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,
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?