The first thing to bear in mind whenever we talk about "violation" of the Fourth Amendment is that whether a given police action is in compliance or in violation is often a "judgment call."  It is not like the sideline of a football field where you know you are in bounds as long as your feet stay inside the clearly marked line.  It is more like a football field covered in snow, where only after the play is over do they brush off the snow to see if your footprint was inside or outside the line, and even then the line has been blurred enough that reasonable people can disagree on where its edge is.

The attenuation doctrine was developed to mitigate the harshness of the rule excluding "derivative" evidence.  That is, if evidence was obtained by means that are clearly valid, the evidence could nonetheless be excluded if that process was the result of an earlier violation, the so-called "fruit of the poisonous tree."  In the case of Wong Sun v. United States (1963), the case began with the arrest of a drug dealer without probable cause.  As often happens in drug cases, the police then climbed up the distribution chain with that dealer fingering his supplier who then fingered his own supplier.  The third-level dealer, Wong Sun, was arrested and released, and he later returned voluntarily and confessed.  This was held to be too attenuated from the original illegality to support suppression of the evidence.  Because this case involves a confession rather than physical evidence, there is discussion of Wong Sun's confession being an "act of free will."

The Court elaborated on the attenuation doctrine in Brown v. Illinois (1975), which was also a "mixed" Fourth and Fifth Amendment case and therefore also speaks in terms of "an act of free will," quoting Wong Sun.  (Note that, unlike the Fourth Amendment, the Fifth Amendment actually was intended to regulate trial procedure and actually does exclude a class of evidence -- compelled testimony by the defendant against himself.)  In this context, the Court rejected the idea that the giving of Miranda warnings alone was enough to make the confession admissible.

But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct, are all relevant.

Is this holding limited to cases where "an act of free will" is the intervening circumstance, or does it establish a more general exception? 

The facts of today's case are stated in the opinion.  Briefly, narcotics detective Douglas Fackrell was conducting surveillance of a house that had been anonymously reported on the tip line to be a drug market.  He decided to stop Edward Strieff, whom he saw leaving the house, and ask for his identification.  He ran a warrant check and found an outstanding warrant.  He arrested Strieff, and the legal search incident to an arrest with a legal warrant turned up methamphetamine and paraphernalia.

The prosecutor's judgment was that Officer Fackrell did not quite have the needed facts to support "reasonable suspicion," the standard required for a brief stop, and opposed suppression on the basis of the attenuation doctrine.  The trial judge found,

Officer Fackrell believed, albeit incorrectly, that he had sufficient suspicion of criminal activity to justify stopping the Defendant. The stop was thus not a flagrant violation of the Fourth Amendment. Rather, it was a good faith mistake on the part of the officer as to the quantum of evidence needed to justify an investigatory detention.

The Utah Supreme Court held that the doctrine was specifically limited to free will interventions.  The decision was surprisingly unanimous.  One would expect a limitation of an exception, and thus an expansion of a rule that is utterly indefensible on originalist grounds, to produce at least a dissent in such a conservative state.  Other decisions were contrary, prompting the Supreme Court to take the case up.

The Utah Attorney General briefed the case as a straight attenuation doctrine case.  CJLF took a different and bolder tack, as we do from time to time.  Given the trial court's holding, quoted above, it seemed to us that this case was best approached as a "good faith" case.  The Supreme Court has been steadily adding discrete "good faith" exceptions since 1984.  In United States v. Leon, the Court held that when police rely on a search warrant, the evidence is admissible even if a later court decides that the issuing magistrate did not actually have the needed probable cause to issue the warrant.  A number of other discrete exceptions have been added since then.

It is important to note here that "good faith," despite the term, does not actually refer to the police officer's subjective knowledge or judgment.  The question is an objective one.  In Herring v. United States (2009), the Court held that the police's reliance on incorrect information in a database qualified under the circumstances, but in different circumstances where reliance would be "reckless," the exception would not apply.

Based on language in relatively recent "good faith exception" cases, at the time I wrote CJLF's brief I believed there might be five votes on the Court to finally throw off this incremental "exception" mode and finally make "bad faith" (objectively determined) an element of all exclusion claims.  One of the five was, of course, the late Justice Antonin Scalia.  The case was argued February 22, and Justice Scalia's chair was draped in black.

The defendant made no attempt to defend the Utah court's narrow limitation of the attenuation doctrine to "free will" interventions.  The Supreme Court brushed it off in a paragraph.  "And the logic of our prior attenuation cases is not limited to independent acts by the defendant."  Neither dissenting opinion endorses the Utah Supreme Court opinion's theory, either.

With that out of the way, the case becomes one of analyzing the three Brown v. Illinois factors.   The third factor is analyzed in good-faith terms, citing a good-faith case.

Finally, the third factor, "the purpose and flagrancy of the official misconduct," Brown, supra, at 604, also strongly favors the State. The exclusionary rule exists to deter police misconduct. Davis v. United States, 564 U. S. 229, 236-237 (2011). The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police misconduct is most in need of deterrence--that is, when it is purposeful or flagrant.

Officer Fackrell was at most negligent. In stopping Strieff, Officer Fackrell made two good-faith mistakes. First, he had not observed what time Strieff entered the suspected drug house, so he did not know how long Strieff had been there. Officer Fackrell thus lacked a sufficient basis to conclude that Strieff was a short-term visitor who may have been consummating a drug transaction. Second, because he lacked confirmation that Strieff was a short-term visitor, Officer Fackrell should have asked Strieff whether he would speak with him, instead of demanding that Strieff do so. Officer Fackrell's stated purpose was to "find out what was going on [in] the house." App. 17.Nothing prevented him from approaching Strieff simply to ask. See Florida v. Bostick, 501 U. S. 429, 434 (1991) ("[A] seizure does not occur simply because a police officer approaches an individual and asks a few questions"). But these errors in judgment hardly rise to a purposeful or flagrant violation of Strieff 's Fourth Amendment rights.

This case is another step in the incremental progress toward the goal of limiting the drastic remedy of exclusion of evidence to cases where the Fourth Amendment violation was clear at the time of the officer's action.  That is a desirable result, and we at CJLF will continue working toward that goal.  Those who are primarily concerned with the issues raised in the dissents should direct their efforts toward making other remedies more effective.  Exclusion of valid evidence is slowly but steadily on the way out.