Earlier this morning, Bill noted that the U.S. Supreme Court decided Heien v. North Carolina, No. 13-604, and copied an accurate summary of the decision from the Heritage Foundation. I want to explore a little further the important distinction between the substantive scope of the Fourth Amendment and the judge-made rule of exclusion of evidence found to have been obtained in violation of that amendment.
Today's decision answers a question that does not arise that often. Is a search "unreasonable" within the substantive scope of the Fourth Amendment if the police officer acts on an interpretation of the law that is reasonable (and not contrary to any precedent existing at the time) but that a court subsequently finds to be incorrect? The Supreme Court says no, 8-1, but both the majority and the concurrence note that this is a more demanding standard than the generous one provided for qualified immunity for civil liability. As Justice Kagan puts it in the concurring opinion,
This case got to the Supreme Court with this question because, as Justice Sotomayor notes in the dissent, "unlike most States, North Carolina does not provide a good-faith exception as a matter of state law." An exception, that is, to the rule that once a Fourth Amendment violation is found the evidence must be suppressed. States can, if they wish, have broader exclusionary rules than federal law requires, so they do not have to follow the various good-faith exceptions that the U.S. Supreme Court has recognized. This is why CJLF passed on the case and did not file an amicus brief. Our interest is in the broader exclusionary rule question, not the interesting but rarely occurring substantive Fourth Amendment issue decided today.
So here is the bombshell question not answered today but reserved for a future case: Should the U.S. Supreme Court stop carving out individual good-faith "exceptions" to an overall rule of suppression of evidence and instead make "bad faith" a required element of a defendant's motion to suppress evidence?
Today's decision answers a question that does not arise that often. Is a search "unreasonable" within the substantive scope of the Fourth Amendment if the police officer acts on an interpretation of the law that is reasonable (and not contrary to any precedent existing at the time) but that a court subsequently finds to be incorrect? The Supreme Court says no, 8-1, but both the majority and the concurrence note that this is a more demanding standard than the generous one provided for qualified immunity for civil liability. As Justice Kagan puts it in the concurring opinion,
If the statute is genuinely ambiguous, such that overturning the officer's judgment requires hard interpretive work, then the officer has made a reasonable mistake. But if not, not. As the Solicitor General made the point at oral argument, the statute must pose a "really difficult" or "very hard question of statutory interpretation."I look forward to citing the "really difficult standard" in a brief. Justice Kagan goes on to say these cases will be "exceedingly rare." That is perhaps a tad of an overstatement, but I do not expect them to be common.
This case got to the Supreme Court with this question because, as Justice Sotomayor notes in the dissent, "unlike most States, North Carolina does not provide a good-faith exception as a matter of state law." An exception, that is, to the rule that once a Fourth Amendment violation is found the evidence must be suppressed. States can, if they wish, have broader exclusionary rules than federal law requires, so they do not have to follow the various good-faith exceptions that the U.S. Supreme Court has recognized. This is why CJLF passed on the case and did not file an amicus brief. Our interest is in the broader exclusionary rule question, not the interesting but rarely occurring substantive Fourth Amendment issue decided today.
So here is the bombshell question not answered today but reserved for a future case: Should the U.S. Supreme Court stop carving out individual good-faith "exceptions" to an overall rule of suppression of evidence and instead make "bad faith" a required element of a defendant's motion to suppress evidence?
Let us begin with what should be obvious. Suppressing reliable evidence is a bad thing. The right result for a criminal trial is a factually accurate verdict. The defendant should be convicted if he is guilty and acquitted if he is innocent. Generally, it is necessary to explain this only to lawyers. People whose minds have not been infected by law school almost always understand this without being told.
Trials are more likely to reach the right, just result if the fact-finder receives all available reliable evidence, putting to one side for now the debate over how to handle flaky evidence. In Fourth Amendment cases, the evidence is nearly always solid from a reliability perspective. Picture, for a moment, the thundering denunciations and the turning-purple outrage when it is found that a prosecutor has "suppressed evidence." Shouldn't we be every bit as outraged when a judge grants a defendant's motion to suppress evidence? Yes, we should.
