New Hampshire Bar Journal
2011 Spring, Pg. 34.
New Hampshire's view of The Good Faith Exception: Anachronistic or Visionary?
New Hampshire Bar JournalVolume 52, No. 1Spring 2011New Hampshire's view of The Good Faith Exception: Anachronistic or Visionary?By Joanne P. Tetreault EldridgeOn January 14, 2009, the U.S. Supreme Court decided the case of Herring v. United States.(fn1) In a 5-4 ruling, the Court held that the exclusionary rule did not apply in an unlawful Fourth Amendment search case where the mistakes of the police resulted from isolated negligence and not systemic error or reckless disregard of constitutional requirements. Law enforcement officers in one county arrested Herring on a neighboring county's warrant which, the officers subsequently learned, had been recalled. The recall of the warrant had never been properly entered into the neighboring county's computer database.(fn2)
During the ensuing search of Herring following his arrest, officers discovered drugs and a gun. In his trial on federal charges, Herring sought to invoke the exclusionary rule, claiming his arrest was illegal because it was based on a warrant that had been recalled. The district court was not persuaded, and the Eleventh Circuit upheld the denial of Herring's suppression motion. In considering the case, the U.S. Supreme Court examined both the Fourth Amendment exclusionary rule and the good faith exception recognized by the Court in United States v. Leon(fn3) The majority concluded that the exclusionary rule should not be applied and affirmed the Eleventh Circuit's opinion.(fn4)
This opinion and its analysis, founded upon the good faith exception of Leon, may seem to have little relevance for New Hampshire practitioners. The New Hampshire Supreme Court has eschewed a general good faith exception, relying on the New Hampshire Con-stitution(fn5) and three separate bases for applying the exclusionary rule.(fn6) The purpose of this article is to examine New Hampshire's view of the good-faith exception to the exclusionary rule in light of three factors: (1) The Supreme Court's rationale in Herring, which followed a similar Supreme Court ruling in Arizona v. Evans f and the Supreme Court's stated justifications for the exclusionary rule; (2) the privacy and liberty concerns implicated by law enforcement officers' increasing reliance on information contained in computerized databases; and (3) a re-examination of New Hampshire's own exclusionary rule precedents.
APPLICATION OF THE GOOD FAITH EXCEPTION IN HERRING v. UNITED STATES
Bennie Dean Herring, a person well known to law enforcement officers in Coffee County and Dale County, Alabama, visited the Coffee County Sheriff's Department in July 2004 to remove an item from his truck in the sheriff's impound lot. A Coffee County sheriff's deputy asked for a computerized warrants check to be run on Herring in both Coffee and neighboring Dale County. Upon learning that there was an active Dale County warrant for Herring's arrest, the Coffee County deputy stopped Herring and arrested him on the warrant. During a subsequent search, the deputy found methamphetamine and a pistol. As a felon, Herring could not lawfully possess a firearm.(fn8)
About ten minutes later, the Dale County warrants clerk informed the Coffee County warrants clerk that the warrant for Herring's arrest had been recalled five months earlier. The Dale County Sheriff's Department database had failed to show that the warrant had been recalled by the court, and the clerk had only learned of the error when she attempted to confirm the warrant. By the time the mistake was discovered, the deputy had already arrested and searched Herring. At his federal trial on the drug and gun violations, Herring moved to suppress the evidence, arguing that his arrest on the recalled warrant had been illegal.(fn9)
The District Court concluded that, based on the recommendation of a magistrate judge, the arresting officer had acted in good faith in relying on the validity of the warrant and that applying the exclusionary rule in this case would not deter future police mistakes. The Eleventh Circuit agreed, concluding that the error with the warrant in the sheriff's department database was merely negligent. The Eleventh Circuit held that the benefit of applying the exclusionary rule would be marginal or nonexistent and upheld the admissibility of the evidence under the good faith exception established in United States v. Leon.(fn10)
The Supreme Court granted Herring's petition for certiorari to resolve what it called a conflict in circuit court decisions. In affirming the opinion of the Eleventh Circuit in a 5-4 vote, Chief Justice Roberts, writing for the majority, framed the issue as whether the exclusionary rule should be applied, assuming without deciding that there was a violation of the Fourth Amendment.(fn11)
