How Far Does Police "Good Faith" Go? The Supreme Court Creates Another Exception to The Exclusionary Rule
By SHERRY F. COLB
|Wednesday, Jan. 21, 2009|
Last week, the U.S. Supreme Court decided the case of United States v. Herring Herring addressed the question whether police officers may rely in "good faith" on erroneous information (inaccurately alleging the existence of an outstanding arrest warrant against a suspect) without compromising the resulting evidence, when the source of the error is another law enforcement agency.
The Court held that the answer is yes, provided the error is not sufficiently deliberate and culpable to justify suppression of the evidence. In this column, I will examine the question and conclude that the Court erred in further extending the "good faith" exception to the exclusionary rule of evidence.
What "Good Faith" Means in Fourth Amendment Law
The first thing to note about good faith in the Fourth Amendment context is that, despite the connotations of the phrase in everyday life, it has nothing to do with a police officer's subjective motives or intentions. The Supreme Court has instead used the phrase to refer to the objective reasonableness of a police officer's belief in the validity or existence of a warrant that is, in fact, invalid or nonexistent.
The second important fact about the "good faith exception" is that it is not an exception to the Fourth Amendment requirement that all searches and seizures be "reasonable." It is, instead, an exception to the rule that says that when police violate the Fourth Amendment, the resulting evidence is inadmissible in a criminal prosecution of the victim of that unlawful search or seizure. Accordingly, the only time a "good faith" exception becomes necessary is when police have already violated the Fourth Amendment but a prosecutor still hopes to offer the evidence resulting from that violation in criminal court against the victim of the violation.
These two points are significant because they demonstrate why "good faith" is a necessary consideration only when police rely on a warrant (or similar independent legal authorization) as a basis for a search or seizure. When police instead perform a legitimately warrantless search or seizure, then an officer's reasonable belief in facts amounting to probable cause is sufficient to satisfy the requirements of the Fourth Amendment. In other words, a police officer need not be correct in believing the facts underlying probable cause – for example, that a suspect is carrying contraband in his car. Instead, she need only have a basis for that factual belief that is sufficient to satisfy the "probable cause" standard. To take another example, if a police officer believes the eyewitness account of an alleged robbery victim who identifies his assailant, then the officer has probable cause to arrest the alleged assailant (and has satisfied the Fourth Amendment) even if it is later discovered that the robbery victim invented the entire story.
"Probable cause" signifies a level of certainty that falls far short of "proof beyond a reasonable doubt" (the standard of proof in a criminal case) and will therefore frequently prove erroneous. A police officer might therefore search your car or arrest you, though you turn out not to have done anything wrong, and that does not mean police have violated your Fourth Amendment rights. The key question – assuming that no warrant is required or relied on in the particular case – is whether the officer had good reason to believe that your car contained evidence of crime or that you had committed a crime for which arrest was appropriate.
If the officer performing a search is relying on his own knowledge of facts, rather than on a warrant, it would be strange to say that the officer had a "good faith" (that is, objectively reasonable) but erroneous belief that a search or seizure was objectively reasonable. A police officer can be reasonably mistaken, but it is hard to say that a police officer reasonably made an unreasonable mistake.
The equation changes, however, when a warrant is required. Unlike reliance on facts known to a police officer – which may turn out to be inaccurate, though they appeared true at the relevant time – reliance on a warrant or other official authorization can be reasonable and yet violate the Fourth Amendment if the official authorization was absent.
That is because, unlike the facts that underlie a search or seizure, a warrant or other official authorization functions as a means of controlling the police through independent decision-makers (such a judicial magistrate or a legislative body). Rather than later reviewing whether the officer drew reasonable inferences about a suspect's suspiciousness from the facts, for example, a warrant requirement interposes the judgment of a neutral magistrate who reviews the facts before the police officer may act. The law thus does not simply require that the officer reasonably believe that she has a warrant; it requires that there actually be a warrant, so that someone who is not in what the Court has described as the "often competitive enterprise of ferreting out crime" actually has reviewed the basis for the search or seizure and deemed it constitutionally adequate.
The "Good Faith" Exception
When police violate the Fourth Amendment right against unreasonable searches and seizures, with or without a warrant, the ordinary consequence is that a judge suppresses any evidence unearthed as a result of the violation. This means that the jury will not be able to consider tainted evidence in assessing the guilt or innocence of the defendant who experienced the Fourth Amendment violation.
Evidence resulting from unconstitutional conduct is not, however, always suppressed. The Supreme Court has indicated that unlike the Fourth Amendment itself, the exclusionary rule is not constitutionally-compelled but is merely an instrument for motivating conduct in conformity with the Fourth Amendment. Accordingly, the Court has applied the exclusionary rule selectively to those contexts in which its deterrent value will be greatest.
One exception to the exclusionary rule first emerged in United States v. Leon. The Supreme Court there held that if a police officer relied in objective "good faith" on a warrant that turned out to be invalid, then the evidence obtained would be admissible at a subsequent criminal trial – despite the presumed invalidity of the warrant. The Court explained that because the exclusionary rule serves to deter police misconduct (by suppressing the fruits of that misconduct), it would make little sense to suppress evidence resulting from a magistrate's error in issuing a warrant. The magistrate is specifically not an arm of law enforcement, and is therefore: (1) not the target of the exclusionary rule's deterrent objective; (2) not likely to try to subvert the Fourth Amendment (and therefore not in need of deterrence); and (3) not responsive to the suppression of evidence, given the magistrate's lack of a stake in the outcome of an eventual criminal prosecution.
