Over at Volokh Conspiracy, Orin Kerr has done (as of now) a six part series of posts about the why the Good Faith Exception should not apply to a search that is lawful at the time it’s performed but subsequently held to be unconstitutional. The purpose of this series is to address the apparent conflict between the Supreme Court’s holdings in Herring, which Orin describes as a case with “language suggesting a broad approach to the good faith exception,” and Arizona v. Gant, which put the breaks on the common police practice of securing the defendant first, then performing a search incident after any potential threat is gone.
Before getting to Orin’s argument, a few words about the two cases giving rise to this mess are warranted. Herring , which approved a search and seizure based upon a negligent error in a warrant database, was characterized as the Barney Fife exception to the warrant clause. It would be funny, if it wasn’t held constitutional. The bottom line is that there is no remedial benefit to the exclusionary rule when the error was negligent, so while there may be a 4th Amendment violation, there’s no remedy. I am not a big fan of the Herring decision.
On the other hand, Arizona v. Gant ended the tyranny of Chimel, a decision that followed the rubric but forgot the rationale, or a search incident to arrest, though it left the door swinging open for an untethered evidentiary search, sans warrant, even though every conceivable basis for a warrantless search ceased to exist. But we take wins where we find them, and this was a better decision than it could have been.
Orin explains that the Good Faith Exception is misunderstood primarily because the name suggests that it refers to the officer’s subjective good faith.
While I agree completely with Orin’s outcome, I see two issues arising from his argument. First, it presents a bit of a problem in court, since federal judges are funny about being presented with an argument, particularly one as prolix as this, that requires them to answer a lawyer’s rhetorical questions. Second, putting aside an officer’s subjective good faith, searches that adhere to existing precedent at the time performed seem also to comply with objective good faith, and a subsequent change in law doesn’t change that.
Like Orin, the name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?
The better approach, at least from my perspective, is to cut loose the Herring rationale of pure deterrence in favor of reading the 4th Amendment as a right given the citizenry to be free of unreasonable search and seizure, and the exclusionary rule as the remedy due the people for a violation of that right. The only issue then is whether the courts, yesterday, today or tomorrow, conclude that the 4th Amendment has been violated. Return to the rule, that a warrantless search is per se unreasonable, and tether any exceptions to the rationale giving rise to them, as opposed to sliding down the slippery slope of “it’s just a few baby steps away from lawful search and it makes the cops’ job so much easier.”
Until we stop considering the 4th Amendment only from the perspective of good cop/bad cop, which presupposes that there is some inherent authority to search and that any limitation is the exception rather than the rule, we’re going to struggle with reasons why adherence to bad law is wrong. We’ve got a ton of bad law already, but it’s hard to blame cops for enjoying its fruits, and harder still to explain why the law would penalize cops for compliance with existing precedent.
The problem, of course, is that my view flies in the face of Herring, where the Supremes ignored the rights of the defendant in favor of limiting the exclusionary rule, and only remedy there is for a 4th Amendment violation, to those situations where the conduct was sufficiently deliberate that the exclusionary rule would serve as deterrent. In other words, Orin’s approach could be applied given the state of the law, while mine would require a change in the law. What else is new?
Before getting to Orin’s argument, a few words about the two cases giving rise to this mess are warranted. Herring , which approved a search and seizure based upon a negligent error in a warrant database, was characterized as the Barney Fife exception to the warrant clause. It would be funny, if it wasn’t held constitutional. The bottom line is that there is no remedial benefit to the exclusionary rule when the error was negligent, so while there may be a 4th Amendment violation, there’s no remedy. I am not a big fan of the Herring decision.
On the other hand, Arizona v. Gant ended the tyranny of Chimel, a decision that followed the rubric but forgot the rationale, or a search incident to arrest, though it left the door swinging open for an untethered evidentiary search, sans warrant, even though every conceivable basis for a warrantless search ceased to exist. But we take wins where we find them, and this was a better decision than it could have been.
Orin explains that the Good Faith Exception is misunderstood primarily because the name suggests that it refers to the officer’s subjective good faith.
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.So far, so good. But the question that remains unanswered at this point is “why?” This proves to be more difficult, and Orin goes into a Socratic Q&A to make his point. Offering examples of subjective bad and good faith conduct by officers, and relying upon his assertion that subjective good faith is irrelevant as a given, he demonstrates that an officers desire or lack thereof to apply existing law creates logical conflicts if the Supremes determine otherwise during the pendency of the case.
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.
While I agree completely with Orin’s outcome, I see two issues arising from his argument. First, it presents a bit of a problem in court, since federal judges are funny about being presented with an argument, particularly one as prolix as this, that requires them to answer a lawyer’s rhetorical questions. Second, putting aside an officer’s subjective good faith, searches that adhere to existing precedent at the time performed seem also to comply with objective good faith, and a subsequent change in law doesn’t change that.
Like Orin, the name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?
The better approach, at least from my perspective, is to cut loose the Herring rationale of pure deterrence in favor of reading the 4th Amendment as a right given the citizenry to be free of unreasonable search and seizure, and the exclusionary rule as the remedy due the people for a violation of that right. The only issue then is whether the courts, yesterday, today or tomorrow, conclude that the 4th Amendment has been violated. Return to the rule, that a warrantless search is per se unreasonable, and tether any exceptions to the rationale giving rise to them, as opposed to sliding down the slippery slope of “it’s just a few baby steps away from lawful search and it makes the cops’ job so much easier.”
Until we stop considering the 4th Amendment only from the perspective of good cop/bad cop, which presupposes that there is some inherent authority to search and that any limitation is the exception rather than the rule, we’re going to struggle with reasons why adherence to bad law is wrong. We’ve got a ton of bad law already, but it’s hard to blame cops for enjoying its fruits, and harder still to explain why the law would penalize cops for compliance with existing precedent.
The problem, of course, is that my view flies in the face of Herring, where the Supremes ignored the rights of the defendant in favor of limiting the exclusionary rule, and only remedy there is for a 4th Amendment violation, to those situations where the conduct was sufficiently deliberate that the exclusionary rule would serve as deterrent. In other words, Orin’s approach could be applied given the state of the law, while mine would require a change in the law. What else is new?