The Intercircuit Exclusionary Rule.

Author:Durling, James


Imagine that you commit a crime in Connecticut and then return home to Puerto Rico where you commit another crime. In the course of investigating the second crime (in Puerto Rico), the FBI discovers evidence that implicates you in the first crime. In light of this evidence, the federal government indicts you for the first crime, in accordance with venue rules, in the District of Connecticut. At trial, you argue that the inculpatory evidence should be suppressed because the Second Circuit (the place of the trial) has ruled that similar searches violate the Fourth Amendment. The government, by contrast, argues that the evidence should be admitted because the First Circuit (the place of the search) has ruled that such searches do not violate the Fourth Amendment. How should the trial judge rule? (1)

For over thirty years, federal district courts have resolved these types of cases--call them "intercircuit suppression disputes"--by adopting a location-based choice-of-law rule: courts apply the precedent of the circuit where the search occurred. The choice-of-law approach has been widely followed by lower courts and even recognized by a number of criminal procedure treatises. (2) Nevertheless, this Comment will show that the approach is fundamentally mistaken.

In some ways, the mistake is understandable. A well-developed literature--stretching back over fifty years--has long treated interjurisdictional suppression disputes as a choice-of-law problem. Scholars have examined this question in federal-state, (3) state-state, (4) and federal-international (5) cases. But the existing scholarship has yet to consider whether federal-federal suppression cases also create a choice-of-law problem. (6)

This Comment will demonstrate that federal-federal cases do not create a choice-of-law problem. The reason is relatively straightforward: circuit splits do not create separate bodies of "law" and thus do not implicate choice of law. Indeed, in other doctrinal contexts, federal courts have recognized that circuit splits do not create a choice-of-law problem. And this distinction--between different laws and different interpretations of the same law--is well grounded in broader choice-of-law theory. Courts should therefore resolve intercircuit suppression disputes in the same way that they would any other question of federal law. They should either follow vertical precedent or, if there is no binding precedent, they should independently interpret the law.

Admittedly, intercircuit suppression disputes involve one additional complication. Under the current good-faith exception to the exclusionary rule, federal courts must also determine whether an officer relied upon local appellate precedent at the time of the search. In other words, before a federal court evaluates a search under its own circuit's precedent, it must first evaluate whether the search circuit's precedent authorized the search at issue. And if the search circuit's precedent did, then the evidence should be admitted regardless of the forum court's interpretation. But to be clear, the good-faith exception is not a choice-of-law rule; the forum court still analyzes the officer's reasonable reliance from its own perspective. Instead, the good-faith exception simply recognizes that the deterrent purpose of the exclusionary rule is not served by suppressing evidence acquired by an officer who acted in objectively reasonable reliance upon binding precedent.

In light of these two insights--about circuit splits and the good-faith exception--this Comment proposes a new framework for resolving intercircuit suppression disputes. The framework has three steps: first, the forum court determines whether the officers reasonably relied upon locally binding precedent at the time of the search; second, if the officers did not, the forum court determines whether its own circuit has binding precedent that resolves the question; and third, if the circuit does not, the forum court independently determines the meaning of federal law. This framework rests upon sounder doctrinal and theoretical footing than the current choice-of-law approach. And the framework would change the outcome of suppression disputes in certain cases, such as when the search circuit would suppress the evidence but the forum circuit would not.

In defending this framework, this Comment also makes a broader theoretical contribution to the choice-of-law literature. Courts and scholars have long assumed that circuit splits do not create a choice-of-law question but have failed to provide a transsubstantive account of why they do not. (7) This Comment offers such an account by showing that the presence of separate laws--rather than just different interpretations of the same law--is a necessary prerequisite to a choice-of-law problem. And in doing so, this Comment explains why federal courts should never resolve circuit splits--even outside of the exclusionary rule context--by resorting to choice-of-law rules.

