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Court Finds New Exception To Exclusionary Rule

[ 31 ] June 16, 2011 |

Since 1961, the Supreme Court has held that evidence illegally obtained by states is not admissible in court.  Beginning with the Rehnquist Court, however, the Curt has been carving out various exceptions to the rule.   The most important and problematic of these exceptions is the “good faith” exception, which holds that evidence should be admissible if police officers obtained it in good faith, but the search was illegal because of errors by other actors.   The problem is that there’s no clear reason why the incentives of the exclusionary rule should apply only to police officers, as opposed to all agents of the state.

Today, the Court has found yet another exception.   The police conducted a search that was ruled to be a violation of the 4th Amendment, but was legal at the time under an 11th Circuit precedent.   In an opinion by Alito, the Court held that the good faith exception prevents the rule in this case from being applied retroactively.   The problem, as Breyer’s dissent notes, is that (in an increasing Roberts Court tradition) this leaves someone whose rights have been violated without a remedy.    Ominously, this was a 7-2 decision, with neither of Obama’s appointments joining Breyer and Ginsburg in dissent.

Comments (31)

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  1. Joe says:

    “ruled to be a violation of the 4th Amendment, but was legal at the time under an 11th Circuit precedent”

    Sounds pretty narrow; Sotomayor concurred separately to suggest it was narrower than the dissent suggested.

    • Joe says:

      In fact, Sotomayor (unlike Kagan) didn’t join the opinion itself. The problem with the opinion is really its anti-exclusionary rule rhetoric. Sotomayor avoided that and left open an area of cases where the exclusionary rule could apply if current precedent wasn’t as clear as was said to be the case here. The “Obama’s justices will help bury the rule” meme of some is exaggerated.

  2. mpowell says:

    This is actually a lot more reasonable than the general case of the good faith exception. And in my view, this is quite consistent with the ideals of the exclusionary principle to begin with. Debate on the exclusionary rule has gotten exceedingly muddled because even constitutional scholars like Breyer cannot clearly express how it is intended to function or its principle of operation. We do not have the exclusionary rule for the purpose of letting guilty parts go free because they were subject to an illegal search. That would be patently absurd. There is no constitutional right to avoid punishment for murder because the police conducted an illegal search. We have the exclusionary rule because it is the only available means for the federal courts to force/encourage local government officials to respect the 4th amendment. But the vast majority of this benefit comes from the many other cases (many of them involving completely innocent parties) where the police do not attempt an illegal search because it serves them no purpose to do so. This is how the exclusionary principle protects the 4th amendment.

    Civil remedies would be the other option, but I think that would not work as well for a variety of reasons (though I am starting to think they should be applied in the case of modern SWAT team raids where there is frequently substantial material damage to the victims and their belongings). Aside from the SWAT team raid problem, I think the exclusionary principle as it is currently applied is pretty effective at limiting the amount of illegal searches conducted (and how grossly illegal they might be).

    • Scott Lemieux says:

      I do agree with this; it’s not nearly as bad as Leon.

      • mpowell says:

        Right, the problem with the general ‘good faith exception’ is that unlike this case it turns the principle of the exclusionary principle right on its head. The only distinguishing factor is that you have, effectively, non-police government actors violating the 4th amendment. That’s only slightly less worse, in my opinion.

        In this case, you have actual case law to justify a different interpretation of the rules, not just what some government official can claim ex post facto was his understanding of the rules.

        • Glenn says:

          As applied in this case — where basically all courts, including the relevant circuit — had held one way, then it’s hard to argue too much with the outcome, unless you just want to take a maximalist position on the exclusionary rule. But the reasoning in Alito’s opinion, to the extent it seems to focus on culpability, could open up a pretty broad loophole, i.e., as long as the police had some good-faith basis for their interpretation, it would be excused. I think that’s why you see Sotomayor concurring separately — she is looking down the road to the case where the then-current interpretation is a little less clear, and suggesting that in those cases deterrence interests favor causing the police to adopt the more restrictive view of the 4th amendment, even if police would not actually be acting “culpably” if they followed the courts that took a more expansive view of what was reasonable under the 4th.

          • mpowell says:

            Agreed. A perfectly reasonable standard for this exception would be what was actually deemed legal by the relevant court at the time the search happened. Opening the door to anything an officer is willing to testify was his interpretation of the rules is, of course, ridiculous.

            • Glenn says:

              I actually have some doubts about even that standard. First, what is the “relevant court”? For most officers, their work is potentially going to be reviewed in both the federal courts (district and circuit) and the state courts (trial and appellate levels there as well). What happens if there is a split among those courts? Or rulings from some and silence from others? Second, what about the situation where the “relevant court” (however defined) is actually an outlier? Say, for example, the 11th Circuit precedent here was contrary to the holdings in all of the other circuits? At least from Sotomayor’s standpoint, focused on deterrence, I think she would say that applying the exclusionary rule in that case would have deterrent effect, i.e., would lead the officers to conform to the more restrictive view of the 4th Amendment even though that was not what the 11th circuit said.

              • mpowell says:

                Honestly, I would have no problems with it either way.

