A spectacular non sequitur: the Supreme Court's contemporary Fourth Amendment exclusionary rule jurisprudence.

Author:Gray, David
Position:III. The Consequences of the Spectacular Non Sequitur through IV. Conclusion, with footnotes, p. 29-57

    With a brief history of the Court's Fourth Amendment exclusionary rule jurisprudence and a positive hybrid theory of the exclusionary rule before us, we can turn now to a more detailed account of the conceptual consequences of a deterrence-only approach to the exclusionary rule. The sections that follow expose and examine the consequences of the spectacular non sequitur for some of the key components of the Court's Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the standing requirement. Each of these discussions leads to the conclusion that deterrence alone is insufficient to keep these important doctrinal commitments afloat. The Court must therefore either abandon them or embrace some version of the hybrid approach described in Part II.

    1. The Good Faith Exception

      In Leon v. United States, the Court established an exception to the exclusionary rule in circumstances where the offending officer acted in the "objective good faith" that he was not violating the Fourth Amendment. (193) In Leon, and in subsequent "good faith" cases, the Court has rested its holdings on the claim that the Fourth Amendment exclusionary rule is justified only according to its ability to deter law enforcement officers, (194) Unfortunately, the good faith exception cannot be justified by deterrence considerations alone without running afoul of the spectacular non sequitur. (195) This does not mean that the good faith exception must be abandoned. In order to justify and sustain the good faith exception, however, the Court must adopt the hybrid approach proposed in Part II. Doing so not only puts the good faith exception on firmer conceptual ground, it also offers welcome clarity to lower courts and therefore promises more predictable outcomes. As the unanswered plea in Messerschmidt v. Millender shows, this brand of clear guidance is wanted and needed. (196)

      In Leon, the Burbank Police Department received information from a confidential informant implicating "Armando" and "Patsy" in a drug conspiracy involving their home and "another location in Burbank." (197) Further investigation identified potential coconspirators, including Leon, and several locations, including Leon's home. Based on the tip and additional investigation, officers applied for and received a stack of search warrants. Subsequent searches uncovered drugs and other evidence of a drug conspiracy at the parties' homes and at a location that was apparently maintained as a stash house for storing large quantities of drugs. (198) Leon and his codefendants moved to suppress all of this evidence at trial on the grounds that the warrants were issued on less than probable cause. The District Court agreed and found that the searches were illegal, despite having been conducted in good faith. (199) It therefore granted the motions to suppress in part as to each defendant, depending upon where each had a reasonable expectation of privacy. As a consequence, all of the illegally seized evidence was admissible against at least some of the defendants and large quantities of illegal drugs seized from the stash house were admissible against all of the defendants. (200) The Ninth Circuit affirmed, but the Supreme Court reversed.

      Writing for a five-justice majority, Justice White reprised the main themes from Calandra contending the exclusionary rule exacts "substantial social costs" by compromising the truth-seeking function of trials and by allowing guilty defendants to go free or to bargain for reduced sentences. (201) In the Court's view, those costs could be justified only to the extent exclusion might serve to deter law enforcement officers from violating the Fourth Amendment. (202) Although somewhat skeptical, Justice White "assum[ed] that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment," but nevertheless concluded that exclusion "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." (203) The reason why, according to the Court, was that excluding evidence seized by an officer who holds an objectively reasonable belief that he is obeying the Fourth Amendment cannot alter his "future conduct" or the future conduct of similarly situated officers who will also hold objectively reasonable beliefs in the lawfulness of their conduct. (204) It follows, White concluded for the Court, that exclusion can serve no purpose where, as in Leon, the officers searched pursuant to a facially valid warrant which they reasonably believed provided them with lawful authority. (205)

      The Court's logic in Leon rests on the same spectacular non sequitur Hart identified in his critique of Bentham. Its effect is evident early on, beginning with Justice White's assertion that the exclusionary rule "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity." (206) Although beyond dispute, this is a non sequitur at least twice over. First, the officers' conduct in Leon was not objectively reasonable. To the contrary, their searches and seizures were illegal under the Fourth Amendment and therefore by definition were objectively unreasonable. (207) Second, the Court's suggestion that the officers in Leon did not know--for good reasons--that they were stepping over the Fourth Amendment line, and therefore were not and could not have been deterred, is also a non sequitur. Absent a revolution in quantum technology we have no hope that inflicting exclusion against any officer will have deterred him from past violations, regardless of culpability. Deterrence is always and can only be prospective. So, as Hart might have put it, it may be true that the threat of exclusion could not have deterred the officers in Leon, but there is no reason to believe the actual infliction of exclusion against them would not secure a higher measure of conformity to the Fourth Amendment by them and all other officers than would be secured by recognizing a general good faith exception.

      The response suggested by the Court in Leon and subsequent good faith cases is that excluding evidence seized illegally but in good faith cannot deter future violations by officers who will act in good faith because they will not, by definition, have reason to suspect that they may be violating the Fourth Amendment, and therefore will not be dissuaded from illegal conduct they reasonably believe to be legal. (208) This too is a non sequitur, and as a consequence proves too much. If the target for exclusionary deterrence was officers who will act in objective good faith, then there would be no reason to inflict exclusion in any case regardless of the culpability of the offending officer. Officers who are committed to obey the Fourth Amendment are not the audience for exclusion as a deterrent, however. The audience for exclusion is, rather, officers who may be tempted in the future to violate or risk violating the Fourth Amendment. (209) Hart's point, equally applicable here, is that there is no reason to think that the threat generated by excluding evidence in cases like Leon would not reach these officers. (210) Contrariwise, there are good reasons to worry that the provision of a general excuse will compromise the deterrent message of the exclusionary rule and its overall effects on law enforcement. (211)

      Although the Court has never recognized much less addressed these concerns, (212) one response it might make is that deterrent threats generated by enforcing the exclusionary rule against officers who commit good faith violations of the Fourth Amendment are directed only or principally toward officers who will make good faith efforts to respect Fourth Amendment rules in the future. Therefore, inflicting exclusion in good faith cases would "in no way affect [their] future conduct unless it is to make [them] less willing to do [their] duty." (213) The metaphysics and epistemology underlying such a response are bizarre to say the least. There is simply no reason to think that the Court's deterrent messages would or could be broadcast so narrowly. There are no dedicated frequencies courts can use to communicate with select groups of officers on an exclusive basis. Rather, the courts' messages in exclusionary rule cases are broadcast generally to all law enforcement officers and their agencies. (214)

      By way of further response, one might argue that universal enforcement of the exclusionary rule is not necessary to alter law enforcement's practices and institutional values. (215) This is, of course, an empirical claim, (216) which would require support, but let us assume arguendo that the deterrence effects of the exclusionary rule could be preserved if it was enforced in, say, eighty percent of cases. If instances of good faith violations comprise less than twenty percent of suppression cases, then maintaining the good faith exception would not seem to pose a threat to deterrence goals. The problem with this argument is that, absent reliance on the spectacular non sequitur or retributivist principles, it offers no reason why the culpability of the offending officer should play a role in selecting the twenty percent of cases courts can afford to overlook. We could just as well pick at random and still maintain full deterrence. Better still, if the primary costs of exclusion accrue in the form of compromised truth seeking and releasing dangerous criminals, then overall utility would be better preserved by barring exclusion in the twenty percent of cases where suppression would most dramatically affect truth seeking or result in the release of the most dangerous criminals. (217) Thus, noting that exclusion need not be enforced in all cases in order to produce a significant deterrent effect does nothing to advance the...

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