This Comment proceeds in four parts. Part I describes the existing choice-of-law approach to resolving intercircuit suppression disputes. Part II then shows that the choice-of-law approach conflicts with existing doctrine and choice-of-law theory. Part III argues that the current good-faith exception to the exclusionary rule most likely requires courts to account for another circuit's precedent in determining whether an officer reasonably relied upon a binding interpretation of the law. Finally, Part IV combines these insights into a three-step framework for resolving intercircuit suppression cases.


    Thirty years ago, in United States v. Gerena, (8) a federal district court ruled for the first time that intercircuit suppression disputes present a choice-of-law question. The facts of Gerena are essentially those presented in the Introduction: the defendant robbed a bank in Connecticut, but the FBI acquired key evidence for the case through a wiretap located in Puerto Rico. When faced with the question of which circuit's precedent should apply, the district court ruled that intercircuit suppression disputes are controlled by "the law of the place where [the allegedly illegal search] occurred." (9) Gerena is significant for being not only the first, but also the most in-depth, discussion of the application of choice-of-law principles to federal circuit conflicts over the exclusionary rule. Indeed, subsequent decisions adopting Gerena's choice-of-law approach have generally cited its holding with little independent analysis. (10)

    In support of its choice-of-law approach, the court in Gerena first turned to the Restatement (Second) of Conflict of Laws. The court began by quoting the Restatement's claim that "Conflict of Laws covers an extremely wide area, embracing all situations where the affairs of men cut across state lines." (11) The Restatement, the court further observed, defines "state" as "any 'territorial unit with a distinct general body of law' and is expressly not limited according to notions of sovereignty or political boundaries." (12) Based on the Restatements broad definitions, the court reasoned that circuit splits may constitute a form of state-state conflict as "the states are in a position roughly similar to that of the circuits." (13)

    The court next noted that "the law of a state is also broadly defined to include 'the body of standards, principles and rules.'" (14) "Accordingly," it concluded that "'law' may properly include differing 'interpretations' of the law." (15) Or put another way, the court decided that circuit precedent should be thought of as "law," subject to choice-of-law principles.

    Finally, the court pointed out that the Restatement recognizes "intrastate" conflicts. (16) Specifically, the court noted that the Restatement treats conflicts that arise when the subdivisions of a state, including "counties, cities, towns and villages[,] ... have their own separate law and courts" as "analogous to those dealt with in the Restatement." (17) The court then analogized the Restatements understanding of "intrastate conflicts"--which the court presumed included differing interpretations of state law--to "intrafederal" conflicts in the form of circuit splits. (18) "To the extent that each circuit has its own body of binding precedent," the court concluded, "then, in the absence of authoritative Supreme Court disposition of the particular issue in question, differences among the circuits give rise to intrafederal disputes and thus genuine conflicts within the general meaning of conflict of laws analysis." (19)

    In addition to discussing the Restatement, Gerena cited two key federal precedents to support its view of intercircuit choice of law. First, the court noted that in Factors Etc., Inc. v. Pro Arts, Inc., (20) the Second Circuit deferred to a Sixth Circuit decision holding that there is no inheritable right to publicity under Tennessee law. The Second Circuit gave "conclusive deference" to the Sixth Circuit's interpretation of Tennessee law in large part because Tennessee is located within the Sixth Circuit. (21) Gerena took Factors to stand for the broader proposition that federal courts should apply the precedent of the circuit from which a case arises. (22) In addition, the court cited United States v. Buck, (23) another Second Circuit decision in which the court of appeals ruled that evidence from an illegal search in New Jersey should not be suppressed because the officers had acted in good faith at the time of the search. (24) Gerena emphasized, however, that the Second Circuit made its own determination "only after finding that the Third Circuit had not addressed the issue at bar." (25) In other words, the court appeared to read Buck as implicitly following the precedent of the search circuit.

    In the past thirty years, nearly every district court to address an intercircuit suppression case has adopted...

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