Exclusion of evidence from a criminal trial on the ground it was obtained in violation of the Fourth Amendment was unknown to our law for the first century after enactment of the amendment. It has been a feature of the law of federal criminal trials for a bit over a century, and about a half century ago the Warren Court imposed the same rule on the states. Giants of the law such as John Henry Wigmore and Benjamin Cardozo denounced the rule, and rightly so. It is an abomination.
Shaky theoretical justifications for the exclusionary rule have long since been abandoned by the Supreme Court. The justification today is strictly utilitarian. Other remedies for violation of the Fourth Amendment are deemed inadequate, the Supreme Court says, so evidence must be suppressed to remove the incentive for police departments to violate the constitutional search-and-seizure right with impunity. Given the existence of large, well-funded, litigious organizations such as the ACLU and the large number of left-leaning academics allowed to engage in litigation as a hobby on the students' dime, I consider the no-alternatives argument to be considerably weaker today than it was in the past. For this discussion, though, let us accept for the sake of argument that utilitarian considerations do still require some exclusionary rule. How far into the gray zone should the rule extend?
In United States v. Leon (1984), the Supreme Court carved out a big chunk for searches authorized by warrants. If a judge says the affidavit establishes probable cause and authorizes the search, the resulting evidence will not be suppressed merely because another court later disagrees. In Illinois v. Krull (1987), the Court said that if the officer is acting according to a statute and a court later finds the statute unconstitutional, that does not require suppression. Davis v. United States (2011) held the same for police reliance on a precedent subsequently overruled.
In 2009, the Supreme Court decision in Herring v. United States involved a police officer's mistaken belief that there was an outstanding warrant for the person he arrested due to a mistake by the sheriff's office in another county.
Back in the 20s, while still on New York's high court, future Supreme Court Justice Cardozo succinctly described what is wrong with the exclusionary rule. "The criminal is to go free because the constable has blundered." The other side conjures up images of lawless cops running roughshod over rights knowing exactly what they are doing with nothing to stop them. Can't the law treat these different situations differently?
Suppression of evidence is never any better than a necessary evil. Where not necessary, it is simply evil. The other side's justification for the rule should be an element of a suppression motion. The search should be shown to be in "objective bad faith" before evidence resulting from it can be suppressed. By "objective," I mean we will not probe the actual mental state of the police officer. The motion to suppress must establish as an element of the initial showing that the search was a violation of the Fourth Amendment on facts and law known or reasonably knowable to the officer. Absent such a showing, the evidence comes in.
Would such a rule inhibit the development of Fourth Amendment law and prevent important substantive questions from being answered, as Justice Sotomayor warns in today's case? The Supreme Court has already grappled with that in qualified immunity cases. Courts can answer the substantive question first when necessary to develop the law and answer the good/bad faith question second.
Personally, I would prefer to see Mapp v. Ohio (1961) overruled altogether. I do not think I will ever see that. But let us at least limit its application to those cases where the argument for it is substantial. Make bad faith an element of the exclusionary rule.
Trials are more likely to reach the right, just result if the fact-finder receives all available reliable evidence, putting to one side for now the debate over how to handle flaky evidence. In Fourth Amendment cases, the evidence is nearly always solid from a reliability perspective. Picture, for a moment, the thundering denunciations and the turning-purple outrage when it is found that a prosecutor has "suppressed evidence." Shouldn't we be every bit as outraged when a judge grants a defendant's motion to suppress evidence? Yes, we should.
Exclusion of evidence from a criminal trial on the ground it was obtained in violation of the Fourth Amendment was unknown to our law for the first century after enactment of the amendment. It has been a feature of the law of federal criminal trials for a bit over a century, and about a half century ago the Warren Court imposed the same rule on the states. Giants of the law such as John Henry Wigmore and Benjamin Cardozo denounced the rule, and rightly so. It is an abomination.
Shaky theoretical justifications for the exclusionary rule have long since been abandoned by the Supreme Court. The justification today is strictly utilitarian. Other remedies for violation of the Fourth Amendment are deemed inadequate, the Supreme Court says, so evidence must be suppressed to remove the incentive for police departments to violate the constitutional search-and-seizure right with impunity. Given the existence of large, well-funded, litigious organizations such as the ACLU and the large number of left-leaning academics allowed to engage in litigation as a hobby on the students' dime, I consider the no-alternatives argument to be considerably weaker today than it was in the past. For this discussion, though, let us accept for the sake of argument that utilitarian considerations do still require some exclusionary rule. How far into the gray zone should the rule extend?