In Arizona v. Evans, the Court extended the good faith exception to a case in which there actually was no warrant, but the Office of the Clerk of Court had made an error in its record-keeping and reported that such a warrant for the suspect's arrest was outstanding. A police officer, relying on the erroneous record, carried out an arrest, and the issue of suppression arose. The Court held that despite the absence of a warrant, the evidence found as a result of the arrest would not be excluded at the suspect's criminal trial. Because the police officer had relied in objective good faith on the erroneous record, the Court held, it would be inappropriate to apply the exclusionary rule.
The Court reasoned that the party that had erred in this case, the Clerk of Court, was part of the judiciary and therefore – like the magistrate – not subject to the temptation to subvert the Fourth Amendment. Further, it noted that the exclusionary rule was never meant to regulate courts' conduct. And finally, it pointed out that court employees would have no stake in the outcome of criminal trials and therefore would not be deterred by the suppression of evidence.
The exclusionary rule, in other words, is meant only for – and effective only against – the police. If police are acting in reasonable reliance on independent, non-police, government actors, the Court determined, suppression would impose a high cost without providing much of a countervailing benefit.
The Court's Inquiry in Herring: Was the Error Deliberate and Culpable?
In Herring, Officer Mark Anderson, the policeman who arrested the suspect, did not have a warrant. He also did not have probable cause. According to Justice Ginsburg's dissent, moreover, Anderson had a history with the petitioner, Bennie Dean Herring, who had previously reported to the District Attorney a suspicion that the officer had been involved in the killing of a local teenager.
When Anderson saw Herring at the Coffee County Sheriff's Department (where Herring had gone to retrieve something from his impounded truck), Anderson asked the county's warrant clerk whether there were any outstanding warrants for Herring's arrest. Learning that there were none, Anderson then asked the clerk to inquire whether there were any outstanding arrest warrants against Herring in the neighboring Dale County. The Dale County Sheriff's computer database indicated – erroneously, as it turned out – that there was indeed an outstanding warrant for Herring's arrest, so the officer quickly arrested Herring and searched him incident to that arrest (in the process finding drugs and a pistol).
The Court could not in this case say – as it had said in earlier good faith cases – that someone other than the police had made the relevant error. A Sheriff's Office had kept the erroneous records, which had apparently been inaccurate as to the petitioner for five months. Police are the parties at whom the exclusionary rule is directed as a deterrent. Police are the parties likely to be zealous to a fault in pursuing criminals and evidence of crimes. And police have a stake in the outcomes of criminal trials and therefore are responsive to the exclusionary rule.
As Justice Breyer argued in his dissent, police record-keeping errors are thus meaningfully different from the other errors to which the good faith exception to the exclusionary rule had previously applied.
Chief Justice Roberts on behalf of a 5-4 majority of the Court has thus signaled an increased hostility to the exclusionary rule in announcing the good faith exception in this context. In so doing, he emphasized how costly it is to suppress evidence of crime (because it leads to the release of guilty people) and suggested that therefore, even if a negligent police error leads to an erroneous decision to arrest, the exclusionary rule is not appropriate unless the police have acted in a manner that is sufficiently "deliberate" to be subject to meaningful deterrence and sufficiently "culpable" to be worth the cost of exclusion. An apparently isolated, negligent error in book-keeping, even by a police agency, did not satisfy this test.
Fourth Amendment Rights in Jeopardy
One problem with requiring greater deliberateness or culpability to trigger the exclusionary rule, as the Court did in Herring, is that the built-in incentive of a police department is to err on the side of having too many rather than too few arrest warrants recorded, even after one is recalled. It takes work to update computer records to reflect that a suspect is no longer "fair game," and it is hard to imagine that a resource-conscious police department will voluntarily choose to invest its energy in such updating if no negative consequences follow from failing to do so. Furthermore, few bureaucratic errors will be "culpable" enough to be "worth" the cost of exclusion, if viewed as isolated cases.
Without exclusion, however, computer errors – in an age in which the computer dominates other sources of ready information – can lead to substantial numbers of arrests, detentions, searches, and other humiliations of utterly innocent people, few of whom will have the time or resources to bring a legal action. For them, prevention, rather than compensation, is crucial, and prevention is accomplished by predictable and consistent suppression.
In the Court's rhetoric about the innocence of the police and the costliness of exclusion, it is easy to lose sight of the fact that the police are not facing disproportionate criminal sanctions for relatively minor offenses. Unlike the imprisonment of felons, the goal of exclusion is not to "punish" the police for culpable misconduct. It is instead to attach a systematic cost to law enforcement's failure to honor the requirements of the Fourth Amendment, a constitutional provision that in the end demands that police avoid searches and seizures of targets likely to be innocent.
With increasing (and increasingly diverse) "exceptions" to exclusion and the Roberts Court's attitude that "exclusion 'has always been our last resort, not our first impulse,'" however, there will be little "cost" attached to violating innocent people's privacy, property, and liberty rights. And – like "easy money" – free rein to search and seize is bound to attract many takers. That is truly what is at stake when the Court slowly but surely guts the Fourth Amendment exclusionary rule.