Good Faith and the Fourth Amendment: The Reasonable Exception to the Exclusionary Rule

The Fourth Amendment has been debated frequently during the last several years, as police and intelligence agencies in the United States have engaged in a number of controversial activities. The federal government has conducted bulk collection of Americans’ telephone and Internet connections as part of the War on Terror. And  there have been a number of highly-publicized police-citizen encounters in which the police ended up shooting a civilian.

What should be clear by now is that advancing technology and the many threats that face society add up to a brew in which the Fourth Amendment will continue to play a central role.

The Fourth Amendment is understood as placing restraints on the government any time it detains (seizes) or searches a person or property. The Fourth Amendment also provides that “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.” The idea is that to avoid the evils of general warrants, each search or seizure should be cleared in advance by a judge, and that to get a warrant the government must show “probable cause”—a certain level of suspicion of criminal activity—to justify the search or seizure.

The way that the Fourth Amendment most commonly is put into practice is in criminal proceedings. The Supreme Court decided in the mid-twentieth century that if the police seize evidence as part of an illegal search, the evidence cannot be admitted into court. This is called the “exclusionary rule.”

It is controversial because in most cases evidence is being tossed out even though it shows the person is guilty and, as a result of the police conduct, they might avoid conviction. “The criminal is to go free because the constable has blundered,” declared Benjamin Cardozo (a famous judge and ultimately Supreme Court justice). But, responded another Supreme Court justice, Louis Brandeis, “If the government becomes the lawbreaker, it breeds contempt for the law.”

One of the difficult questions today is what constitutes a “search”? The Fourth Amendment prohibits both “unreusonable searches and ‘seizures” and introduces the requirement of probable cause. Although the term “probable cause” has a certain legalistic ring to it, it did not arrive complete with an established definition or explanatory annotation. Since its inherent lack of precision is coupled with the need to apply it to varying factual situations, courts construing this provision must ponder not only what was considered probable cause when the amendment was adopted, but also how that concept may be fairly applied to the circumstances of subsequent generations.

Looking back to the Law cases of the nineteenth century for the development of the doctrine of probable cause, there was paucity of cases both in the Supreme Court and the lower federal courts. There are several reasons for this scarcity. First, the right to appeal to the Supreme Court in criminal cases was not granted until 1891. Although this did not preclude Supreme Court consideration of probable cause, it did confine that consideration to civil cases. Revived in “Good Faith and the Fourth Amendment: The Reasonable Exception to the Exclusionary Rule”  those civil cases are significant to the development of probable cause and illuminate contemporary thought on the issue, which subsequently developed, it adheres to rules of reasonable justification which antedate the terminology “probable cause”.

Probable cause makes the conduct lawful. But, the rule is there to Street Law enforcement away from actions that would violate Citizens rights. In Fourth Amendment cases, most good faith violations concern the failure to meet the requirement of the doctrine of probable cause. Two basic types of violation are possible. First, an officer may make a judgmental error concerning the existence of facts sufficient to constitute probable cause. Such cases may be characterized as examples of “good faith mistake.” Second, an officer may rely upon a statute which is later ruled unconstitutional, a warrant which is later invalidated, or a court precedent which is later overruled. In each of these cases, the officer may be deemed to have committed a “technical violation.” Arguments concerning the good faith doctrine have tended to concentrate upon its relationship to the exclusionary rule.

The Doctrine of Probable Cause.

When the founding fathers elevated the principle of reasonable search and seizure to “constitutional instead of … merely legal significance,”‘ they simultaneously engendered an unending constitutional debate over the scope of the restrictions imposed on the government.

As Professor Amsterdam has noted, the Bill of Rights is a profoundly antigovernment document which must often be seen by those primarily concerned with crime control as thwarting necessary means to legitimate objectives.

Though no state conditioned ratification of the constitution on a bill of rights, several states came close, and the issue almost prevented the constitution from being ratified. Some anti-federalists continued to contest this after the constitution had been ratified and threatened the entire nation with another constitutional convention. This would likely have been far more partisan than the first. Madison (The father of Bill of Rights) objected to a “specific bill of rights” for several reasons: he thought it was unnecessary,since it purported to protect against powers that the federal government had not been granted; that it was dangerous, since enumeration of some rights might be taken to imply the absence of other rights.

There is no doubt that this result was intended. The purpose of the Bill of Rights was to place certain “great rights” beyond the power of any branch of government to subvert them for the alleged good of the people.

The Fourth Amendment, in particular, responded to the use in the colonies of general warrants granting unrestricted powers to search. Although by 1789 such warrants had been condemned not only in the new states but also in England, the states were not satisfied with a constitution which lacked specific protection against general warrants and demanded the security of an explicit guarantee in the Bill of Right.

Going forward the idea of probable cause as a reasonable ground of suspicion was also voiced by Justice Washington’s charge to the jury as Circuit Justice in Munns v. De Nemours.” In response to his own query as to the meaning of the term, Washington did not merely answer “a reasonable ground of suspicion,” but went on to define it further as “supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief, that the person accused is guilty of the offence with which he is charged.”‘ ” This formulation clearly echoes the “reasonable man” standard dominating the law of torts, a standard which emphasizes prudent action under the circumstances.” Not confined to use in the federal courts, the definition also was applied by state courts which closely followed the language in Munns. The early cases involving technical violations, like those defining probable cause, may be directly linked to modem criminal doctrines.

