Narrowing Application of the Exclusionary Rule

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 shall 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.


Narrowing Application of the Exclusionary Rule.—For as long as we have had the exclusionary rule, critics have attacked it, challenged its premises, disputed its morality.474 By the early 1980s, a majority of Justices had stated a desire either to abolish the rule or to sharply curtail its operation,475 and numerous opinions had rejected all doctrinal bases other than deterrence.476 At the same time, these opinions voiced strong doubts about the efficacy of the rule as a deterrent, and advanced public interest values in effective law enforcement and public safety as reasons to discard the rule altogether or curtail its application.477 Thus, the Court emphasized the high costs of enforcing the rule to exclude reliable and trustworthy evidence, even when violations have been technical or in good faith, and suggested that such use of the rule may well “generat[e] disrespect for the law and administration of justice,”478 as well as free guilty defendants.479 No longer does the Court declare that “[t]he essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all.”480

Although the exclusionary rule has not been completely repudiated, its use has been substantially curbed. For instance, defendants who themselves were not subjected to illegal searches and seizures may not object to the introduction of evidence illegally obtained from co-conspirators or codefendants,481 and even a defendant whose rights have been infringed may find the evidence admitted, not as proof of guilt, but to impeach his testimony.482 Further, evidence obtained through a wrongful search and seizure may sometimes be used directly in the criminal trial, if the prosecution can show a sufficient attenuation of the link between police misconduct and obtaining the evidence.483 Defendants who have been convicted after trials in which they were given a full and fair opportunity to raise claims of Fourth Amendment violations may not subsequently raise those claims on federal habeas corpus because, the Court found, the costs outweigh the minimal deterrent effect.484

The exclusionary rule is inapplicable in parole revocation hearings,485 and a violation of the “knock-and-announce” rule (the procedure that police officers must follow to announce their presence before entering a residence with a lawful warrant)486 does not require suppression of the evidence gathered pursuant to a search.487 If an arrest or a search that was valid at the time it took place becomes bad through the subsequent invalidation of the statute under which the arrest or search was made, the Court has held that evidence obtained thereby is nonetheless admissible.488 In other cases, a grand jury witness was required to answer questions even though the questions were based on evidence obtained from an unlawful search and seizure,489 and federal tax authorities were permitted in a civil proceeding to use evidence that had been unconstitutionally seized from a defendant by state authorities.490

A significant curtailment of the exclusionary rule came in 1984 with the adoption of a “good faith” exception. In United States v. Leon,491 the Court created an exception for evidence obtained as a result of officers’ objective, good-faith reliance on a warrant, later found to be defective, issued by a detached and neutral magistrate. Justice White’s opinion for the Court could find little benefit in applying the exclusionary rule where there has been good-faith reliance on an invalid warrant. Thus, there was nothing to offset the “substantial social costs exacted by the [rule].”492 “The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates,” and in any event the Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates.493 Moreover, the Court thought that the rule should not be applied “to deter objectively reasonable law enforcement activity,” and that “[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.”494 The Court also suggested some circumstances in which courts would be unable to find that officers’ reliance on a warrant was objectively reasonable: if the officers have been “dishonest or reckless in preparing their affidavit,” if it should have been obvious that the magistrate had “wholly abandoned” his neutral role, or if the warrant was obviously deficient on its face (e. g., lacking in particularity).

The Court applied the Leon standard in Massachusetts v. Sheppard,495 holding that an officer possessed an objectively reasonable belief that he had a valid warrant after he had pointed out to the magistrate that he had not used the standard form, and the magistrate had indicated that the necessary changes had been incorporated in the issued warrant. Then, the Court then extended Leon to hold that the exclusionary rule is inapplicable to evidence obtained by an officer acting in objectively reasonable reliance on a statute later held to violate the Fourth Amendment.496 Justice Blackmun’s opinion for the Court reasoned that application of the exclusionary rule in such circumstances would have no more deterrent effect on officers than it would when officers reasonably rely on an invalid warrant, and no more deterrent effect on legislators who enact invalid statutes than on magistrates who issue invalid warrants.497 Finally, the Court has held that the exclusionary rule does not apply if the police conduct a search in objectively reasonable reliance on binding judicial precedent, even a defendant successfully challenges that precedent.498