In United States v. Leon (1984), the Supreme Court carved out a big chunk for searches authorized by warrants. If a judge says the affidavit establishes probable cause and authorizes the search, the resulting evidence will not be suppressed merely because another court later disagrees. In Illinois v. Krull (1987), the Court said that if the officer is acting according to a statute and a court later finds the statute unconstitutional, that does not require suppression. Davis v. United States (2011) held the same for police reliance on a precedent subsequently overruled.
In 2009, the Supreme Court decision in Herring v. United States involved a police officer's mistaken belief that there was an outstanding warrant for the person he arrested due to a mistake by the sheriff's office in another county.
Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.If the "question turns on culpability," then shouldn't culpability be an element of the defendant's suppression motion? Present exclusionary rule law has, in effect, a "presumed culpable until proven nonculpable" aspect to it.
Back in the 20s, while still on New York's high court, future Supreme Court Justice Cardozo succinctly described what is wrong with the exclusionary rule. "The criminal is to go free because the constable has blundered." The other side conjures up images of lawless cops running roughshod over rights knowing exactly what they are doing with nothing to stop them. Can't the law treat these different situations differently?
Suppression of evidence is never any better than a necessary evil. Where not necessary, it is simply evil. The other side's justification for the rule should be an element of a suppression motion. The search should be shown to be in "objective bad faith" before evidence resulting from it can be suppressed. By "objective," I mean we will not probe the actual mental state of the police officer. The motion to suppress must establish as an element of the initial showing that the search was a violation of the Fourth Amendment on facts and law known or reasonably knowable to the officer. Absent such a showing, the evidence comes in.
Would such a rule inhibit the development of Fourth Amendment law and prevent important substantive questions from being answered, as Justice Sotomayor warns in today's case? The Supreme Court has already grappled with that in qualified immunity cases. Courts can answer the substantive question first when necessary to develop the law and answer the good/bad faith question second.
Personally, I would prefer to see Mapp v. Ohio (1961) overruled altogether. I do not think I will ever see that. But let us at least limit its application to those cases where the argument for it is substantial. Make bad faith an element of the exclusionary rule.
As often happens, I provide the 12th grade version, and Kent provides the post-grad version.
The even larger question lurking here is whether the exclusionary rule, as applied to either the states or the federal government, should be abandoned.
Assuming Mapp remains on the books, I think the appropriate procedure for litigating suppression motions is as follows:
First, the defendant must meet his burden of establishing that the search/seizure was unreasonable under the Fourth Amendment. (This is in addition to, and comes after, establishing "standing," i.e., a subjective expectation of privacy in the subject of the search that society is willing to recognize as reasonable.)
Second, if the defendant satisfies his burden of proof on the substantive question, the burden should shift to the prosecution to establish that the search/seizure was conducted in "good" faith. But, I do agree with Kent, establishing "good" faith only requires the prosecution to establish that the search/seizure was not conducted in a grossly negligent/grossly unreasonable, reckless, or intentionally abusive manner.
I believe that requiring the prosecution to establish "good" faith (albeit by proving a negative, to wit, insufficient culpability in conducting the unreasonable search/seizure) -- instead of requiring a defendant who establishes a substantive violation to also prove "bad" faith -- is more consistent with the Court's current Fourth Amendment jurisprudence.
Yes, your outline is "more consistent with the Court's current Fourth Amendment jurisprudence."
I am proposing a change, which necessarily is not consistent with current jurisprudence.
Slightly off topic
"The defendant should be convicted if he is guilty and acquitted if he is innocent. Generally, it is necessary to explain this only to lawyers."
I cannot tell you how many times I have had to explain this, and I work in a prosecutor's office. Bay Area prosecutor's office as you may have guessed. Appearances and perceptions of justice and fairness are considered equally important today. Tell that to the wrongfully convicted at a fair trial.
There is a fundamental disconnect between why we are here and many of those who run this system. We move farther and farther away from reliabity of outcomes everyday. The only thing that has saved us, in my opinion, is some amazing forensic resources that fundamentally have altered major crime investigation. That, and the recording of statements.
