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Good faith and the exclusionary rule

One thing that's kind of surprised me is how few 4th Amendment cases the Supreme Court has decided in the last few years.  After watching the oral argument on Wednesday in State v. Gould, I've decided that may be a good thing.

Gould is the posterboy for the next speech excoriating the exclusionary rule for its "high societal costs."  In September of 2006, Gould's mother showed up at a Toledo police station with a computer hard drive.  She explained to the detective that her son had given it to her 10 months earlier and told her not to let anyone else have it,  but that she believed it contained child pornography and no longer wanted it in her home.  The detective put it in the property room, and two months later, when the mother brought in a phone number for Gould, tried to contact him without success.  Three months after that, the detective brought the mother back to the station, had her sign a consent form, and sent the disk off for analysis.  It contained porn videos of children, and photographs of Gould having sex with a child.  The trial court allowed it in on the grounds that it had been abandoned by Gould, but the 6th District reversed, finding no basis to support that conclusion.

So what's the big deal?  Maybe the 6th got it right, maybe it didn't, but the full facts are messier than the ones I recited, and if you paid attention in class yesterday you know that the Supreme Court isn't in the business of error correction, it's there to promulgate Big Rules of Law.

The one the State wanted it to promulgate was a good faith exception to the exclusionary rule for warrantless searches.

Prosecutors have been on this kick ever since SCOTUS came down with Herring v. US in January of 2009.  In that case, Herring had been busted on a warrant that was later determined to have been invalid; it was erroneously retained in the police database.  The Court held that this type of negligent clerical error didn't warrant application of the exclusionary rule.  As I explained when I discussed the case, that's not an unreasonable conclusion, but Roberts decided to use the opinion to launch into a rant about the high costs of the exclusionary rule, and how those costs should be balanced against the deterrent effects of applying the rule.  From this, prosecutors have drawn the conclusion that Herring means that in every case, that balancing test must be applied.

I kept waiting for somebody to rush up to the podium and say, "Wait!  This is bullshit!  Herring didn't announce a new test!  Three months later the Supreme Court threw out a search in Arizona v. Gant and reversed a 28-year-old precedent in the process, and nobody on the Court said diddly-squat about a 'new test.'"  Alas, it was not to be:  the argument proceeded apace, with several of the participants seeming to entertain the notion that the court would enunciate a rule holding that the exclusionary rule won't be applied unless the officer's conduct in violating the 4th Amendment is particularly egregious or is part of a systemic problem, and that the benefits of deterring that conduct would be outweighed by the societal costs of excluding the evidence.

Well, they shouldn't, and here's why:  it would be an absolute disaster.  Yes, it makes sense to say we're not going to apply the exclusionary rule to certain classes of cases.  If the police have done what the 4th Amendment commands, and gone out and gotten a warrant, it makes little sense to exclude evidence just because a court later decides that the magistrate got it wrong.  It makes little sense to exclude evidence where the police are acting pursuant to a law which is subsequently determined to be unconstitutional, or pursuant to case law which is subsequently overruled.  It makes little sense to hold a police officer responsible if some clerk messes up and doesn't pull a warrant.  The purpose of the exclusionary rule is to deter police misconduct, and if the police haven't done anything wrong, what's the point?

But it's one thing to make an a priori determination that we won't apply the exclusionary rule in certain cases, and an entirely different matter to argue that we should make an ad hoc determination whether to apply it in every case, trying to decide whether the police officer's conduct crossed the blurry line of "negligence" into "gross negligence," and where the balance lies between the societal costs and deterrent benefits of imposing the rule.  Pfeifer seemed to understand this, posing the possibility of suppression hearings turned into mini-trials where the police chief and other defense attorneys might be summoned to testify about whether there have been "systemic" violations of the 4th Amendment so as make deterrence more necessary.

That's not the half of it.  Each case would involve determinations of the degree of the police officer's misconduct, and the balancing of the societal interest v. deterrent effect.  What clear rules of law could possibly be developed for that?  How would it even work?  For example, there's a tendency to think that the societal costs and deterrent effect would work in opposite directions:  that if the deterrent value is high and the societal cost low, the evidence would be suppressed, and vice versa.  But there's every reason to believe that the deterrent effect increases in tandem with the societal cost:  suppression that's well-publicized will have much more deterrent effect than suppression which isn't.  You better believe that the Toledo Police Department is a lot more sensitive to the need for obtaining a search warrant than it would be if Mrs. Gould had walked in and handed them a bag belonging to her son that contained a couple grams of crack.

Not that search and seizure law is crystalline in its clarity at present, but at least there's one clear marker:  if the police violated the 4th Amendment, the evidence gets thrown out.  Putting additional variables in the mix, like how bad was the violation, and what's going to happen if we throw this evidence out, basically means appellate review, and thus appellate guidance, is meaningless.

So what's the court going to do?  A good case could have been made in the summer of last year that Ohio law would be substantially improved if the court overruled three cases:  State v. Bezak, State v. Colon, and State v. Rance.  It proceeded to do just that, because it was tired of hearing case after case on post-release control, on what the mens rea was for a particular offense, and on whether two offenses were allied.  I'm betting that several of the justices will come to the realization that adopting the state's argument would result in a manifold increase in the 4th Amendment cases heading to the high court, with the same net result as in Bezak, Colon, and Rance:  a court which prides itself on enunciating clear rules of law finds itself deciding case after case, in which the rule it articulates in one is no clearer than in the last.


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