The Court also applied Leon to allow the admission of evidence obtained incident to an arrest that was based on a mistaken belief that there was probable cause to arrest, where the mistaken belief had resulted from a negligent bookkeeping error by a police employee other than the arresting officer. In Herring v. United States,499 a police employee had failed to remove from the police computer database an arrest warrant that had been recalled five months earlier, and the arresting officer as a consequence mistakenly believed that the arrest warrant remained in effect. The Court upheld the admission of evidence because the error had been “the result of isolated negligence attenuated from the arrest.”500 Although the Court did “not suggest that all recordkeeping errors by the police are immune from the exclusionary rule,” it emphasized that, “[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”501

Herring is significant because previous cases applying the good-faith exception to the exclusionary rule have involved principally Fourth Amendment violations not by the police, but by other governmental entities, such as the judiciary or the legislature. Although the error in Herring was committed by a police employee other than the arresting officer, the introduction of a balancing test to evaluate police conduct raises the possibility that even Fourth Amendment violations caused by the negligent actions of an arresting officer might in the future evade the application of the exclusionary rule.502

For instance, it is unclear from the Court’s analysis in Leon and its progeny whether a majority of the Justices would also support a good-faith exception for evidence seized without a warrant, although there is some language broad enough to apply to warrant-less seizures.503 It is also unclear what a good-faith exception would mean in the context of a warrantless search, because the objective reasonableness of an officer’s action in proceeding without a warrant is already taken into account in determining whether there has been a Fourth Amendment violation.504 The Court’s increasing willingness to uphold warrantless searches as not “unreasonable” under the Fourth Amendment, however, may reduce the frequency with which the good-faith issue arises in the context of the exclusionary rule.505

Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the “causal link” between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.506 In a series of decisions issued over several decades, the Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the Court upheld the admission of an unsigned statement made by a defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own recognizance, and, only then, voluntarily returned several days later to make the unsigned statement.507 Similarly, in its 1984 decision in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because the evidence was seized the next day pursuant to a valid search warrant that had been issued based on information obtained by law enforcement before the illegal entry.508

More recently, in its 2016 decision in Utah v. Strieff, the Court rejected a challenge to the admission of certain evidence obtained as the result of an unlawful stop on the grounds that the discovery of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.509 As a threshold matter, the Court rejected the state court’s view that the attenuation exception applies only in cases involving “an independent act of a defendant’s ‘free will.’”510 Instead, the Court relied on three factors it had set forth in a Fifth Amendment case, Brown v. Illinois,511 to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct: (1) the “temporal proximity” between the two acts; (2) the presences of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.512 On the whole, the Strieff Court, reiterating that “suppression of evidence should be the courts’ “last resort, not our first impulse,”513 concluded that the circumstances of the case weighed in favor of the admission of the challenged evidence. While the closeness in time between the initial stop and the search was seen by the Court as favoring suppression,514 the presence of intervening circumstances in the form of a valid warrant for the defendant’s arrest strongly favored the state,515 and in the Court’s view, there was no indication that this unlawful stop was part of any “systematic or recurrent police misconduct.”516 In particular, the Court, relying on the second factor, emphasized that the discovery of a warrant “broke the causal chain” between the unlawful stop and the discovery of the challenged evidence.517 As such, the Strieff Court appeared to establish a rule that the existence of a valid warrant, “predat[ing the] investigation” and “entirely unconnected with the stop,” generally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.518

474 Among the early critics were Judge Cardozo, People v. Defore, 242 N.Y. 13, 21, 150 N.E. 585, 587 (1926) (the criminal will go free “because the constable has blundered”), and Dean Wigmore. 8 J. Wigmore, A Treatise On The Anglo-American System Of Evidence 2183–84 (3d ed. 1940). For extensive discussion of criticism and support, with citation to the literature, see 1 Wayne R. Lafave, Search And Seizure: A Treatise On The Fourth Amendment § 1.2 (4th ed. 2004).