"The Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'"(fn12) The Fourth Amendment itself does not contain any provision which would prevent the use of evidence obtained in violation of its dictates,(fn13) but the U.S. Supreme Court fashioned an exclusionary rule precluding the use of evidence obtained in violation of the Fourth Amendment.(fn14) This rule was later extended to the states.(fn15) The exclusionary rule is intended to protect Fourth Amendment rights by deterring future police misconduct.(fn16)
Under the Supreme Court's jurisprudence, the fact that there has been a violation of the Fourth Amendment does not lead inexorably to the application of the exclusionary rule.(fn17) The existence of the violation is a separate issue from the appropriateness of the remedy. In Herring, Chief Justice Roberts reviewed important principles which limit the exclusionary rule's application, concluding as follows: The exclusionary rule is not an individual right; it applies where it can result in meaningful future deterrence, the benefits of which must outweigh the costs; and the flagrancy of the rights violation must be considered when determining whether to apply the rule's sanction of exclusion in a particular case.(fn18)
Deterrence is most effective when the official misconduct was flagrantly or deliberately abusive.(fn19) An error arising from an isolated act of negligence by the police, as in Herring, is far from the core concerns which led to the adoption of the exclusionary rule:
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.(fn20)
The Supreme Court's decision in Herring cited a number of its precedents, including United States v. Calandra,(fn21) United States v. Leon,(fn22) Illinois v. Krull,(fn23) and Arizona v. Evans.(fn24) In Calandra, the Supreme Court considered the issue whether a grand jury witness could rely on the exclusionary rule to refuse to answer questions based on evidence obtained as a result of an illegal search and seizure. In determining that a grand jury witness does not have a right to rely on the exclusionary rule, the Court noted that the exclusionary rule does not confer an individual constitutional right upon an aggrieved party.(fn25)
Writing for a 6-3 majority in Calandra, Justice Powell concluded that extending the application of the exclusionary rule to grand jury proceedings would interfere with the investigative purpose of the grand jury in return for a speculative deterrent benefit, and grand jury questioning based on illegally obtained evidence did not itself amount to an independent constitutional violation.(fn26)
In United States v. Leon, the Supreme Court established an exception to the exclusionary rule for evidence obtained by police officers acting in good faith reliance on a facially valid search warrant which is ultimately found to be invalid. In that case, a narcotics investigator had prepared a warrant to search based on an extensive investigation triggered by information from a confidential informant. Although the warrant was reviewed by prosecutors and signed by a state judge, the warrant was ultimately found lacking in probable cause due to staleness (five months had passed since the informant had seen the drugs) and insufficient information establishing the informant's credibility. The officer had, however, relied on the warrant in good faith.(fn27)
The Court sought to strike an appropriate balance between competing goals: first, the aim of deterring official misconduct and protecting against unreasonable invasions of privacy, and second, the aim of ensuring that criminal defendants are tried using all available evidence of the truth.(fn28) Citing Calandra, the Court reaffirmed that the exclusionary rule serves as a Fourth Amendment safeguard rather than as an individual right and that its prime purpose is deterrence of future unlawful police conduct.(fn29) Justice White, writing for a 6-3 majority, stated that the exclusionary rule does not and cannot remedy the invasion to the defendant's privacy rights occasioned by an unconstitutional search.(fn30)
The Court also noted the substantial social costs of applying the exclusionary rule and cautioned that " [i]ndiscriminate application of the exclusionary rule, therefore, may well '[generate] disrespect for the law and administration of justice.'"(fn31) Application of the rule should be limited to those cases in which its remedial purpose can best be served. Accordingly, the Court held that "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in...