by Savannah Ashby*

Should the Fourth Amendment exclusionary rule apply when an officer acts in good faith in the execution of a warrant based on tainted evidence? In this Contribution, Savannah Ashby (’18) discusses the differing ways in which Courts of Appeals have applied the good faith exception to the exclusionary rule in situations where the warrant is based on tainted evidence. Ultimately, this Contribution argues that the good faith exception to the exclusionary rule should not apply to evidence obtained in execution of a warrant based on tainted evidence as it more consistent with the goal of the exclusionary rule: deterring officers from committing Fourth Amendment violations.

The purpose of the Fourth Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”2 As a way of ensuring Fourth Amendment rights, the Supreme Court created the exclusionary rule in Weeks v. United States3 and subsequently extended the protections of the exclusionary rule to the states in Mapp v. Ohio.4 The exclusionary rule exists to deter future Fourth Amendment violations by excluding evidence that was obtained illegally,5 and the rule is limited to situations “in which the prosecution seeks to use the fruits of an illegal search or seizure against the victim of police misconduct.”6

The exclusionary rule balances deterring unlawful conduct by police officers against preserving justice. As the Court explained in Herring v. United States, the exclusionary rule applies when police conduct is “sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”7 The rule exists to deter “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”8 Because the exclusionary rule is based on deterrence, evidence should not be excluded “when the police act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful, or when their conduct involves only simple, isolated negligence.”9

However, courts have diverged in holding whether the good faith exception to the exclusionary rule should apply when a warrant is issued on the basis of tainted evidence. While the Second, Eighth, Ninth, and Eleventh Circuits have held that the good faith exception does not apply when a search warrant has been issued on the basis of tainted evidence, the Fifth and Sixth Circuits apply the good faith exception if an officer had an objectively reasonable belief in the validity of the warrant that was based on tainted evidence. This Contribution will discuss whether the warrant seeker’s belief in the validity of the warrant should affect whether the good faith exception to the exclusionary rule should apply, and argue that the good faith exception should not apply to evidence obtained from the execution of a warrant based on tainted evidence.

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The Supreme Court created a good faith exception to the exclusionary rule in United States v. Leon.10 A good faith exception to the exclusionary rule exists when “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.”11 The Court also explicitly stated four instances where the good faith exception should not apply:

(1) when the issuing magistrate was misled by information in an affidavit that the affiant knew or reasonably should have known was false; (2) when the issuing magistrate wholly abandoned his judicial role; (3) when the warrant affidavit is so lacking in indicia of probable cause as to render official belief in its existence unreasonable; and (4) when the warrant is so facially deficient in failing to particularize the place to be searched or the things to be seized that executing officers cannot reasonably presume it to be valid.12

In order for evidence not to be excluded, the officer who obtained the evidence must have been acting in good faith. An officer is acting in good faith if, after viewing the totality of the circumstances, a “reasonably well trained officer would have known that the search was illegal despite the magistrate’s authorization.”13 An officer cannot solely rely on the issuance of a warrant when determining the legality of a search, and an officer should be assumed to have a reasonable knowledge of the law. Courts must consider the objective reasonableness of both the officers who executed a warrant and the officers who “originally obtained it or who provided information material to the probable-cause determination” that led to the warrant being issued.14

An officer must be reasonable in his or her reliance on the warrant to be acting in good faith.15 As the Supreme Court explained in Malley v. Briggs, the standard of objective reasonableness in Leon cases is the same standard as in qualified immunity cases.16 In Malley, the Court explained that sometimes “a magistrate, working under docket pressures, will fail to perform as a magistrate should,” which means that an officer should “exercise reasonable professional judgment” in regard to whether their affidavit has sufficient probable cause for a warrant.17 The officer “cannot excuse his own default by pointing to the greater incompetence of the magistrate.”18

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Although the premise of the good faith exception seems clear, the Courts of Appeals have diverged on whether or not the exception should apply when a warrant is issued based on tainted evidence. The Second, Eighth, Ninth, and Eleventh Circuits have held that Leon’s good faith exception does not apply when a search warrant has been issued on the basis of tainted evidence, while the Fifth and Sixth Circuits allow the good faith exception to apply if an officer had an objectively reasonable belief in the validity of a warrant that was based on tainted evidence. The former approach to the good faith exception is more consistent with the goals of the exclusionary rule.

In United States v. Reilly, the Second Circuit held that because officers failed to disclose certain facts about a pre-warrant search in a warrant affidavit, there was no good faith.19 The Second Circuit explained that “[g]ood faith is not a magic lamp for police officers to rub whenever they find themselves in trouble.”20 However, in United States v. Thomas, the court held that an officer’s misunderstanding of the law thinking that a dog sniff was not a search was reasonable and the execution of the warrant obtained based on evidence gained by that sniff was in good faith.21 In Thomas, the officer was acting in good faith and, because the law had just changed, was reasonable in believing that a dog sniff was not a search.22 Excluding the evidence would not serve to deter law enforcement officers from future Fourth Amendment violations.

