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The good faith exception and other stuff

The cops walk past a hotel room, and through the open window they spot a bag of drugs lying on the bed.  They knock on the door, the occupant opens it, and they seize and arrest him, and which point one cop takes two steps into the room and picks up the bag.

Good search or bad?  That's the situation presented in the 10th District's decision last week in State v. Thomas, and it's worth a walk through it.

Search incident to arrest.  Once Thomas opened the door, the State contends, he was in a "public place," and could be arrested without a warrant.  The cops then have the right to search and seize any items within his control, such as the bag.  That argument runs into the Supreme Court's decision in Payton v. New York, which drew a bright line at the threshold of the home, and held that the police need a warrant in most circumstances to cross it.  It's a little more complicated than that:  if the defendant is standing outside the home, and runs into it to avoid the police, they can enter in "hot pursuit."  But if the defendant merely opens the door in response to a police knock, he remains inside the home, and if the cops enter, they need a warrant.

Exigent circumstances.  These can arise in a number of situations, and here the State relied on the argument that Thomas could have destroyed the evidence.  But that requires a showing of more than a mere possibility of destruction:  there must be an "objectively reasonable basis for concluding that the loss or destruction of evidence is imminent."  Here, even though Thomas had seen the officers when they passed by the window, he made no effort to destroy the drugs, and there was nothing to indicate he knew they'd seen the bag.  The panel cites one case where the court found exigent circumstances:  the police at the door could hear glass shattering inside, people running around, and repeated toilet flushing. 

Plain view.  Seeing the drugs in plain view on the bed creates probable cause to seize them, but it doesn't give the police the right to enter the room to do so:  "while the plain view exception to the warrant requirement creates probable cause to support a warrant, it does not and cannot create justification to enter a home or property without a warrant."  In short, plain view may give the cops probable cause, but to enter the room they still need exigent circumstances or a warrant.

Protective sweep.  The State raised this for the first time on appeal, and you can't do that.  Besides, protective sweep relies on a legal arrest, and a showing that other people are likely to be present.  Neither of those apply here.

Good faith.  As I've mentioned before, ever since the Supreme Court's 2009 decision in Herring v. US, the State's been arguing that the case set forth a "good faith" exception for warrantless searches:  a search couldn't be tossed unless the court found that the police officer's conduct was particularly egregious or part of a systemic problem, and that the benefits of deterring that conduct by suppressing the evidence outweighed the societal costs of excluding it.

As I explained then, the argument's bullshit; Herring didn't announce any such rule.  The panel concurs, drawing an important distinction.  In every case in which the good faith exception has been applied, the officer was relying on someone else's judgment -- a magistrate who issued the search warrant, a clerk who left an invalid warrant in a database, legislators who passed a law later deemed unconstitutional -- and the officer's reliance was objectively reasonable.  But

where there is no outside authority on which the officer reasonably relied, the principal rationale relied upon by the Supreme Court in Leon and its progeny--that it would serve no deterrent purpose to punish the officer, acting in good faith, for the error of the magistrate, the legislature, or by a negligent mistake by a court or police employee--is not present.

In short, where the officer acts in reliance on his own judgment, even if he's only negligent in that regard, he can't claim the good faith exception.

Oftentimes, especially at the appellate level, where the courts are more interested in deciding the case than in articulating sweeping rules of law, search and seizure cases don't lend themselves to broad application because they're so fact-specific.  Thomas is an exception to that:  it provides a good analysis (and a wealth of citations) on some critical Fourth Amendment issues.  If you've got a folder with key search cases, Thomas should be in it.


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