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.

Let’s Talk About Sex (Offenders)

By Marc Allen

First, let’s put some things on the table. There is wide consensus that sexual assault is under reported. There is some disagreement about just how under reported sexual assault among adults is (and some controversy about how it is defined and measured), but there are good estimates that only about a tenth of sexual abuse against children is ever reported. Abuse against children is especially heinous because of the lifelong harm it can inflict on the survivors and the subsequent costs it imposes on society.

Now, let’s talk about one hugely counterproductive way to deal with sexual assault: public sex offender registries.*

Public registries started appearing in the early 1990s and became ubiquitous, with the help of federal legislation, by the early 2000s. Since then, both the feds and the states themselves have slowly been expanding their registries and adding restrictions to registrants.

There have been a number of good pieces in the last few years critical of public registries. HereHere. And here. But public registries remain popular. Some states have expanded their registries in the last decade and/or added additional restrictions to registrants.

You can imagine why this ratcheting upwards keeps happening.  Being pro sex offender isn’t a terribly popular political stance.  Take geographic bans for example. Once registrants are banned from living or loitering within 500 feet of a school, it’s easy and good politics to to expand 500 feet to 1000 feet (or even 2500 feet).  After that, it’s easy to add daycares, parks, churches, and Chuck E Cheese’s to the list of protected places.

The end result of these geographic bans is that large portions of cities become off-limits.  Densely populated areas are especially bad. Here’s a map of the city of Grand Rapids, blue areas are within 1000 feet of a school, red areas are within 1000 feet of a day care:

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This is crazy for a couple of reasons.  First, there’s no data showing that these kind of “school safety zones” have had any effect on the rates of sexual violence committed against school age children.  Most sexual assaults against children are committed by family or friends.  These geographic bans are based on stereotypes and misplaced fears.

Second, as the map above shows, these policies prevent registrants from living or loitering in huge portions of cities.  Which, turns out, is a good way to make someone more likely to recommit a crime.  When offenders are released from prison, they often have no place to go because friends or family members willing to put them up live within one of these exclusion zones.  Stress and instability are huge drivers of recidivism, and registries create both.  Law and economics researchers have found that public registries can actually make registrants more likely to recommit sexual crimes and consequently decrease public safety.

These safety zones are just one of many requirements with little to no empirical justification.  Some registrants are also required to register for life.  This means that a 18 or 19 year old convicted of certain offenses will face reporting requirements, public monitoring, fees, and housing restrictions into their 70s.  As with other crimes, the likelihood that someone will recommit decreases with age, such that the likelihood of an octogenarian recommitting a sexual offense is only slightly higher than him medalling in Olympic ice dancing. Besides the stats, as Human Rights Watch points out, applying these lifelong restrictions to teenage offenders is wildly unjust.

Anyone who takes sexual violence seriously should be pissed.  The feminist/anti-sexual violence community has common cause here with civil libertarians and the good government crowd.  Public registries allow for the kind of othering that makes people feel like they’ve done something about a problem. In reality we’re ignoring the problem. Public registries are the worst of all worlds. They’re a cop out, they’re expensive, and they’re dumb.

*I’m distinguishing public sex offender registries, where offenders faces are posted on a public website (often with their addresses and places of work), from private registries that only law enforcement agencies can access.  There is some data suggesting that the latter actually do have an effect on recidivism rates, which doesn’t necessarily mean they’re a good idea, but at least puts them in the arena of sane policies we can debate.