Win At SCOTUS, Lose Anyway

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.

He points to the opinion of the Virginia Supreme Court, to which the Supreme Court remanded Collins v. Virginia.

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.

17 thoughts on “Win At SCOTUS, Lose Anyway

  1. Richard Kopf


    Professor Kerr suggests that such decisions as the ones you mention are “advisory opinions” from SCOTUS and they are therefore unconstitutional. He is, of course, wrong because ruling on one issue and remanding on another is not advisory.

    But, as you and I have discussed before, SCOTUS ought to care more about being practical. Litigation must end sometime. The practice of finding an alternative ground requiring remand despite a ruling on the merits on the first ground wastes the time and money of all the participants. It spawns a seemingly endless cycle of litigation. It encourages games both by lawyers and inferior court judges.

    A much more practical result is what I would call the “King’s X rule.” If, by the time a case reaches SCOTUS, an inferior court has not decided the alternative ground, then for purely prudential reasons an adverse decision at SCOTUS sticks and brings the case to a final conclusion.

    SCOTUS has become so academic that it has forgotten its main function–finally bringing an end to a case or controversy. I don’t care who wins. I just want a case-ending decision so as to curtail the systemic costs of endless litigation. If a cert. grant won’t result in a case-ending result, then don’t grant cert.

    In short, pyrrhic victories at SCOTUS makes everyone but the Zen Masters suckers for playing what amounts to a shell game. All the best.


    1. SHG Post author

      We are old and practical, plus we don’t have to write deeply thoughtful law review articles to get tenure or enhance our academic stature.

      1. David Meyer-Lindenberg

        Especially since you’d need, what, three treatises just to enhance your way up to normal height?

        1. Richard Kopf

          What do you know!

          The giant has a streak of killer in him.

          I wonder whether it has anything to do with the cold of Canada?

  2. John Barleycorn

    “….which will have to be good enough to keep him warm at night in his prison cell because they’re just going to let the Constitution get in the way of a search.”

    Could be the wine (Goatherders drink lots of whatever is available, in quantities that are impressive) but isn’t that sentence up there missing a “not”. Could be it could go either way depending on who is looking at who through Porky’s hole….but no “not” in there is gonna lead to another bottle getting corked and that could be trouble, especially if the dogs want to extend their nap time this afternoon.

    Not that I wasn’t trying to follow along or anything… Could just be an abandoned takeoff?

      1. John Barleycorn

        Especially for posts like this! Thank you Mr. Greenfield.

        Flight check lists are exhaustive… but it is oddly always reassuring, in an inclusive sort of way, even when your outrage is finely needling and sternly pointed.

        I would have gone with more fucking fuel for flight…but, heck if I am really aware of the calendar….

        And, not that I would admit this, but fuck flight if it can be avoided.

        Cheers! Couldn’t let that typo slide for readers months, and years from now will read this post… And you have a reputation to uphold and all….

        P.S. Goatherders have a weird super-awareness of “constitutional horizons” and pay crazy unspoken attention to landscapes with a geographical sense of travel that is nothing short of peacefully and wickedly aware of today and the next time they will “visit”. Plus, they keep some awesome and interesting campsites.

        So, put a visit a to a freelance goatherder’s campsite on your to do list calendar. You CDL’s, judges, and other officers of the court, and them goatherders would get along me thinks! As long as you provide transportation for those prosecutors who are too fucking lazy to walk, even a step, towards a future that incorporates the majesty of the horizon given to them and the wisdom to preserve it.

  3. ryan

    The Virginia Supreme Court says there was no binding precedent stating that the automobile exception did not apply to houses.

    In Florida v. Jardines, Scalia elaborated on his property rights test and held that when an officer steps into the curtailage to search, and has the subjective intent to search, he violates the 4th amendment if there is no warrant. Scalia held the officer exceeds the license granted to persons to enter the land and he did not limit his holding to just coming onto the land with a dog. Scalia goes on and on about intent to search and the scope of a license to enter land. He distinguishes automobile cases as well from the home, which he goes on and on about as sacred. He has a footnote that makes the scope of the holding clear:

    “It is not the dog that is the problem, but the behavior that here involved use of the dog. We think a typical person would find it “ ‘a cause for great alarm’ ” (the kind of reaction the dis-sent quite rightly relies upon to justify its no-night-visits rule, post,at 5) to find a stranger snooping about his front porch with or without a dog. The dissent would let the police do whatever they want by way of gathering evidence so long as they stay on the base-path, to use a baseball analogy—so long as they “stick to the path that is typically used to approach a front door, such as a paved walkway.” Ibid. From that vantage point they can presumably peer into the house through binoculars with impunity. That is not the law, as even the State con-cedes. See Tr. of Oral Arg. 6.”

    That case came out a year before the search in the Virginia case.

  4. Grant

    Just once, I would like the Supreme Court to quote The Hollow Men in explaining the import of their decisions to the person whose case is at issue.

  5. Charles

    “Good faith” shouldn’t mean that the cop didn’t mean to violate the Constitution. “Good faith” should mean that the cop took clearly articulated steps to avoid violating the Constitution and still slipped up in some way. And then it should be allowed only as a defense to § 1983 action, not as an excuse to violate the Constitution.

    While we’re on the subject, has anybody seen my unicorn?

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