Moving targets: placing the good faith doctrine in the context of fragmented policing.

• Author: Aviram, Hadar

Introduction I. Herring in Context: Police Accountability in a Reality of Fragmentation A. Herring's Facts: Agency and Reliance B. Herring's Predecessors: The Good Faith Doctrine in Leon and Evans C. Herring's Uncertainties: The Debate on Herring's Application to Illegal Predicate Searches D. Herring's Silence: Implicitly Acknowledging Fragmentation II. Moving Targets: Authority and Accountability in Policing A. Policing in America: Plural, Multilateralized, Fragmented B. Fragmentation and the Problem of Accountability C. Concerns of Inefficiency and Abuse III. Untangling the Accountability Mess: Legal and Administrative Solutions A. Agent Identity's Importance to the Exclusionary Rule B. Struggling with Accountability: State Solutions for Fragmentation Problems 1. County-to-County State Warrants and the Federal Fundamental Test 2. Whose Affidavit? Curing Overbreadth C. Proposed Solution: Incorporating Agency Identity into the Good Faith Standard Conclusion INTRODUCTION

Don't say that he's hypocritical; Say, rather, that he's apolitical. "Once the rockets are up, who cares where they come down? That's not my department, "says Wernher von Braun. Tom Lehrer, The Ballad of Wehrner von Braun The debate sparked by Herring v. United States (1) is a microcosm of the quintessential debate about the scope of the Fourth Amendment's exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. (2) The Good Faith Doctrine focuses on situations in which it is clear, in hindsight, that authority was wrongly exercised. Whether courts choose to suppress evidence to deter police from committing similar mistakes in the future reveals their position on the appropriate balance between efficiency and procedural justice, a balance well illustrated in Herbert Packer's classic book The Limits of the Criminal Sanction. (3)

In the book, Packer provided two "ideal type" models of the criminal process: the Crime Control Model and the Due Process Model. (4) Crime control emphasizes an efficient criminal process through early determination of guilt by law enforcement agents. (5) The model requires substantial deference to police officers and prosecutors, the "gatekeepers" of the criminal process. (6) As a corollary, the model allows patience with their mistakes. (7) By contrast, the Due Process Model's main goal is preserving accuracy and avoiding the conviction of the innocent. (8) Under a due process paradigm, law enforcement discretion is seen as potentially biased (9) and is therefore carefully curtailed by constitutional review and procedural hurdles as a "quality control" mechanism. (10)

Packer's models have been widely critiqued over the years. (11) Among the more convincing critiques is the notion that the models do not share an epistemological basis, that the Due Process Model relates largely to doctrinal and normative mandates, while the Crime Control Model is by nature a pragmatic description of the everyday management of law enforcement. (12) Scholars today widely acknowledge that the post-Warren Court's decisions reflect a pendulum swing toward crime control. The shift is explained in four main themes. (13) First, the post-Warren Court emphasized that the ultimate mission of the criminal justice system is convicting the guilty and ensuring that the innocent go free, rather than creating bright-line rules. The Court placed more emphasis on the defendant's actual guilt--a practical application of Packer's "presumption of guilt." (14) Second, the Court shifted from relying on clear standards of action to allowing an assessment of police activities through a "totality of the circumstances" test. (15) Third, the post-Warren Court expressed more deference to police discretion, a recurring theme of acknowledging that police act in good faith under difficult conditions. (16) Finally, the Court tended to intervene less on behalf of the defendant on appeal, particularly collateral attacks before state courts. (17) Significant for this paper, these characteristics of the post-Warren Court are closely correlated with an important feature of the Crime Control Model--the increasing reliance on earlier steps in the criminal process and, in particular, broad deference to police discretion. Everyday officers exercise tremendous discretion and make on-the-spot decisions about exercising their authority (18) or refraining from doing so. (19) Courts are well aware of this feature but defer to vague standards when it comes to police discretion. Courts do not view police discretion as a "necessary evil" but as a desirable feature of professionalism. (20) There are sound reasons for the policy. No web of bright-line rules could cover all situations in which police officers find themselves, and the system has vested interest in assuring both officer resourcefulness and officer safety. (21) Additionally, broad discretion to discard potential cases early in the process is an efficient way to control expensive and time-consuming caseloads. Mistakes, however, are bound to occur in this process and the application of the exclusionary rule reflects the extent to which courts are willing to "forgive" police mistakes for the sake of efficiency. A simple reading of Herring reveals a triumph of crime control over due process. The Supreme Court expanded the good faith exception in an opinion that applies broadly on its face. Herring declares,

In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not "pay its way." In such a case, the criminal should not "go free because the constable has blundered. (22) The holding sparked a lively debate about the fate of the exclusionary rule. Some commentators described the Herring decision as a "fundamental shift in exclusionary rule analysis." (23) Others argued that Herring is not a remarkable decision because it does not settle the complicated question of suppression when the law enforcement officer herself made the mistake. (24) Both arguments have some merit because Herring's importance regarding who makes the mistake is neither clear on the face of the opinion, nor in current case law interpreting the good faith rule.

This distinction is vital for understanding Herring, and we therefore offer a new way to read the case. Relying on Herring's facts, as well as the current circuit split with regard to illegal predicate searches, and on a previous case, Arizona v. Evans, (25) this Article argues that Herring reflects a healthy dosage of real politik and particular awareness of the realities of fragmented policing. American policing involves multiple agencies with a largely local focus and a lack of strong hierarchical oversight at the state or federal level. The outcome of Herring, when limited to its facts, acknowledges the complexities of decisionmaking, information-sharing, and overview in a multilateralized policing structure; it takes into account the possibility that vague responsibilities and redundancies will lead to mistakes and acknowledges that multilateralism significantly decreases the expectations of accountability and the effects of deterrent court rulings. When read in this fashion, Herring reflects a deep understanding of the organizational dimension of policing. Thus, Herring can be analogized to the Warren Court's realistic decision in Terry v. Ohio, (26) in which realities from the field entered case law in a more explicitly drafted opinion.

The Court's realism, however, has a dark side. Courts must be careful that realism's shortcomings do not outweigh its advantages. (27) On one hand, Herring contributes to a richer exclusionary rule discourse as a decision that fosters realistic understandings of accountability structures. Realism is more helpful for shaping effective deterrence structures than the abstract assumption that Supreme Court decisions deter law enforcement agencies. On the other hand, Herring also implies complacency with flawed accountability structures and allows the government to shirk responsibility for its mistakes by hiding behind multiple agencies and blurring the path of accountability. Herring allows a potential for future abuse by discouraging efficient collaboration between agencies and incentivizing redundancies and inefficiency. Part I of the Article presents our interpretation of Herring as a case hinging upon the question "who made the mistake?" as the decisive element in establishing good faith. We rely on the actual holding of Herring in light of its facts, on the Court's previous decision in Evans, and on the current circuit split with regard to illegal predicate searches to conclude that a narrow and reasonable reading of the Herring doctrine is the appropriate reading. Part II expands upon the realities of fragmented policing that explain the Herring decision. This Article presents findings from the fields of public policy, criminology, and geography to support the assertion that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Subsequently, Part II discusses problematic implications, detailing potential abuses and disincentives of not holding one police agency accountable for the mistakes of another. Finally, the segment argues that a "moving target" government party to the criminal process is fundamentally unfair to defendants without proper safeguards. Part III proceeds to discuss the legal and administrative paths to deal with the problem of fragmentation and accountability, with suggestions for collaboration and overview in the administrative context. The section then shifts to the legal arena and demonstrates how...