Glide Path to an "inclusionary Rule": How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule - James P. Fleissner

• Citation: Vol. 48 No. 3
• Publication year: 1997

Glide Path to an "Inclusionary Rule": How Expansion of the Good Faith Exception Threatens to Fundamentally Change the Exclusionary Rule

James P. Fleissner^*

During recent political debates over the federal budget deficit, it became fashionable to speak of a "glide path" to a balanced budget. Advocates of a budget plan would plan certain tax rates and spending limits, factor in a set of economic assumptions, and graph a swooping path of declining deficits over several years. Needless to say, that sort of exercise in prediction does not involve the sort of odds that would inspire confidence in a gambler. The accuracy of the beguiling graph, of course, depends on whether tax and spending commitments are kept and whether a host of economic assumptions are correct. Common sense tells us to be wary: Reality may well convert that smooth arc of descent into a line resembling an "up" staircase.

Making predictions about the future of our constitutional jurispru-dence is a similarly risky business. Shifts in the interpretation of the United States Constitution depend on many variables, from the direction of the political winds to the chance occurrence of a case and controversy that raises a constitutional issue in the right factual setting. Despite the difficulty of the predictive enterprise, I believe that the jurisprudence of the Fourth Amendment is on a "glide path" toward a fundamental change in the Exclusionary Rule, which currently forbids the use of much illegally seized evidence. I believe that we are on a course towards an erosion of the Exclusionary Rule and a diminution of our rights. I fear that the Exclusionary Rule will be converted into a rule of inclusion. I see the principal vehicle for traveling this glide path as the continued expansion of the good faith exception to the Exclusionary Rule.

In its 1984 decision in United States v. Leon,¹ the United States Supreme Court recognized a good faith exception to the Exclusionary Rule in a case when the police, acting in good faith, conducted a search pursuant to a warrant that, although issued by a magistrate, was later held by a reviewing court not to be supported by probable cause. As I will discuss, there is now growing support for extending the good faith exception to warrantless searches and seizures, so that evidence found by a court to be illegally obtained through unreasonable warrantless searches or seizures would not be excluded if law enforcement officers acted with an objective, good faith belief that their actions were legal. The rationale most often advanced for this position goes something like this: The purpose of the Exclusionary Rule is to deter misconduct by the police, and you cannot deter people who are acting in good faith. In the absence of any deterrent impact, so the argument goes, the truth-seeking process should not be distorted by excluding evidence. Supporters of this argument have extended it to justify eliminating the remedy of exclusion in cases of good faith violations of Fifth and Sixth Amendment rights.

To embrace the arguments for extending the holding of Leon, arguments which have gained a measure of legitimacy, would seriously undermine the protections of the Constitution by eliminating incentives for the law enforcement establishment to properly train officers and for individual officers to adhere strictly to the directives of that training. I think you will agree that a fundamental change of the Exclusionary Rule through expansion of the good faith exception is, at least, a plausible scenario and, more likely, a distinct possibility. I hope you will agree that such a path would be the wrong course.

This Article is comprised of three sections. The first section describes the origins of the good faith exception using Professor Herbert L. Packer's two models of the criminal process as a way of charting and understanding events leading to the recognition of the good faith exception. The second section describes the political forces and legal developments that may provide the impetus for expansion-of the good faith exception in the Fourth Amendment context and, possibly, Fifth and Sixth Amendment contexts as well. The final section makes the case against further expansion of the good faith exception to the Exclusionary Rule in cases of Fourth Amendment violations involving warrantless searches and seizures.

I. The Origins of the Good Faith Exception

The famous text of the Fourth Amendment does not mention an exclusionary remedy for violations of the amendment, much less exceptions to such a remedy. Indeed, the amendment defines the right created in broad, sweeping terms:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants will issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.²

Among the questions not answered in the text are these two: (1) What is an "unreasonable" search and seizure? (2) What should or must be the remedy when the right to be secure against unreasonable searches and seizures is violated? Not surprisingly, reasonable persons have disagreed on the answers to these questions.

In analyzing the different points of view on the proper meaning of the Fourth Amendment, it is useful to make reference to the framework provided by Professor Herbert L. Packer in his famous article entitled, "Two Models of the Criminal Process."³ Professor Packer defined two dominant views of the criminal justice system: the Crime Control Model and the Due Process Model.⁴ The Crime Control Model is based on a value system that holds that "the repression of criminal conduct is by far the most important function to be performed by the criminal process."⁵ The Crime Control Model's goal is the efficient apprehension and punishment of criminals.⁶ The ultimate goal is to protect the law-abiding citizen. One might say that the Crime Control Model would interpret the Bill of Rights in light of certain ends outlined in the Preamble of the Constitution: to establish justice and insure domestic tranquility.

The Due Process Model, as defined by Professor Packer, is rooted in different values: "If the Crime Control Model resembles an assembly line, the Due Process Model looks very much like an obstacle course. Each of its successive stages is designed to present formidable impedi-ments to carrying the accused any further along in the process."⁷ The Due Process Model is based on a skeptical view of the accuracy of the process for determining guilt, as well as a willingness to allow a guilty person to go free "if various rules designed to safeguard the integrity of the process are not given effect."⁸

The contrast between the models is stark. The Crime Control Model intends to protect citizens from crime and allow them to enjoy the blessings of liberty. The Due Process Model intends to ensure that the government does not act oppressively or tolerate appreciable risks of inaccurate findings of guilt. The tension between these two models is what animates the debate about how to answer the crucial questions concerning the proper meaning to ascribe to the Fourth Amendment and the desirability of sanctioning violations with the exclusion of evidence. Indeed, Professor Packer noted that the issue of whether the criminal process should be designed "for correcting its own abuses" is an issue that "may well account for a greater amount of the distance between the two models."⁹ He wrote:

In theory the Crime Control Model can tolerate rules that forbid illegal arrests, unreasonable searches, coercive interrogations, and the like if their enforcement is left primarily to managerial sanctions internally imposed. What it cannot tolerate is the vindication of those rules in the criminal process itself through the exclusion of evidence illegally obtained or through the reversal of convictions in cases where the criminal process has breached the rules laid down for its observance. The availability of these corrective devices fatally impairs the efficiency of the process. The Due Process Model, while it may in the first

instance be addressed to the maintenance of reliable factfinding techniques, comes eventually to incorporate prophylactic and deterrent rules that result in the release of the factually guilty even in cases in which blotting out the illegality would still leave an adjudicative factfinder convinced of the accused's guilt.¹⁰

The Crime Control Model suffers from an inconsistency as well: While touting criminal punishment to deter crime, the Crime Control Model decries the sanction of exclusion to deter misconduct by the government. The clash between the models is also seen in how proponents of each answer these charges of inconsistency. Due Process Model advocates are willing to release the factually guilty to deter government violations of rights. Crime Control Model advocates prefer to allow the use of illegally seized evidence to convict the factually guilty and deter crime, and use less extreme methods to deter illegal seizures. That is not to say that each of the models reject outright the values of the other model. The Due Process Model recognizes the value of punishing the guilty and fighting crime; the Crime Control Model accepts the value of a fair process that protects the rights of the accused. But each model's position on the Exclusionary Rule is consistent with its respective hierarchy of values.

Supporters of each of these two models of the criminal process might take extreme positions on the Exclusionary Rule. The Crime Control Model advocate might argue for no exclusion of evidence whatsoever, leaving other means to try to address government overreaching. The Due Process Model advocate might argue for an absolute rule of exclusion for any improperly seized evidence. It should not come as a surprise that the...