearly as well, due to Davis v. United States. The Eighth Circuit burned Rodriguez on remand, giving the cops a free pass under the good faith exception.

Yes, the guy whose case established the rule ends up not getting the benefit of it.  For those of you into incentive theory, this isn’t a good thing.  For those who merely think this sucks, you’re right. It sucks.

Davis is one of those adventures in sophistry that saves Sam Alito from having to waste one of those little blue pills. Win on the issue of whether your constitutional rights were violated, but lose on getting the relief that would otherwise come with it, because the poor cops didn’t know any better. So why bother?

“[A] good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions” because “defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue.” In other words, Rodriguez’s incentive doesn’t matter. If he hadn’t litigated the issue, someone else might have.

It’s a hard one to wrap your head around. Lawyers and judges may “get it,” but it’s still total bullshit, a fantasy that only a SCOTUS robe, prosecutor or cop could love.

Ever the optimist, Orin offers a positive spin on this flagrantly ridiculous and unfair outcome:

To the extent the justices used to feel pressured into reading the Fourth Amendment narrowly to avoid setting bad guys free, the expanded good-faith exception largely takes that pressure away. The Court now has more freedom to adopt pro-defendant Fourth Amendment rules because it’s unlikely criminals will go free no matter how the justices rule.

After all, isn’t the real point of the Supreme Court’s authority to interpret the Constitution to make it all sound totes groovy while making sure no criminal goes free?


12 thoughts on “And The Winner Is . . . Screwed

  1. Keith

    I may not be a criminal defense lawyer, but having been alive for a couple years, this motivation issue seems pretty significant.

    Sure, it may be in some other clients’ interest to still pursue the claim, but to charge this client for the endeavor seems pretty sketchy.

    And if you do it on the theory you’ll be helping someone else, how is the logic different than when those folks were asking for everyone to go to trial to slow the system to a crawl? Forsaking the current client for the betterment of society doesn’t appear to be your general job description.

    But again, I’m not a criminal defense lawyer.

  2. Cristian

    I propose a fee-shifting statute to seek reimbursement from DOJ after any good-faith reversals following a big Supreme Court win.

    1. SHG Post author

      That’s good for the lawyers, but still doesn’t do much for the defendant, especially if he’s got indigent counsel. That said, I look forward to your election to Congress when your proposals will matter.

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