As that well-known legal wag Orin Kerr put it, why bother?
Reminder: Every defendant who wins at SCOTUS when the court takes a broad interpretation of the 4th Amendment right will quietly lose on remand a year later under the good faith exception to the exclusionary rule.
This case returns to us on remand from the United States Supreme Court. It involves an
unsuccessful motion to suppress filed in the trial court by Ryan Austin Collins. Convicted of
receipt of stolen property, Collins appealed to the Court of Appeals, claiming that the trial court should have excluded evidence obtained by police during a warrantless search of a motorcycle parked on a private residential driveway.
The Court of Appeals affirmed the conviction, holding that exigent circumstances justified the search. See Collins v. Commonwealth, 65 Va. App. 37, 46-48 (2015). On further appeal to us, we affirmed on a different ground, holding that the automobile exception justified the warrantless search. See Collins v. Commonwealth, 292 Va. 486, 488, 506 (2016).
Imagine the excitement at the Collins home when word came that he had prevailed at the Supreme Court after all he had been through. Getting to SCOTUS is huge, given how few cases the Nine find themselves capable of addressing. It’s very hard work when one has to divide one’s time between posing for bobbleheads and award-winning films. Winning at SCOTUS is monumental. For the lawyer, at least.
But behind the case name is a person, here Ryan Collins. After the high of winning came the remand. The Commonwealth lost on the Automobile Exception at SCOTUS, a sub-exception to the Exigent Circumstances Exception, because the police officer entered upon the curtilage, a nouveau interpretation of the Fourth Amendment’s scope approaching it from the property rights position rather than the reasonable expectation of privacy perspective.
The Court limited its holding to the interplay between the automobile exception and the
curtilage doctrine. “We leave for resolution on remand,” the Court stated, “whether Officer
Rhodes’ warrantless intrusion on the curtilage of Collins’ house may have been reasonable on a different basis, such as the exigent circumstances exception to the warrant requirement.”
The historic rule for the Fourth Amendment was that any warrantless search was presumed unconstitutional. But it was subject to exceptions. And more exceptions. And then more, and some more. plus a few. And on remand, Virginia came up with two.
On remand, the Commonwealth argues that two independent grounds support the trial
court’s decision to deny Collins’s motion to suppress: the exigent circumstances exception to the warrant requirement and the good faith exception to the exclusionary rule.
But how can an argument to allow a presumed unconstitutional search show its face not just on appeal, but on remand from the Supreme Court? The Virginia Supreme Court has an excuse for that.
1, Collins argues that the Commonwealth should not be permitted to raise the good faith
exception to the exclusionary rule because it did not rely on the exception earlier in this
litigation. We disagree. Under the right-result-different-reason doctrine, an appellee may assert for the first time on appeal a purely legal ground for upholding the challenged judgment.
Throw every exception against a wall to see what sticks? “Why not?” says the Virginia Supreme Court. The court then went on to embrace the Good Faith Exception in a most expansive and peculiar way, as if it was bastard cousin to Qualified Immunity. It began with the litany of excuses for adjuring the Rule of warrantless searches.
The “heavy costs” of suppressing the truth, id., should always be a court’s “last resort,
not [its] first impulse,” Hudson v. Michigan, 547 U.S. 586, 591 (2006). “To trigger the
exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144. This deliberateness requirement focuses “the inquiry on the ‘flagrancy of the police misconduct’ at issue.” Davis, 564 U.S. at 238 (citation omitted). The rule thus seeks “to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring, 555 U.S. at 144. Only in such
circumstances can the violation be deemed “patently unconstitutional” or be characterized as
“flagrant conduct,” id. at 143-44, thereby justifying exclusion.
The Herring decision was a fiasco, giving rise to the Barney Fife exception. After all, Barney wasn’t a malicious cop, but just goofy and dumber than dirt. If the exclusionary rule exists to prevent malicious cops from intentionally violating constitutional rights, how could that apply to Barney? And so the less competent the cop, the greater his latitude to search.
But the Virginia Supreme Court still had to face the unfortunate question of how stupid could a cop be, particularly since the Commonwealth hadn’t thought him stupid enough to raise the Good Faith Exception until remand after the SCOTUS loss.
Ever resourceful, they manufactured a particularly Machiavellian rationale, riding the coattails of Justice Breyer’s dissent* in Davis v. United States.
Justice Breyer, even while opposing the exception, has persuasively explained why the
binding-precedent version of it necessarily draws artificial distinctions. In his dissent in Davis,
joined by Justice Ginsburg, he explained that
an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist.
Davis, 564 U.S. at 258 (Breyer, J., dissenting). “Thus, if the Court means what it now says,”
Justice Breyer concluded, then “it would place determinative weight upon the culpability of an
individual officer’s conduct, and . . . would apply the exclusionary rule only where a Fourth
Amendment violation was ‘deliberate, reckless, or grossly negligent,’” a conclusion that Justice
Breyer thought would allow “the ‘good faith’ exception” to “swallow the exclusionary rule.”
From this the Virginia Supreme Court concluded that if there is no caselaw specifically telling Officer Bonehead that what he’s about to do is unconstitutional, he’s covered by the Good Faith Exception. Gosh darn that dumb but otherwise well-intended Barney.
But what if you’re Ryan Collins? Back to SCOTUS? Getting there one is huge. Twice? And even if he did, winning again? And what if he did, since what is now fairly clear is that the Supreme Court of Virginia will do cartwheels to make sure his search finds an exception. He had one great win at the Supreme Court of the United States, which will have to be good enough to keep him warm at night in his prison cell because they’re just not going to let the Constitution get in the way of a search.
*The buried lede here is that a hyperbolic prediction of disaster in dissent can come back to bite one in the butt when another court decides to characterize the majority opinion as being just as overwhelming as the dissent claims it is.