§ 20.06 WHEN THE EXCLUSIONARY RULE DOES NOT APPLY: THE POLICE CULPABILITY FACTOR

• Jurisdiction: United States

§ 20.06. When the Exclusionary Rule Does Not Apply: The Police Culpability Factor

[A] Historical Overview

In Mapp v. Ohio,¹⁴⁸ the police egregiously violated the Fourth Amendment, but the rule of evidentiary exclusion announced in the case was not limited to egregious police misconduct: the rule applied to all violations of the Fourth Amendment, including inadvertent ones. However, over time, the Supreme Court grew increasingly hostile to the exclusionary rule, and the process of narrowing the rule—by limiting its applicability to cases in which police-culpability could be proven—began.

The police-culpability approach seriously began with United States v. Leon,¹⁴⁹ a case in which the police obtained a warrant later determined to be invalid. Leon is considered in the next subsection. Subsequently, the Supreme Court extended the culpability approach to warrantless searches and, while doing so, narrowed the scope of the exclusionary rule even further. This latter change, described in subsection [C], accelerated after John Roberts (who had previously worked on a memorandum for the Ronald Reagan White House "to amend or abolish the exclusionary rule"¹⁵⁰) joined the Court as Chief Justice.

[B] The Culpability Approach in its Infancy: United States v. Leon¹⁵¹

[1] The "Good Faith" Rule

In United States v. Leon,¹⁵² police officers executed a facially valid search warrant. Later, a district court held that, "while recognizing that the case was a close one," the warrant was invalid because it was not supported by probable cause.

In Massachusetts v. Sheppard,¹⁵³ a companion case to Leon, the police seized evidence related to a homicide pursuant to a warrant later declared invalid because of a technical error committed by the issuing magistrate. The error was that the magistrate signed a warrant form normally used to conduct searches for illegal drugs, but he forgot to cross out the language in the form that authorized the police to search for controlled substances. In turn, the executing officer did not look at the warrant after the magistrate signed it because he was assured by the judge that the offending language had been excised. As a consequence of the judge's error, the warrant did not satisfy the particularity requirement of the Fourth Amendment.

Under the exclusionary rule announced in Mapp, the evidence obtained in these cases would have been inadmissible at the defendants' criminal trials (except for impeachment purposes) because the warrants supporting the searches were invalid. Nonetheless, the Supreme Court permitted the evidence to be introduced at the trials.

According to Leon, as detailed below, evidence obtained pursuant to a search warrant later declared to be invalid may be introduced at a defendant's criminal trial in the prosecutor's case-in-chief, if a reasonably well-trained officer would have believed that the warrant was valid.

[2] "Good Faith": What Does This Mean?

Notwithstanding the "good faith" label often attached to the Leon rule, the test is not a subjective one: evidence is not admissible merely on a finding that the officer involved in the search honestly believed that the warrant he was executing was valid. Leon states that the inquiry into "good faith" is limited "to the objectively ascertainable question whether a reasonably well trained officer would have known the search was illegal despite the magistrate's authorization." The test, in short, is an objective one; if the officers in Leon (or companion case, Sheppard) had acted unreasonably—negligently—in relying on the warrant issued by the magistrate, the evidence would seemingly have been inadmissible.¹⁵⁴

Notice an odd possibility: Because the test is objective, does this mean that evidence obtained by a bad-faith officer—for example, one who believes the warrant he is executing is invalid, but he doesn't care—is admissible, as long as a "reasonably well trained officer" would have believed that the warrant was good? Professor LaFave has suggested that this need not be the case, based on the following example: Officer takes his warrant affidavit to Prosecutor for a judgment as to its sufficiency. Prosecutor informs Officer in no uncertain terms that the affidavit is insufficient to show probable cause. Officer ignores this appraisal and goes to a magistrate who (mistakenly) issues a warrant. According to LaFave, the likely state of mind of the "reasonably well trained officer" would take into account Officer's awareness that Prosecutor, a trained lawyer, believed there was insufficient basis for a warrant.¹⁵⁵ This conclusion follows from language in Leon that, in determining whether an officer's reliance on a warrant was objectively reasonable, "all of the circumstances—including whether the warrant application had previously been rejected by a different magistrate" — or, it may be assumed here, by a prosecutor—"maybe considered."

[3] When "Good Faith" Does Not Exist

[a] In General

Leon noted four situations in which a reasonably well-trained officer would not rely on a warrant subsequently declared defective. First, the non-suppression rule of Leon would not apply if the magistrate who issued the warrant relied on information supplied by a police officer who knew that statements in the document were false or who recklessly disregarded the truth, in violation of the principles of Franks v. Delaware.¹⁵⁶

Second, evidence is properly excluded if, in the language of Leon, the "issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York."¹⁵⁷ In other words, Leon does not apply if the magistrate's behavior was so lacking in neutrality that a reasonable officer would have realized that the magistrate was not functioning in an impartial, judicial manner. Although Leon specified only the circumstances of Lo-Ji Sales, the exclusionary rule ought to apply to any situation in which the magistrate acts as an obvious rubber stamp for the police, for example, if he signs the warrant without reading it while in the presence of the officer who later claims reliance.¹⁵⁸

Third, an officer may not rely "on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." The Court apparently means that an officer may not rely on a warrant issued by a magistrate based on a wholly conclusory — "bare bones"—affidavit, in gross violation of the totality-of-the-circumstances test of probable cause enunciated in Illinois v. Gates.¹⁵⁹ That is, an officer may ordinarily assume that a magistrate knows what he is doing when he makes a probable cause finding. Even if it turns out later, based on a higher court ruling, that the magistrate's probable cause judgment was faulty, the officer's reliance on the magistrate will protect the evidence from exclusion. Only if the magistrate's finding of probable cause is grossly off the mark will this exception to Leon apply and the evidence be excluded.

The fourth exception to Leon's "good faith" non-suppression rule applies when an officer relies on a warrant "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." For example, an officer may not reasonably rely on a warrant authorizing him to search "an apartment" of a multi-unit building, or to seize "all stolen goods" in a particularly described house. In these cases, the warrant is obviously deficient because it fails to satisfy the particularity requirement of the Fourth Amendment.¹⁶⁰

[b] Improperly Executed Warrants

The Court in Leon warned in a footnote that the reasoning of the case "assumes, of course, that the officers properly executed the warrant and searched only those places and for those objects that it was reasonable to believe were covered by the warrant." In other words, the Leon "good faith" rule should not protect unreasonably executed, albeit facially valid, warrants.

For example, suppose that O, an officer, executes a warrant authorizing him to search D's bedroom for clothing related to a rape. If O, conducting the bedroom search, inspects files and seizes incriminating papers found in them, this latter search should not be protected by Leon, as it was not reasonable for O to rely on a warrant, which authorizes him only to search for clothing, to look through written materials.

[4] Why the Exception?: The Reasoning of Leon

Much of the Court's opinion in Leon stressed the costs of the exclusionary rule, and thus reads like a well-reasoned, but not out-of-the-ordinary, general criticism of the suppression rule. These aspects of Leon could be used to support the outright abolition of the exclusionary rule. Other features of Leon were directed to the narrower question before it, namely, whether the deterrent benefits of the exclusionary rule outweigh its costs in the context of an officer's reasonable reliance on a warrant that has been authorized by a neutral and detached magistrate.

Justice White, writing for the Court, provided a threefold justification for limiting the scope of the suppression rule to circumstances in which a warrant has been secured, albeit later determined to be defective:

First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion. [f] Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.¹⁶¹

On the third—"and most important"—point, the Court reasoned that "[m]any of the factors that indicate that the exclusionary rule cannot provide an...