I will answer your "larger questions" - probably yes. While the presumed alternative remedy of expanded tort liability for unreasonable searches might create a different sort of negative effect (police less aggressive on searches / seizures due to possible financial ramifications), excluding relevant evidence of guilt is just too extreme of a remedy with only the guilty really getting the benefit.
It sounds like a prosecutor's party up in here, but I'll give my two cents anyway.
As a defense lawyer in one of the most populated cities in the country, I see a lot of sketchy police behavior. And I see my fair share of outright dishonest, unconstitutional behavior. And I see more experienced police officers lie on the stand because they know enough about the law to know how to wiggle away from a suppression issue. (And a lot of our wonderful police do other terrible things that have come to light recently, such as fabricate 100 murder cases using the same crack-addict witness or plant guns on people to keep up departmental arrest quotas.)
In this game, where the police are incentivized by the raw numbers, not by justice, the exclusionary rule is as important as ever. It is one of the only checks on the "often competitive enterprise of ferreting out crime."
And, by the way, I don't know what a bunch of prosecutors are grumbling about regarding the extremeness of the exclusionary rule. It is very rare for a major crime, like a murder conviction, to get overturned or dismissed based on a Mapp issue. I have seen only a handful of successful suppressions or reversals based on Mapp issues...and most were for relatively petty crimes, mostly drug-related.
For the record, I am not now nor have I ever been a prosecutor.
It shouldn't be "very rare for a major crime, like a murder conviction, to get overturned or dismissed based on a Mapp issue." It should be never.
A late comment. In Hudson, the knock-and-announce case, I originally included an argument that the exclusionary rule should not apply to police conduct that would not result in an award of damages; that is, would result in a finding of qualified immunity under the circumstances. If an innocent person (or even a guilty one) would not receive damages, then there should be no exclusion.
Wiser heads persuaded me that the causation/exclusion issue involved in the knock-and-announce argument (the police have a warrant and a right to search, the matter is one of timing, and there is no causal connection between the timing violation and discovery of the evidence, which is the result of the warrant, unless one purpose of knocking and announcing is to give those inside a reasonable chance to destroy or hide the evidence/contraband) was more than enough to occupy the Court, and more would be overreaching at that time.
I bet that you've never been harassed by the police. I bet that you've never had your rights violated by the police.
Last year, my husband and I were detained and harassed by the police in broad daylight for no reason for 45 minutes. Trying to file an IAB complaint or to sue proved meaningless. The police union and the law enforcement state is just too powerful to care.
If a criminal lawyer and his educated husband cannot even respond effectively to police abuse, what hope does the average and often poor citizen have?
While Mapp may be imperfect, it has proven to be one of the only strong motivations for the police state to follow the law, more or less, when investigating major crimes. Certainly, the civil process is no motivation at all...the cops know it is a joke.
You have way too much faith in law enforcement and the government.
And what good did Mapp do you? None. In individual cases, it is a remedy exclusively for the guilty.
I do not dispute that Mapp has had an effect in motivating police to respect Fourth Amendment rights more than they did before 1961, but the question is whether it is the most appropriate remedy going forward. We need to have a national conversation, to borrow a term, about whether to find a replacement remedy, one that does more good for law-abiding people and less for criminals. Chief Justice Burger tried to start that discussion long ago, but it withered on the vine.
To answer your lead question, yes, I have been detained by police without probable cause, although only briefly. That was a violation of my Fourth Amendment rights. Not enough to sue over or even to file a complaint over, but enough that you lose your bet.
Not to prolong a discussion on a thread that no one else is probably reading, but...
...what would you propose as an effective replacement for the exclusionary rule?
My fear, based on personal and defense attorney experience, is that SCOTUS' majority will advance their agenda of retiring the exclusionary rule (more or less - perhaps with a big expansion of the "good faith" exception) and then that's that.
I have no faith in the elected branches to create some sort of replacement mechanism to motivate officers to follow the law. Any policy with the appearance of benefiting criminals is always unpopular (every politician fears getting Willie Hortoned).
I think that the rare case, where a major felony is compromised by suppression, is a necessary evil, for now.