Author:Laitman, Rebecca

Introduction 800 I. A Failure to Define Flagrancy 802 A. Exclusionary Rule Jurisprudence 803 1. Culpability Limitation: Good Faith 804 2. Causation Limitation: Independent Source 806 3. Causation Limitation: Inevitable Discovery 807 4. Causation Limitation: Attenuation 808 B. A Prelude to Strieff. The Problems Caused by the Herring Opinion 810 1. Contradicts Fourth Amendment Jurisprudence 810 2. Undefined Terms 811 3. New Procedural Impracticalities 812 4. Unclear Implications for Attenuation 814 C. Herrings Lasting Impact: Utah v. Strieff and the Current State of the Attenuation Exception's Purpose and Flagrancy Factor 815 1. Utah v. Strieff. Facts and Majority Opinion 815 2. The Dissents: Strieff Provides Incentive to Commit Misconduct 816 3. Increased Burden of Proof Turns on Flagrancy's Definition 817 II. Lower Court Purpose and Flagrancy Factors 819 A. Flagrancy Equated to Subjective Intent 819 B. Flagrancy Depends on Objective Reasonableness and Subjective Intent 823 C. Flagrancy Depends on Objective Reasonableness, and Purpose Depends on Subjective Culpability 824 III. The Need to Return to Objectivity 830 A. Impracticalities of Subjectivity 831 1. Defendant's Burden Is Too High 832 2. No Need to Contradict Fourth Amendment Jurisprudence 833 B. Flagrancy Should Be Based on Clarity of Case Law 835 1. Burden Properly Relieved 835 2. Court Can Choose What It Wants to Dis-Incentivize 836 Conclusion 837 INTRODUCTION

An officer illegally stops a man without reasonable suspicion, violating his Fourth Amendment right against unreasonable search and seizure. Based on information gained during this illegal stop, the officer searches the man and discovers drugs and paraphernalia. (1)

The exclusionary rule to the Fourth Amendment states that when an officer, through his own illegal act, discovers evidence against a defendant, such evidence cannot be used against the defendant. (2) Therefore, in the above example, because the officer only found the evidence because of an illegal stop, the exclusionary rule should prevent the evidence from being used against the man.

However, in June of 2016, the Supreme Court in Utah v. Strieff (3) declined to apply the exclusionary rule in the very situation described above. (4) In this case, after Officer Fackrell stopped defendant Strieff without reasonable suspicion, he discovered an outstanding arrest warrant in Strieff's name for a completely unrelated traffic violation. (5) Fackrell then arrested Strieff and conducted a search incident to the arrest authorized by the warrant. (6) During this search, Fackrell found methamphetamines and drug paraphernalia. (7) While conceding that the original stop was illegal, the Court held that the evidence was admissible because of an exception to the exclusionary rule known as attenuation. (8)

Attenuation means that when the causal connection between the illegal conduct and the acquisition of evidence is remote or "attenuated" enough, the evidence may be admissible. (9) The Court applies a three-factor test to assess the connection. (10) One of these factors is "purpose and flagrancy of official misconduct." (11) In Strieff, the Court ruled that the evidence was admissible under the attenuation exception because the officer's conduct was not flagrant. (12) However, the Court never explained how it came to that conclusion, nor did it indicate what distinguishes flagrant conduct from non-flagrant conduct. (13)

The purpose of the exclusionary rule is to deter police misconduct by removing the incentive for an officer to conduct an illegal search or seizure. (14) The Supreme Court has explicitly tied flagrancy to this deterrent purpose--the more flagrant a violation is, the greater the need to deter that behavior by applying the exclusionary rule. (15) However, without clear articulation of what sets a flagrant violation apart from a non-flagrant violation in the context of police misconduct, lower courts have no guidance regarding what behavior the Court aims to deter by applying the exclusionary rule. (16) Further, as Justice Kagan explained in her dissent in Utah v. Strieff, the result of the majority's ruling implies that "[t]he officer's incentive to violate the Constitution thus increases: From here on, he sees potential advantage in stopping individuals without reasonable suspicion--exactly the temptation the exclusionary rule is supposed to remove." (17) Accordingly, even though this case "has received little public attention... [it] carries enormous implications" regarding the future of the exclusionary rule. (18)

Part I of this Note will illustrate how the Supreme Court has failed to explicitly define flagrancy in the context of Fourth Amendment jurisprudence. Part II will demonstrate how the lower courts have grappled with such lack of a definition. Part III will define flagrancy as an objective measure: an officer's illegal conduct is flagrant when it violates clearly established case law.


