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Evading the Good Faith Exception to the Exclusionary Rule

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When Sri Srinivasan was nominated to the U.S. Court of Appeals for the D.C. Circuit, people fell all over each other to proclaim how smart he is and how well qualified he is.  But smarts are not enough.  If a lower court judge uses his smarts to evade Supreme Court precedent, he can do a lot of damage.  For instance, he might set a criminal free for a reason which has nothing to do with the reliability of the evidence or the justice of the case.

Orin Kerr at VC has this post on United States v. Griffin, decided by the D.C. Circuit on Friday.  Griffin was suspected of being the getaway car driver in a gang murder.  The police applied for a search warrant and provided the magistrate with the reasons they suspected him.  In asking to seize electronic devices found in the home, they merely relied on the common facts that "gang/crew members involved in criminal activity maintain regular contact with each other ... and they often stay advised and share intelligence about their activities through cell phones and other electronic communication devices ...."  The warrant authorized seizure of "all electronic devices."

Orin is interested in the substantive Fourth Amendment aspects and particularly computer law, and he discusses at some length the complexity of the overbreadth issue.  From the very fact that the issue is difficult enough to interest a law professor and have him declare this to be "an important computer search case" one ought to suspect that the invalidity of the warrant was not so clear as to disentitle the prosecution from relying on the good-faith exception of United States v. Leon.  One would be correct.
Judge Janice Brown, never one to mince words, dissents.  Here are the first and last paragraphs.

Today the Court's opinion attempts to write the good faith exception out of our case law. Nothing in the record suggests the officers involved in this case were doing anything other than attempting to solve an unsolved murder while scrupulously observing the letter of the law. Yet, today's opinion impugns their motives by declaring their reliance upon a search warrant approved by a disinterested magistrate to be "entirely unreasonable." It also misconstrues the very purpose of the exclusionary rule and the point of the good faith exception by applying the former and rejecting the latter in a way that contradicts precedent from both the Supreme Court and this Court. Because I believe the good faith exception to the exclusionary rule easily encompasses the facts of this case, I respectfully dissent.
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And that is perhaps the most troubling part of this case at the end of the day. There is no doubt that Griffith is guilty of the crime for which he has been convicted. By suppressing the gun Griffith unlawfully possessed, the Court is going to "offend[] basic concepts of the criminal justice system" by allowing a "guilty and possibly dangerous defendant[] go free." Herring, 555 U.S. at 141. And they are allowing this to happen not because the police intentionally violated the law or acted in a highly-culpable manner, but rather because the police relied upon a neutral and detached magistrate who determined probable cause existed. This result is directly contrary to the purpose of the exclusionary rule and Supreme Court precedent that reserves suppression only for the most serious police misconduct. If courts are going to impose a remedy as extreme as excluding evidence that is probative, reliable, and often determinative of a defendant's guilt, we have a duty to protect officers who are doing their best to stay within the bounds of our ever-evolving jurisprudence. We live in a society where virtually every action an officer takes is now being heavily scrutinized. Thus, the need for vindication when law enforcement officers behave in an exemplary fashion is more critical than ever. Unfortunately, the officers in this case are not going to get the vindication they deserve. Furthermore, I have no doubt this case will be used in future cases to further undermine the good faith exception until either this Court sitting en banc or the Supreme Court steps in to cure today's grievous error. Accordingly, I respectfully dissent.
Right.

Under Leon, evidence obtained with a search warrant is usually admissible notwithstanding the invalidity of the warrant.  There are a couple of exceptions.  "Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth."  That's not the case here. 

Also, "depending on the circumstances of the particular case, a warrant may be so facially deficient -- i.e., in failing to particularize the place to be searched or the things to be seized -- that the executing officers cannot reasonably presume it to be valid."  Now, a warrant is signed by a judge or magistrate who is a law school graduate and typically had a successful career as a lawyer before taking the bench.  How often does such a judicial officer sign a warrant that a police officer should know is obviously invalid?   Aren't judges supposed to have legal knowledge at a much higher level?  That is not to say the obvious deficiency exception to Leon should never apply, just almost never.

On the merits, I do think that the sweeping description of electronic devices does fall short of the requirement of the Fourth Amendment on its face:  "particularly describing the ... things to be seized."  But given how commonly sweeping language is used in warrants and upheld by courts, the invalidity is far from certain.

The search-and-seizure exclusionary rule is fundamentally illegitimate.  The Supreme Court conjured it up without a shred of basis in the text or the original understanding of the Fourth Amendment.  See CJLF's brief in Utah v. Strieff.  Lower court judges must obey the Supreme Court's exclusionary rule precedents, but they should not expand the scope of exclusion or narrow the scope of the exceptions.

Unresolved questions about the boundaries of the Fourth Amendment should be decided in civil cases.  For the question of the admissibility of evidence in a criminal case, it should be enough that the law was not clearly established to the contrary at the time the officers acted.  That is the law for search warrant cases under Leon, and the Griffin decision is clearly erroneous.  The D.C. Circuit en banc or the Supreme Court should reverse it.

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"The search-and-seizure exclusionary rule is fundamentally illegitimate. The Supreme Court conjured it up without a shred of basis in the text or the original understanding of the Fourth Amendment. See CJLF's brief in Utah v. Strieff."

The exclusionary rule represents the view that the government should be put in the place it would be had a constitutional violation not occurred. It is fair to say that is a general principle of law which informs judicial decisionmaking. Thus, my view is that the exclusionary rule is wrong, but not nearly as wrong as much of say 8th Amendment jurisprudence.

Judge Srinavasan is either twisting the law to help out a serious criminal or doesn't know the law. Either way, he is unfit for the bench.

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