475 E.g., Stone v. Powell, 428 U.S. 465, 496 (1976) (Chief Justice Burger: rule ought to be discarded now, rather than wait for a replacement as he argued earlier); id. at 536 (Justice White: modify rule to admit evidence seized illegally but in good faith); Schneckloth v. Bustamonte, 412 U.S. 218, 261 (1973) (Justice Powell); Brown v. Illinois, 422 U.S. 590, 609 (1975) (Justice Powell); Robbins v. California, 453 U.S. 420, 437 (1981) (Justice Rehnquist); California v. Minjares, 443 U.S. 916 (1979) (Justice Rehnquist, joined by Chief Justice Burger); Coolidge v. New Hampshire, 403 U.S. 443, 510 (1971) (Justice Blackmun joining Justice Black’s dissent that “the Fourth Amendment supports no exclusionary rule”).

476 E.g., United States v. Janis, 428 U.S. 433, 446 (1976) (deterrence is the “prime purpose” of the rule, “if not the sole one.”); United States v. Calandra, 414 U.S. 338, 347–48 (1974); United States v. Peltier, 422 U.S. 531, 536–39 (1975); Stone v. Powell, 428 U.S. 465, 486 (1976); Rakas v. Illinois, 439 U.S. 128, 134 n.3, 137–38 (1978); Michigan v. DeFillippo, 443 U.S. 31, 38 n.3 (1979). Thus, admission of the fruits of an unlawful search or seizure “work[s] no new Fourth Amendment wrong,” the wrong being “fully accomplished by the unlawful search or seizure itself,” United States v. Calandra, 414 U.S. at 354, and the exclusionary rule does not “cure the invasion of the defendant’s rights which he has already suffered.” Stone v. Powell, 428 U.S. at 540 (Justice White dissenting). “Judicial integrity” is not infringed by the mere admission of evidence seized wrongfully. “[T]he courts must not commit or encourage violations of the Constitution,” and the integrity issue is answered by whether exclusion would deter violations by others. United States v. Janis, 428 U.S. at 458 n.35; United States v. Calandra, 414 U.S. at 347, 354; United States v. Peltier, 422 U.S. at 538; Michigan v. Tucker, 417 U.S. 433, 450 n.25 (1974).

477 United States v. Janis, 428 U.S. 433, 448–54 (1976), contains a lengthy review of the literature on the deterrent effect of the rule and doubts about that effect. See also Stone v. Powell, 428 U.S. 465, 492 n.32 (1976).

478 Stone v. Powell, 428 U.S. at 490, 491.

479 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 416 (1971) (Chief Justice Burger dissenting).

480 Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392 (1920).

481 E.g., Rakas v. Illinois, 439 U.S. 128 (1978); United States v. Padilla, 508 U.S. 77 (1993) (only persons whose privacy or property interests are violated may object to a search on Fourth Amendment grounds; exerting control and oversight over property by virtue of participation in a criminal conspiracy does not alone establish such interests); United States v. Salvucci, 448 U.S. 83 (1980); Rawlings v. Kentucky, 448 U.S. 98 (1980). In United States v. Payner, 447 U.S. 727 (1980), the Court held it impermissible for a federal court to exercise its supervisory power to police the administration of justice in the federal system to suppress otherwise admissible evidence on the ground that federal agents had flagrantly violated the Fourth Amendment rights of third parties in order to obtain evidence to use against others when the agents knew that the defendant would be unable to challenge their conduct under the Fourth Amendment.

482 United States v. Havens, 446 U.S. 620 (1980); Walder v. United States, 347 U.S. 62 (1954). Cf. Agnello v. United States, 269 U.S. 20 (1925) (now vitiated by Havens). The impeachment exception applies only to the defendant’s own testimony, and may not be extended to use illegally obtained evidence to impeach the testimony of other defense witnesses. James v. Illinois, 493 U.S. 307 (1990).