                To me the important thing is that there is an impartial examination about whether the search should have considered legal at the time it was conducted. I am not a lawyer, so I’m not worried about the details of how that would be resolved as long as it is the court which is doing the work in determining it. As long as it is not the subjective opinion of the officer involved which is the basis for your determination, you avoid the inherent problem in creating a generic ‘good faith’ exception.

                • You’re not a lawyer?

                  Based on your comments, I’d always thought you were a lawyer. I clicked on this comment specifically because I always found your insights into the law to be worth reading.

  3. rea says:

    Gantwent to considerable pains to show that previous broad interpretations of Belton were misguided, and not properly based on the holding in Belton. Now the Court adds, “But it was reasonable to think otherwise.” Hard to reconcile the two.

  4. soullite says:

    That pretty much puts to bed the ‘Supreme Court’ rationale for why we must vote for dems. I guess Obama has been good for something after-all.

    • MPAVictoria says:

      Aren’t you too poor to really care about this issue?

    • dave3544 says:

      I will second MPAV. You made it quite clear just a week ago that, as a poor person, you didn’t have time for any malarkey that did not involve fixing the economy. Surely, you cannot possibly concerned in any way about the 4th Amendment or the Supreme Court, what with the high rate of unemployment out there.

    • David Hunt says:

      The replies above this one imply that many some people don’t think that you’re arguing in good faith, but I’m going to engage your point directly.

      No. This does not remotely put the “Supreme Court” argument of voting Democratic to bed. Roberts and Alito are prime examples of why your argument falls apart. The idea that Sotomayor and Kagan are indistinguishable from Roberts and Alito is ridiculous. I’ll also note that you seem to think that a single instance a Justice voting against what a highly superficial reading of the issues would suggest is the Liberal position means that they’re no different from a conservative Justice. This is obviously not true.

      • richard says:

        Plus look at the other decision made today regarding Miranda where the Obama appointees joined with others in a decision lambasted by Scalia, Thomas, Alito and Roberts. But of course that fact would get in the way of your “Obama is the same as the Republicans” mantra.

      • Hogan says:

        The replies above this one imply that many some people don’t think that you’re arguing in good faith,

        Not that so much as implying that soullite isn’t arguing at all, just indulging a frequently recurring verbal tic.

  5. shah8 says:

    Thanks to the good people here at LGM, I’ve bought and started to read Migdal’s Strong Societies and Weak States. Judging from the first three chapters I’ve read–starting on the fourth, it’s hard to see how the 4th Amendment isn’t a critical leverage point (and direct access to the proles) that the center has over local power elements, and that weakening this leverage is a bad, bad, idea if the DC expects to continue its access to mobilized people and easy taxing efforts.

  6. Glenn says:

    I find it somewhat interesting that the Court repeatedly refers to the 11th Circuit precedent as “binding” on the police officers. 11th Circuit precedent is “binding” on the federal district courts of the 11th Circuit; and that’s it. It is not, for example, binding on the courts of Alabama, where these police officers worked, and if those courts had previously ruled differently from the 11th Circuit, then what? Or what if every other circuit court had ruled differently, and the 11th Circuit was an outlier? I think the Court has opened itself up to a lot of followup interpretation on this issue (much like they did with qualified immunity).

    • Holden Pattern says:

      I’m confused by this position.

      If a circuit court makes a ruling on a substantive constitutional matter that flows down to the states within its circuit (i.e., federal search and seizure law sets a floor below which the states are not allowed to drop), why is that not binding on the states within the circuit?

      As a side note, one of the major reasons that SCOTUS will take cases is to resolve inter-circuit differences on the same law. No reason to do that, really, if the law isn’t binding on anyone except the immediate litigants and the relevant district courts.

      • Glenn says:

        Yes, federal constitutional search & seizure law sets the floor below which states may not drop. But state courts are equally competent interpreters and expositors as to what that law is as the federal courts are — except, of course, for the Supreme Court, which is the only finally binding interpreter of that law (and can bind both state courts and federal circuit courts). The state courts in a circuit are in no way bound to follow the circuit court’s interpretation of federal law — although, as a practical matter, the states do usually give it some deference.

      • matth says:

        In formal terms, federal appellate court decisions are not binding precedent on state courts. State courts are in the same position relative to a federal court of appeal as lower federal courts in a different appellate circuit are: the appeals courts’ decisions may be persuasive authority, but they’re not binding.

        In a suit for damages based on a Fourth Amendment violation, though, the plaintiff will be able to chose to sue in federal court. A lower federal court in a given state is bound by the applicable circuit court’s decisions on matters of federal law.

        I don’t know what weight circuit court decisions are given in the qualified immunity analysis or in determining what law is clearly established for habeas purposes.

      • Holden Pattern says:

        Useful. Thanks matth & Glenn.

  7. shah8 says:

    Man, I should have read mpowell’s comment first. Feel like such a n00b!!

  8. Joe says:

    Meanwhile, the Supreme Court protected the right of children being interrogated by the police. 5-4, Sotomayor wrote the opinion, assigned by Kennedy.

    http://www.law.cornell.edu/supct/html/9-11121.ZS.html

    • Whoa! How did this ever reach the SCOTUS?

      How were those statements not tossed by the trial judge, or at least, the first appellate court?

      I can’t think of a more black-and-white violation of Miranda than a cop taking a 13-year-old into a conference room and interrogating him without first telling him he can leave, or call a lawyer, or call his family.

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