Evidence laundering in a post-Herring world.

• Author: Levine, Kay L.

The Supreme Court's decision in Herring v. United States authorizes police to defeat the Fourth Amendment's protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. The original constitutional taint disappears in the wash.

Courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident, rather than considering the entire course of conduct. In so doing, they make visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. This atomistic perspective, however, fails to appreciate the realities of modern policing, which depends heavily on teamwork and delegation. At the same time, the increased emphasis on police intentions and on balancing the costs and benefits of exclusion brings our courts into closer alignment with courts elsewhere in the world.

TABLE OF CONTENTS INTRODUCTION 628 I. THE GOOD FAITH EXCEPTION, THEN AND NOW 632 A. Good Faith Then 633 B. Good Faith Now 635 II. EVIDENCE LAUNDERING BY DESIGN: A STEP-BY-STEP GUIDE TO ATTENUATED POLICE MISCONDUCT 642 III. EVIDENCE OF EVIDENCE LAUNDERING: POST-HERRING CASES ADJUDICATING TWO-STEP POLICE MISCONDUCT 646 IV. EVALUATING EVIDENCE LAUNDERING 658 A. Post-Herring Case Law and the Realities of Modern Policing 658 B. Weaker Remedy, Stronger Rights? 661 C. A Comparative Assessment of Herring and Its Progeny 664 D. International Convergence in the Exclusionary Remedy 665 E. Some Implications of International Convergence on Remedies 672 CONCLUSION 678 INTRODUCTION

The exclusionary rule in the United States calls on judges to sort the dirty laundry in the government's case and to exclude from criminal trials evidence that the police obtain through constitutional violations. The U.S. Supreme Court, however, has grown skeptical--particularly during the Roberts Court era--about the exclusionary rule that it created over a century ago. (1) As a result, the Court has crafted several doctrines to limit the relief available to defendants. (2) Those limiting doctrines, taken together, amount to more than an exception here or there and result in more than just a few extra wins for the government in close cases. The long-term doctrinal trend has transformed the expectations of courts and police officers, as well as the plausible attorney arguments that form the backdrop for plea negotiations. (3)

In this Article, we look closely at one such limiting doctrine and explain how it reflects long-term trends for criminal procedure remedies. The cases that interest us here apply the "good faith exception" to the exclusionary rule in multi-officer situations. (4) In these instances, one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears; the second law enforcement agent's limited knowledge of the original violation effectively launders the evidence. (5)

We begin our assessment of evidence laundering by reviewing the Supreme Court opinion that first authorized this practice: Herring v. United States. (6) As we describe in Part I, the Herring Court took three steps to extend the good faith exception, making evidence laundering possible. First, the Court stretched the good faith exception, which had previously applied only to mistakes by government agents who were not members of the law enforcement "team," to cover mistakes by other law enforcement agents. (7) Second, the Court imposed a heightened mental state requirement on proof of officer misconduct, declaring that simple negligence by a police officer, regardless of the context, would not be enough to trigger the exclusionary rule. (8) Third, the Court compartmentalized the relevant actions of each individual officer, rather than scrutinizing the behavior of the whole law enforcement team. (9)

In Part II we show more specifically how Herring invited evidence laundering by police and laid the groundwork for judicial approval of this practice. Using a hypothetical case, we first consider the behavior of the police actor who makes the initial mistake, along with the actions of his or her colleague who receives the tainted evidence. We then explain how Herring--by rhetoric and by example--teaches lower courts to turn a blind eye to evidence laundering except when two officers make egregious mistakes in the field as they pursue a suspect.

State courts and lower federal courts have walked through the doctrinal door that the Herring opinion left open. We consider in Part III the actual results when prosecutors ask for admission of laundered evidence under the good faith doctrine. Using the results of a Westlaw search, we show how courts across the country have ruled on evidence laundering in cases involving law enforcement databases (vehicle information, outstanding arrest warrants, and DNA) and direct communications between officers. Most often, courts focus on individual officer behavior or limit their review to a single incident rather than considering the entire course of conduct. This disturbing trend is most common in cases arising from errors in law enforcement databases. (10) In those cases, judges have difficulty identifying the person who inputted the incorrect information and tend to reflexively assert the reliability of databases, instead of examining the quality control systems of those databases. (11)

Following our review of the post-Herring cases, we reflect on the implications of this line of jurisprudence. In Part IV, we argue that the good faith doctrine, as expanded through a broad reading of Herring, makes visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. Courts rely on an economic model of the individual rational actor, which predicts how the rational police officer might respond to the incentives of exclusion. (12) Policing, however, is a social activity. (13) The atomistic perspective built into Fourth Amendment doctrine (and most especially the good faith doctrine) fails to appreciate the interactions among different police officers and organizational units.

The evidence laundering cases make clear that an effective exclusionary rule must take an organizational perspective on police work. In the world of fragmented policing (14) that we glimpse through the window of these cases, organizational theory tells us more than micro-economic theory. In particular, those who design and control the flow of information among policing organizations should, like the officers who react to information in a particular case, come under constitutional scrutiny. Perhaps in recognition of this point, the Herring opinion did mention that "systemic negligence" could result in exclusion. (15) Yet the rigors of assembling evidence to support a single defendant's motion to exclude evidence, together with the limited reach of criminal discovery, make the claim difficult to prove. (16)

One consequence of the Court's focus on the conduct of individual officers is to make jurisdictional boundaries more important. Under the emboldened post-Herring reading of the good faith doctrine, it becomes easier for officers from one jurisdiction to sanitize tainted evidence by passing it along to colleagues in another jurisdiction. (17) Herring thus seems to have reinstituted the silver platter doctrine that the Supreme Court rejected decades ago. (18) The return of the doctrine is especially concerning today because investigations increasingly occur in joint federal-state task forces or across state borders. (19)

Also in Part IV we evaluate the role of evidence laundering within the political economy of the exclusionary rule. Some observers have noted that a more flexible exclusionary remedy might give judges the political cover they need to declare more vigorous legal limits on law enforcement. (20) These predictions, however, have not proven accurate. Although the exclusionary rule transformed slowly over the years into a more flexible balancing enterprise, the substantive limits on police investigations did not appear to strengthen in response.

The final implication that we explore in Part IV is comparative. We suggest that the evidence laundering technique, like so many other changes to criminal procedure remedies in the United States, brings our courts into closer alignment with courts elsewhere in the world. While new in the U.S., the courts' emphasis on police intentions and on the context in which violations occur has long been common in other nations. As the exclusionary rule doctrine in the U.S. converges with its counterparts in other parts of the world, comparative work can provide us with useful insights as we attempt to anticipate future doctrinal developments and to measure the effects of the exclusionary rule. (21)

1. THE GOOD FAITH EXCEPTION, THEN AND NOW

   The original pronouncement of a good faith exception to the exclusionary rule in United States v. Leon (22) carried within it the seeds for growth in many different directions. Even so, the degree to which the Court has strayed from the original, warrant-based context of good faith in just twenty-five years is remarkable. (23)

   1. GOOD FAITH THEN

      Leon involved a police officer who relied on the judgment of a magistrate who issued a search warrant that was subsequently invalidated. (24) After finding fault with the...