    The Supreme Court has not clearly articulated what kind of police conduct is flagrant in the context of the Fourth Amendment's exclusionary rule. (19) The term most prominently appears in one of the exclusionary rule's exceptions known as the attenuation doctrine. Under this doctrine, evidence obtained illegally may be admissible if the prosecution can show that the connection between the illegal police behavior and the challenged evidence has "become so attenuated as to dissipate the taint" of the illegality. (20) In assessing such connection, the Court evaluates three factors--temporal proximity between the illegal conduct and acquisition of evidence, any intermediate circumstances between the illegal conduct and acquisition of evidence, and the "purpose and flagrancy" of the official misconduct. This Note focuses on the purpose and flagrancy factor of the attenuation exception. However, the analysis of this factor has been influenced by another exception to the exclusionary rule known as the good faith exception.

    Section LA will formally introduce the exclusionary rule and give an overview of each exception to the rule--good faith, independent source, inevitable discovery, and attenuation. Section LB will discuss issues presented by Herring v. United States, a Supreme Court case premised on the good faith exception. Language from this case has since been used to alter the Court's analysis of the attenuation exception's "purpose and flagrancy" factor. Section I.C will introduce the Court's most recent application of the attenuation exception--Utah v. Strieff--and explore scholars' concerns with this case's implications for the exclusionary rule in general.

    1. Exclusionary Rule Jurisprudence

      The Fourth Amendment aims to protect individuals against unreasonable searches and seizures by the government. (21) A police officer who stops, searches, or arrests someone without the proper justification violates that constitutional protection. (22) To remedy such violations, the Supreme Court adopted the exclusionary rule. (23) Under this rule, evidence of an individual's guilt that is found as a result of a Fourth Amendment violation--such as an unjustified search or arrest--cannot be used against that person at trial. (24) The rule applies both to the direct products of an officer's illegal act, but also to secondary evidence, which is considered "fruit of the poisonous tree." (25)

      The main rationale underlying the exclusionary rule is that it aims to "deter [violations]--to compel respect for the constitutional guaranty in the only effectively available way--by removing the incentive to disregard it." (26) The Court has recently stated, "the exclusionary rule has never been applied except where its deterrence benefits outweigh its substantial social costs." (27) Accordingly, the Court has delineated four exceptions in which the social costs of the rule outweigh the potential deterrence benefits. The first is the good faith exception, which is currently premised on analysis of police culpability. (28) The remaining three exceptions are causation limitations to the "fruit of the poisonous tree" doctrine. The general premise of the fruit of the poisonous tree doctrine is that secondary evidence--anything discovered as a result of illegally obtained primary evidence--is also inadmissible under the exclusionary rule. (29) The three exceptions to this doctrine arise in situations in which the government can prove that secondary or derivative evidence is far enough removed from the initial illegality that it is not causally tied to the illegal police conduct. These fruit of the poisonous tree exceptions are referred to as the independent source exception, the inevitable discovery exception, and the attenuation exception. The following subsections provide an overview of the four limitations.

      1. Culpability Limitation: Good Faith

        Originally, the Court established the "good faith" exception in United States v. Leon. (30) In Leon, the Court held that evidence obtained pursuant to a search warrant that is later declared to be invalid may be introduced at a defendant's criminal trial, if a reasonably well-trained officer would have believed the warrant was valid. (31) This standard was entirely objective. (32) In Leon, police officers executed a facially valid search warrant that led to the discovery of evidence, but the warrant was subsequently declared invalid due to judicial error. (33) While the district court initially suppressed the evidence because it was obtained based on a faulty warrant, the Supreme Court reasoned that suppression would not serve any law enforcement deterrent purpose because the mistake was on the part of the judge, not an officer. (34) The Court ruled that the officers' reliance on the warrant was reasonable, and that any other reasonably trained officer would have acted similarly. (35) Accordingly, the benefits of deterrence under these circumstances were not significant enough to warrant...

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