The Eleventh Circuit has also made a distinction between unlawful searches and good faith actions. In United States v. McGough, officers entered an apartment without probable cause and used the evidence from that illegal entry to obtain a search warrant.23 The Eleventh Circuit held that “objectively reasonable law enforcement activity” and unlawful searches could not be the same thing.24 The court explained that the good faith exception should not apply where “the search warrant affidavit was tainted with evidence obtained as a result of a prior, warrantless, presumptively unlawful entry into a personal dwelling.”25 Therefore, the evidence should be excluded.

Similarly, in United States v. Vasey, an officer conducted a warrantless search of a car.26 The Ninth Circuit explained that in Leon, the officer acted in good faith both before and after the magistrate issued the search warrant and the “only error in the entire process was the magistrate’s erroneous finding that the evidence established probable cause.”27 Therefore, the Leon decision was not about providing an exception to excluding evidence obtained from the misconduct of police officers. The Ninth Circuit held that the officer’s use of tainted evidence that he had gathered to obtain a search warrant was “an activity that the exclusionary rule was meant to deter,” so the good faith exception should not apply.28 Further, the court explained that because magistrates are “simply not in a position to evaluate the legality of” evidence seized in a warrantless search, “a magistrate’s consideration does not protect from exclusion evidence seized during a search under a warrant if that warrant was based on evidence seized in an unconstitutional search.”29

The standard the Eight Circuit uses is slightly different in that it will not apply the Leon good faith exception when a warrant is based on evidence that was clearly obtained by violating the Fourth Amendment.30 In United States v. O’Neal, the Eighth Circuit held that a search warrant based on a violation of the Fourth Amendment could not qualify for the good faith exception because “[i]f the method by which evidence supporting a search warrant is seized is clearly illegal . . . evidence obtained under the resulting warrant should be excluded.”31 The Eighth Circuit found that “[n]o facts prior to the seizure of O’Neal’s bag could reasonably support the seizure” and “[n]o officer could in good faith believe that the facts would lead a reasonable person to believe that O’Neal was involved in criminal activity.”32 If this illegal behavior could be “sanitized by the issuance of a search warrant, then there will be no deterrence, and the protective aims of the exclusionary rule will be severely impaired if not eliminated.”33 Prior to O’Neal, the Eighth Circuit held in United States v. White that even though the Fourth Amendment had been violated, the officers’ behavior was “close enough to the line of validity to make the officers’ belief in the validity of the warrant objectively reasonable.”34 The officers seized luggage from a suspicious person without reasonable suspicion, but did not open and search it until they had obtained a warrant.35 Their actions, though unlawful, were something that an objectively reasonable officer could have believed was valid, so they were entitled to the good faith exception when they acted on the warrant.36

Unlike the Second, Eighth, Ninth, and Eleventh Circuits, the Sixth and Fifth Circuits allow the good faith exception to apply if an officer had an objectively reasonable belief in the validity of a warrant that was based on tainted evidence. In United States v. McClain, the Sixth Circuit held that “the facts surrounding the initial Fourth Amendment violation were ‘close enough to the line of validity to make the officer’s belief in the validity of the warrant objectively reasonable.’”37 The Sixth Circuit emphasizes the importance of the fact that “the officers who sought and executed the search warrants were not the same officers who performed the initial warrantless search, and Officer Murphy’s warrant affidavit fully disclosed to a neutral and detached magistrate the circumstances surrounding the initial warrantless search.”38 However, this weakens the deterrent goals of the exclusionary rule by allowing an officer to pass illegally obtained evidence to another law enforcement agent.

The Fifth Circuit follows similar reasoning in deciding if the good faith exception should apply. In United States v. Massi, the Fifth Circuit adopted a two-part test to determine if there was good faith or not.39 In order for the good faith exception to apply:

(1) the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be “close enough to the line of validity” that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct, and (2) the resulting search warrant must have been sought and executed by a law enforcement officer in good faith as prescribed by Leon.40

The court held that, in order for the officer who presents the magistrate the affidavit to be acting reasonably, the important factor is their “awareness at the time of presenting the affidavit that the conduct violated constitutional rights that would affect the application of the good faith exception.”41 Similarly, in United States v. Woerner, the court held that the good faith exception applied because the officer who pursued the warrant had objective good faith and did not know about the other officer’s investigation.42

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The majority view is more consistent with the Supreme Court’s reasoning in Leon and Malley. Magistrate judges sometimes make mistakes when issuing warrants. However, as the Court emphasized in Malley, an officer has a duty not to execute a warrant that a reasonable officer would know to be based on insufficient probable cause. Further, the Fifth and Sixth Circuit’s reasoning seems to ignore the objective reasonableness of the officer who performed the initial illegal search if the second officer was acting in good faith, which is contrary to the deterrence purposes of the exclusionary rule.