483 Wong Sun v. United States, 371 U.S. 471, 487–88 (1963); Alderman v. United States, 394 U.S. 165, 180–85 (1969); Brown v. Illinois, 422 U.S. 590 (1975); Taylor v. Alabama, 457 U.S. 687 (1982); Utah v. Strieff, 579 U.S. ___, No. 14–1373, slip op. (2016). United States v. Ceccolini, 435 U.S. 268 (1978), refused to exclude the testimony of a witness discovered through an illegal search. Because a witness was freely willing to testify and therefore more likely to come forward, the application of the exclusionary rule was not to be tested by the standard applied to exclusion of inanimate objects. Deterrence would be little served and relevant and material evidence would be lost to the prosecution. In New York v. Harris, 495 U.S. 14 (1990), the Court refused to exclude a station-house confession made by a suspect whose arrest at his home had violated the Fourth Amendment because, even though probable cause had existed, no warrant had been obtained. And, in Segura v. United States, 468 U.S. 796 (1984), evidence seized pursuant to a warrant obtained after an illegal entry was admitted because there had been an independent basis for issuance of the warrant. This rule also applies to evidence observed in plain view during the initial illegal search. Murray v. United States, 487 U.S. 533 (1988). See also United States v. Karo, 468 U.S. 705 (1984) (excluding consideration of tainted evidence, there was sufficient untainted evidence in affidavit to justify finding of probable cause and issuance of search warrant).

484 Stone v. Powell, 428 U.S. 465, 494 (1976).

485 Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357 (1998).

486 The “knock and announce” requirement is codified at 18 U.S.C. § 3109, and the Court has held that the rule is also part of the Fourth Amendment reasonableness inquiry. Wilson v. Arkansas, 514 U.S. 927 (1995).

487 Hudson v. Michigan, 547 U.S. 586 (2006). Writing for the majority, Justice Scalia explained that the exclusionary rule was inappropriate because the purpose of the knock-and-announce requirement was to protect human life, property, and the homeowner’s privacy and dignity; the requirement has never protected an individual’s interest in preventing seizure of evidence described in a warrant. Id. at 594. Furthermore, the Court believed that the “substantial social costs” of applying the exclusionary rule would outweigh the benefits of deterring knock-and-announce violations by applying it. Id. The Court also reasoned that other means of deterrence, such as civil remedies, were available and effective, and that police forces have become increasingly professional and respectful of constitutional rights in the past half-century. Id. at 599. Justice Kennedy wrote a concurring opinion emphasizing that “the continued operation of the exclusionary rule . . . is not in doubt.” Id. at 603. In dissent, Justice Breyer asserted that the majority’s decision “weakens, perhaps destroys, much of the practical value of the Constitution’s knock-and-announce protection.” Id. at 605.

488 Michigan v. DeFillippo, 443 U.S. 31 (1979) (statute creating substantive criminal offense). Statutes that authorize unconstitutional searches and seizures but which have not yet been voided at the time of the search or seizure may not create this effect, however, Torres v. Puerto Rico, 442 U.S. 465 (1979); Ybarra v. Illinois, 444 subject Illinois v. Krull, 480 U.S. 340 (1987), rejecting a distinction between substantive and procedural statutes and holding the exclusionary rule inapplicable in the case of a police officer’s objectively reasonable reliance on a statute later held to violate the Fourth Amendment. Similarly, the exclusionary rule does not require suppression of evidence that was seized incident to an arrest that was the result of a clerical error by a court clerk. Arizona v. Evans, 514 U.S. 1 (1995).

489 United States v. Calandra, 414 U.S. 338 (1974).

490 United States v. Janis, 428 U.S. 433 (1976). Similarly, the rule is inapplicable in civil proceedings for deportation of aliens. INS v. Lopez-Mendoza, 468 U.S. 1032 (1984).

491 468 U.S. 897 (1984). The same objectively reasonable “good-faith” rule now applies in determining whether officers obtaining warrants are entitled to qualified immunity from suit. Malley v. Briggs, 475 U.S. 335 (1986).

492 468 U.S. at 907.

493 468 U.S. at 916–17.

494 468 U.S. at 919, 921.

495 468 U.S. 981 (1984).

496 Illinois v. Krull, 480 U.S. 340 (1987). The same difficult-to-establish qualifications apply: there can be no objectively reasonable reliance “if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws,” or if “a reasonable officer should have known that the statute was unconstitutional.” Id. at 355.

