Contributions

Don’t Depart From Deterrence: The Exclusionary Rule And Warrants Based On Tainted Evidence

By Savan­nah Ash­by1

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, 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.

* * * * *

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

* * * * *

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

* * * * *

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.

* * * * *

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.

 

Notes:

1. 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))).