Appellate review and the exclusionary rule.

AuthorBray, Zack
PositionCase Note

United States v. Koerth, 312 F.3d 862 (7th Cir. 2002), cert. denied, 123 S. Ct. 1947 (2003).

Today, application of the exclusionary rule to evidence obtained in reliance on a potentially invalid search warrant is governed by the Supreme Court's holding in United States v. Leon. (1) Leon instructs courts to admit evidence obtained on the basis of a potentially invalid search warrant, so long as the executing law enforcement officers "'acted in good faith'" and "in objectively reasonable reliance on ... [the] warrant." (2) According to Leon, conduct of the judge or magistrate who issued the warrant cannot provide grounds for suppression of evidence unless the defendant can show that the issuing judge or magistrate "wholly abandoned his judicial role." (3)

The scope and application of the exclusionary rule have always bred disagreement. (4) For some, the rule is an unnecessary impediment that allows guilty criminals to escape conviction on procedural technicalities. For others, it is an indispensable substantive component of the Fourth Amendment's protections against unnecessary search and seizure. Set against the backdrop of this historic conflict, Leon can be seen as a great achievement, one that has freed courts from "a difficult dilemma." (5) Yet nearly twenty years later, Leon remains an uneasy compromise--and a source of enduring controversy. (6)

Reforming appellate review of the good faith exception to the exclusionary rule along the lines suggested in United States v. Koerth (7) would eliminate a significant problem: the failure of post-Leon jurisprudence to reach underlying probable cause issues in exclusionary rule cases. Part I of this Comment describes this problem and discusses the nature of the Koerth reform. Part II explains why Koerth's "substantial basis" test is preferable to current practice. Part III responds to possible criticisms of the Koerth approach, including the objection that Koerth is inconsistent with Leon.

I

Today, appellate courts sometimes decline to rule on the underlying issue of probable cause when they review cases that revolve around the application of the exclusionary rule. (8) At times, these cases involve difficult or borderline probable cause determinations, which appellate courts simply duck by invoking Leon's good faith standard for the conduct of law enforcement officers. (9) Contrary to some predictions, (10) these shortcuts have not eroded Fourth Amendment protections, (11) but they do represent significant abdications of appellate responsibility. At times, the refusal to rule on the underlying probable cause issues in such cases even creates tension with the guiding principles for appellate review of the exclusionary rule set forth by Leon itself. (12)

When there is a genuine dispute about whether law enforcement officers could have reasonably relied in good faith upon the judge's decision to issue a search warrant, Koerth provides a clear outline for orderly appellate review of exclusionary rule cases. Koerth's "substantial basis" test requires appellate courts to review probable cause issues before turning to questions about the good faith reliance of law enforcement officers on the search warrant. Koerth charges appellate courts to continue to accord deference to the warrant-issuing judge's initial determination of probable cause, so long as there is a "substantial basis" in the factual record to support the issuing judge's decision. (13) If an appellate court finds that this substantial basis was present, "then it follows that the officer's actions were reasonable," and the evidence uncovered in the challenged search should be admitted. (14)

If the appellate court finds that a substantial basis for the issuing judge's probable cause determination was lacking, Koerth directs the appellate court to turn to the issue of good faith reliance of law enforcement officers upon the search warrant. At this stage, appellate courts simply reapply the familiar Leon test and ask whether law enforcement officers "reasonably believed" that the warrant and supporting affidavits were sufficient to sustain a finding of probable cause. (15) When law enforcement officers are found to have reasonably relied on an invalid warrant, Koerth's substantial basis test mandates admission of the evidence uncovered under Leon's good faith exception to the exclusionary rule.

Koerth functions as a simple extension of Leon's central holding: Appellate courts should continue to admit evidence unless the defendant can show both that the warrant-issuing magistrate wholly abandoned the proper judicial role and that the reliance of law enforcement officers upon the defective search warrant was not objectively reasonable. (16) Crucially, by requiring appellate courts to resolve the issue of probable cause before addressing the question of good faith reliance, Koerth forces appellate courts to establish guiding principles and factual precedents for future action by judges and magistrates who review and issue search warrants. Koerth departs from Leon only in imposing a single additional constraint upon appellate courts: It requires them to address the underlying presence or absence of probable cause in the preliminary substantial basis step before turning to the paramount Leon issue of objectively reasonable law enforcement reliance. Widespread implementation of Koerth's substantial basis test would allow appellate courts...

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