The exclusionary rule exists to deter police officers from future Fourth Amendment violations. Not excluding evidence obtained from executing a warrant based on unlawfully obtained evidence drastically undermines the deterrent effect of the exclusionary rule. Like in Leon, the good faith exception should be limited to instances where law enforcement acts in good faith throughout the entire process. Officers should not be able to bypass the Fourth Amendment by passing unlawfully obtained evidence to other officers who then use the evidence as the basis of a warrant. In fact, allowing officers to act in such a way seems to incentivize Fourth Amendment violations. For example, warrantless searches are, in most instances, per se unreasonable.43 Therefore, even if the magistrate judge knew about the warrantless search before issuing the warrant, no officer could reasonably believe evidence obtained from a warrantless search established sufficient probable cause for a warrant.

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The exclusionary rule is essential for protecting Fourth Amendment rights. If the good faith exception is extended to encompass evidence obtained from the execution of a warrant based on tainted evidence, the exclusionary rule would lose its deterrent effect.

* Savannah Ashby is a 3L at New York University School of Law. This piece is a commentary on one issue of the problem from the 2017 Jerome Prince Memorial Evidence Competition, sponsored by Brooklyn Law School. The problem centered the issue of whether the good faith exception to the exclusionary rule could apply in instances where the probable cause supporting issuance of the warrant was established with evidence seized in violation of the Fourth Amendment. The views expressed in this article do not necessarily represent the views of the author. Rather, this article is a distillation of one side of an argument assigned to the author at the 2017 Jerome Prince Memorial Evidence Competition.
2. Camara v. Mun. Court, 387 U.S. 523, 528 (1967).
3. 232 U.S. 383, 398 (1914).
4. 367 U.S. 643 (1961).
5. United States v. Calandra, 414 U.S. 338, 348 (1974) (the exclusionary rule is “a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.”).
6. United States v. Leon, 468 U.S. 897, 910 (1984).
7. 555 U.S. 135, 144 (2009).
8. Id.
9. Davis v. United States, 564 U.S. 229, 238 (2011) (internal citations omitted).
10. Leon, 468 U.S. 897.
11. Id. at 922.
12. United States v. Woerner, 709 F.3d 527, 533–34 (5th Cir. 2013) (citing Leon, 468 U.S. at 921–25).
13. Leon, 468 U.S. at 922 n.23.
14. Id. at 923 n.24.
15. Id. at 922 (“[T]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable.”).
16. 475 U.S. 335, 344 (1985).
17. Id. at 345-46.
18. Id. at 346 n.9.
19. 76 F.3d 1271, 1280 (2d Cir. 1996).
20. Id.
21. 757 F.2d 1359, 1368 (2d Cir.1985).
22. Id. (“The magistrate, whose duty it is to interpret the law, determined that the canine sniff could form the basis for probable cause; it was reasonable for the officer to rely on this determination.”).
23. 412 F.3d 1232, 1233-35 (11th Cir. 2005).
24. Id. at 1240.
25. Id. (quoting United States v. Meixner, 128 F.Supp.2d 1070, 1078 (E.D. Mich. 2001)).
26. 834 F.2d 782, 789–90 (9th Cir. 1987).
27. Id. at 789.
28. Id.
29. Id. at 789-90.
30. United States v. O’Neal, 17 F.3d 239, 243 n.6 (8th Cir. 1994).
31. Id.
32. Id.
33. Id.
34. 890 F.2d 1413, 1419 (8th Cir. 1989).
35. Id.
36. Id. (“This case fits the rule [in Leon]. We believe the Fourth Amendment was violated, but we also believe the facts of this case are close enough to the line of validity to make the officers’ belief in the validity of the warrant objectively reasonable.”).
37. 444 F.3d 556, 566 (6th Cir. 2006) (quoting United States v. White, 890 F.2d 1413, 1419 (8th Cir. 1989)).
38. Id.
39. 761 F.3d 512, 531 (5th Cir. 2014).
40. Id. at 528.
41. Id.
42. United States v. Woerner, 709 F.3d 527, 534 (5th Cir. 2013).
43. City of Los Angeles v. Patel, 135 S. Ct. 2443, 2452 (2015) (warrantless searches “are per se unreasonable . . . subject only to a few specifically established and well-delineated exceptions” (alteration in original) (quoting Arizona v. Gant, 556 U.S. 332, 338 (2009))).