Good-faith Exception to the Exclusionary Rule: the Fourth Amendment Is Not a Technicality
| Publication year | 1982 |
| Pages | 704 |
1982, March, Pg. 704. Good-Faith Exception to the Exclusionary Rule: The Fourth Amendment is Not a Technicality
Just as hard cases may make bad law, so do hard times sometimes make for bad legislation. C.R.S. 1973, § 16-3-308 (as amended, 1981), the so-called "goodfaith" exception to the exclusionary rule is a good example of this phenomenon.(fn1) Crime and punishment are popular topics in the Colorado legislature now, so it is not surprising that enterprising groups of legislators have introduced laws which ride the coattails of the controversy right through the statehouse and into the statute books.
This column takes the opposing view of the February column and attacks the "good-faith" exception as a serious undermining of the protections afforded by the exclusionary rule.
In this author's opinion, the good-faith exception statute is an attempt by the legislature to cut back on the basic protections provided to the citizens of this state by the federal and state constitutions.(fn2) For many years, a lot of inflammatory rhetoric has alleged that criminals roam the streets because of constitutional technicalities which set them free. However, not only are these concerns unsupported by empirical data, but responses such as this statute will do nothing to reduce the crime rate and may only serve to create confusion both on the streets and in the courts. Such apparently simple solutions to crime not only pose constitutional problems, but also offer false promise.
Critics of the exclusionary rule can always offer up one or two horror stories in which important evidence in a spectacular criminal case has been suppressed due to an illegal search or arrest. However, at least one statistical study has found that the exclusionary rule has a minimal impact on the outcome of criminal cases. In 1970, the General Accounting Office of the U.S. Government 'studied some 2,804 cases from 28 U.S. Attorneys' offices around the country, and found that evidence was excluded on a Fourth Amendment basis in 1.3 percent of these cases. Of these cases in which evidence was suppressed, virtually none were dismissed because of these problems (only eleven cases out of a total of 2,804 were dropped).(fn3)
Other studies have reached the similar conclusion that the exclusionary rule has had "little impact on the overall flow of criminal cases after arrest."(fn4) In view of these data, it is difficult to understand the hysteria which the exclusionary rule seems to generate among law and order proponents. It is apparent that the public outcry over the existence of this rule is simply not founded in reality.
The good-faith exception to the exclusionary rule also lacks legal and constitutional support. The statute attempts to void the exclusionary rule in two situations: when a police officer either commits a "good-faith mistake" or a "technical violation" which leads to the seizure of evidence. Since these exceptions to the rule are not found in either the state or federal constitutions, these attempts to define such exceptions may only serve to spawn confusion in the courts and official misconduct on the streets and in our homes.
The statute defines a "good-faith mistake" as "a reasonable judgmental...
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