Silent Killer: the good faith exception to the Fourth Amendment exclusionary rule

By Patricia Padurean

Aggravating though the criminal justice system can be, it does some things well. If you have had a run-in with our legal system, you know it is a maze of strict rules, time limits, and etiquette.

Watching a trial from the sidelines or CNN makes the process seem byzantine and overly bureaucratic. But it is this way for a reason. We guarantee constitutional protections and by extension justice by following certain procedures. For example, it is not enough to say that a defendant has a right to a speedy trial if we don’t specify what speedy means. This can vary from state to state but often it looks something like this: no more than three days between arrest and arraignment, a trial within 60 days of arraignment. Miss a deadline without first obtaining a time waiver from the defendant and the case is dismissed. (Reality check: this doesn’t happen that often.)

This scenario is what CNN and Fox call “getting off on a technicality.” Never mind that the technicality is the Constitution of the United States.

Given this state of affairs, I’d like to spend a few paragraphs of your busy lives talking about something called the good faith exception to the exclusionary rule and how it contravenes the very nature of constitutional rights.

Before I get to the good faith exception, I should first explain the exclusionary rule. Under the Fourth Amendment, any evidence the police obtains in violation of the Constitution is inadmissible at trial – it must be excluded. Stolen property recovered in a warrantless search, for example. Or drugs found using an invalid search warrant.

That last example is key. Say police suspect that you are dealing drugs. One day they arrest a friend of yours on drug possession charges; while under arrest, your friend says that you and your boyfriend came over and your boyfriend sold your friend pot. So the officers apply for a search warrant of your house, not your boyfriend’s. Well, without getting too far adrift into search and seizure law, there simply is not enough tying your friend’s statement to your specific residence. He never mentioned that you had drugs on you. He never said that he bought drugs at your house. In fact, he specifically said that your boyfriend handed him the drugs. It might be reasonable to assume that you and the boyfriend are in it together, but that still doesn’t create a link to your residence. But police get their warrant, search your house, and find some drugs. Bam. Done deal.

Or is it? Technically, their warrant is invalid because it didn’t establish sufficient nexus between the drug activity and your house. If a court finds that the warrant was invalid, then all the drugs found at your house become inadmissible under the exclusionary rule. And with the drugs goes the prosecution’s case against you. Fly back home, little sparrow!

Are you actually a drug dealer? Let’s say you are. Let’s say you and your boyfriend really do have a pot operation going. Is it fair that your case might get dismissed simply because the police didn’t get a valid search warrant?

Yes it is. This rule may have protected your sorry guilty ass, but we have to follow it to also protect everyone else’s right to privacy from police invasion. If we let one invalid warrant go, then what’s to stop invalid warrants from becoming a new general practice? What’s to protect perfectly innocent people’s houses from unlawful searches? And anyway, until a jury finds you guilty, you are still presumed innocent, no matter how bad the case against you looks.

In all likelihood, however, you would not get off. This is where the good faith exception comes in. The good faith exception to the exclusionary rule goes like this: if police officers had a reasonable good faith belief that the warrant they were executing was valid, even if the search warrant is later found to have been legally defective, the illegally seized evidence is still admissible.

So let’s say Officers Tweedledee and Tweedledum interview your friend with the pot, write up that invalid search warrant themselves, and execute it themselves. You later challenge the warrant as invalid because it didn’t establish sufficient nexus between your friend’s purchasing of the pot and your house. You win, the court finds the warrant invalid. Well, all those drugs the officers found are still coming in. Why? Because Tweedledee and Tweedledum had a “reasonable good faith belief” that the warrant they applied for and executed was valid. They followed their hearts and were wrong but you’re still getting screwed.

Normally, in the criminal justice system, breaking rules and procedure because you were following your [reasonable, good faith] heart is not enough. Because, again, the procedures are there to protect constitutionally guaranteed rights and freedoms. In this case, however, officers get a free pass.

The landmark good faith exception case, United States v. Leon, justifies this flagrant loophole in constitutional rights by saying 1) if we exclude the evidence, we’re punishing the police officers rather than the magistrates issuing faulty search warrants; and 2) that “indiscriminate application of the exclusionary rule — impeding the criminal justice system’s truth-finding function and allowing some guilty defendants to go free — may well generate disrespect for the law and the administration of justice.” (emphasis added)

First, I don’t personally take too much issue with punishing both the officers and the magistrate who, together, violated a person’s constitutional rights. But more importantly, the second point goes against the very ethos of the criminal justice system. We presume defendants innocent until proven guilty because those who molded the system (our venerated Framers) considered it a worse injustice to occasionally imprison an innocent person than to occasionally let a guilty person go free.

I’d like to suggest things we can do to put an end to the good faith exception to the exclusionary rule. Sadly, the only way it will go away is if the Supreme Court reverses its Leon decision and, along with it, all the case law that followed Leon. So, what can I say? Don’t do drugs. Watch your back. Know your rights.

One thought on “Silent Killer: the good faith exception to the Fourth Amendment exclusionary rule”

  1. The other frightening part of that phrasing is that the exclusionary rule may “generate disrespect for the law.” Note the imagery there: the plebes might take advantage. Alternatively, the Leon decision generates disrespect for the law among magistrates and the police, who (as the Framers were keen on) have dramatically fewer incentives to respect the rules than the plebes.

    The Leon decision does in fact generate disrespect for the law – disrespect for constitutional law among judges and the police.

    It undermines the rule of law (rule of rules) by making the enforcement of constitutional protections discretionary (good faith? how about “any ol’ arbitrary belief bubba has”) and circumstantial, which is (as you point out) the exact opposite of the purpose of a constitution — to rein in the inevitable abuses of states. Thank God we have a Supreme Court to chip away at that constitution and re-legitimate abuse.


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