497 Dissenting Justice O’Connor disagreed with this second conclusion, suggesting that the grace period “during which the police may freely perform unreasonable searches . . . creates a positive incentive [for legislatures] to promulgate unconstitutional laws,” and that the Court’s ruling “destroys all incentive on the part of individual criminal defendants to litigate the violation of their Fourth Amendment rights” and thereby obtain a ruling on the validity of the statute. 480 U.S. at 366, 369.

498 Davis v. United States, 564 U.S. ___, No. 09–11328, slip op. (2011). Justice Breyer, in dissent, points out that under Griffith v. Kentucky, 479 U.S. 314 (1987), “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final . . . .” Thus, the majority opinion in Davis would allow the incongruous result that a defendant could prove his Fourth Amendment rights had been violated, but could still be left without a viable remedy. Id. at 2 (Breyer, J., dissenting).

499 555 U.S. ___, No. 07–513, slip op. (2009), Herring was a five-to-four decision, with two dissenting opinions.

500 129 S. Ct. at 698.

501 129 S. Ct. at 703, 702. Justice Ginsburg, in a dissent joined by Justices Stevens, Souter, and Breyer, stated that “the Court’s opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement.” Id. at 706. Justice Ginsburg added that the majority’s suggestion that the exclusionary rule “is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless . . . runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.” Id. at 708. Justice Breyer, in a dissent joined by Justice Souter, noted that, although the Court had previously held that recordkeeping errors made by a court clerk do not trigger the exclusionary rule, Arizona v. Evans, 514 U.S. 1 (1995), he believed that recordkeeping errors made by the police should trigger the rule, as the majority’s “case-by-case, multifactored inquiry into the degree of police culpability” would be difficult for the courts to administer. Id. at 711.

502 See Leon, 468 U.S. 897, 926 (1984) (articulating, in dicta, an “intentional or reckless” misconduct standard for obviating “good faith” reliance on an invalid warrant).

503 The thrust of the analysis in Leon was with the reasonableness of reliance on a warrant. The Court several times, however, used language broad enough to apply to warrantless searches as well. See,e.g., 468 U.S. at 909 (quoting Justice White’s concurrence in Illinois v. Gates): “the balancing approach that has evolved . . . ‘forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment’”; and id. at 919: “[the rule] cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.”

504 See Yale Kamisar, Gates, ‘Probable Cause’, ‘Good Faith’, and Beyond, 69 Iowa L. Rev. 551, 589 (1984) (imposition of a good-faith exception on top of the “already diluted” standard for validity of a warrant “would amount to double dilution”).

505 See, e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990) (upholding search premised on officer’s reasonable but mistaken belief that a third party had common authority over premises and could consent to search); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (no requirement of knowing and intelligent waiver in consenting to warrantless search); New York v. Belton, 453 U.S. 454 (1981) (upholding warrantless search of entire interior of passenger car, including closed containers, as incident to arrest of driver); Arizona v. Gant, 556 U.S. ___, No. 07–542 (U.S. Apr. 21 (2009), slip op. at 18 (the Belton rule applies “only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest”); United States v. Ross, 456 U.S. 798 (1982) (upholding warrantless search of movable container found in a locked car trunk).

506 Utah v. Strieff, 579 U.S. ___, No. 14–1373, slip op. at 5 (2016).

507 371 U.S. 471, 491 (1963).

508 468 U.S. 796, 813–16 (1984).

509 Strieff, slip op. at 1. The state in Strieff had conceded that law enforcement lacked reasonable suspicion for the stop, id. at 2, and the Supreme Court characterized the search of the defendant following his arrest as a lawful search incident to arrest, id. at 8.

510 Id. at 5 (quoting State v. Strieff, 457 P.3d 532, 544 (Utah 2015)).

511 See 422 U.S. 590, 603–04 (1970) (holding that the state supreme court in this case had erroneously concluded that Miranda warnings always served to purge the taint of an illegal arrest).

512 See Strieff, slip op. at 6–9.

513 Id. at 8 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal quotations omitted)).

514 Id. at 6 (noting that “only minutes” passed between the unlawful stop and the discovery of the challenged evidence).

515 Id. at 6–7. The Strieff Court emphasized that it viewed the warrant as “compelling” the officer to arrest the suspect. Id. at 9; see also id. at 7 (similar).

516 Id. at 8.

517 Id. at 9.

518 Id. at 7.

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