In our time, the increase in the number of justices committed to fidelity to law on state benches has several good consequences. The first is to enlarge the farm team for future Supreme Court justices. The second advantage is to make it more likely that state courts will provide sound interpretations of their own rights provisions, even if the right at issue is similar on its face to a provision in the federal Bill of Rights. Justice William Brennan trumpeted the need for such independence in famous article, State Constitutions and the Protection of Individual Rights. He was absolutely right that states have no obligation to follow the federal lead in this context and have the duty to give full force to their own state constitutional rights. The difficulty is that Brennan wanted these provisions to be just additional sources for living constitutionalism to reach the results he thought just, at the time that philosophy was losing adherents on the Supreme Court

Good faith doctrine.

Unlike technical violations always involving authoritative pronouncements which establish a “reasonable basis” for believing that there is probable cause, good faith mistakes involve judgmental error which may or may not have been reasonable. For instance, a policeman may possess undisputed facts concerning a suspect and be convinced by those facts that he has probable cause to arrest. Those facts may indeed overwhelmingly establish probable cause, and if that is so, the arrest will not be vulnerable to challenge. However, they might also be so weak that no reasonable officer would ever view them as.establishing probable cause. In such cases, no amount of good faith on the part of the officer would be sufficient to meet the second requirement of the good faith exception.

The cases to which the good faith exception would apply lie somewhere between these two extremes. They include situations where the officer acted as a reasonable officer would and should act in similar circumstances, but where courts have ultimately determined that in their view the officer was mistaken. Justice White argued that in such cases the exclusion of evidence will have no deterrent effect, because officers doing their duty will à ct the same way in similar future cases.

Both deterrence and judicial integrity were used as justifications for the holding, however, the authority for imposing the rule on the states was that it was an indispensable part of the fourth amendment. Interestingly, Justice White also contrasted the treatment of good faith in criminal suppression cases with that in civil damage cases. He pointed out that an officer is excused from civil liability both when he has acted under a statute which he reasonably believed to be valid but which was later held unconstitutional, and when he has mistakenly but reasonably believed that he had probable cause for an arrest.

In examining good faith mistake, it is necessary to return to actions grounded in tort. Under tort law, two types of concessions are generally made to the good faith or proper motivation of a party who causes an injury. First, although he may actually be held liable for his wrongful actions, a wellmeaning party is likely to escape the imposition of punitive damages.’ Second, a wellintentioned party, by definition, will not provide the requisite element of intentional wrongdoing or malice that is required to sustain certain causes of action. Both of these concessions to good faith error are illustrated by the civil cases dealing with unintentional mistakes as to the ixistence of probable cause. In the context of punitive damages, Murray v. Schooner Charming Betsys presents an initial treatment of good faith error by Chief Justice Marshall.

In Charming Betsy, an errant captain who without probable cause had seized a ship was protected from the imposition of punitive damages by what amounted to good faith. Because the circumstances of the case produced a conviction in the Court that the captain had “acted upon correct motives from a sense of duty,” the fact that he trusted suspicions too “light” to constitute probable cause did not result in added damages.

Although the Court affirmed compensation for actual damages, t0 the violation of constitutional rights did not in itself command a remedy. In fact, the idea of redress for the unlawful seizure does not appear to have been considered by Marshall. Not unlike modem juries hearing claims against police officers, the Chief Justice was primarily concerned that a public officer attempting to do his duty might be subjected to an oppressive judgment.

An officer who acted in good faith could fare equally well in malicious prosecution cases. Because malice was required in addition to an absence of probable cause, if the officer could establish that he acted upon proper motivation, he could escape liability for his unlawful conduct. The law governing malicious prosecution can thus be reduced to three equations: First, no probable cause plus risalice equals sanction; here both elements required to sustain the cause of action are present. Second, probable cause plus malice equals no sanction; here the existence of probable cause makes the conduct lawful.

Although lack of malice is not quite the same as good faith, it is sufficiently analogous to permit a direct comparison of these equations with the principles which govern the imposition of the sanction of exclusion in cases of search and seizure. The formulae governing the relationship between probable cause and good faith in search and seizure cases can be established by substituting a lack of good faith for malice in the original equations:

First, no probable cause plus no good faith equals sanction; the evidence is excluded. Second, probable cause plus no good faith equals no sanction; probable cause makes the conduct lawful. Third, no probable cause plus good faith equals sanction; at present, the exclusionary rule is applied in the absence of probable cause notwithstanding the officer’s good faith.

It is only in the third equation that the treatment of motivation in search and seizure cases differs from that in malicious prosecution cases, and it is precisely here that the proposed good faith exception to the exclusionary rule would work a change that would bring them into total conformity. Under the good faith exception, no probable cause plus good faith would equal no sanction, that is, no exclusion of evidence obtained through unlawful search or seizure. As in malicious prosecution cases, proper motive would bar the imposition of sanctions for unlawful acts.

Arguments concerning the good faith doctrine have tended to concentrate upon its relationship to the exclusionary rule. This is understandable since the good faith doctrine makes certain debatable assumptions concerning the rule’s rationale, goals and efficacy. Ultimately, however, the proposed good faith exception must be examined and judged in light of the requirements of the Fourth Amendment. The good faith exception is designed to apply to situations in which there is a good faith belief that constitutional requirements are being met. It is not meant to encompass situations, where intentional violations are motivated by a desire to achieve salutory law enforcement goals.

The impact of the imposition of the exclusionary rule upon the states was not immediately apparent. However, throughout the sixties it became increasingly evident. Much of the doctrinal reassessment of the 1970’s has been an attempt to alleviate the pressures on the criminal justice system created by coupling a liberal interpretation of the Fourth Amendment with an expansive application of the exclusionary rule. However, the Warren Court itself began a modest accommodation to the needs of law enforcement as early as the mid-1960’s. One of its steps which affected the law concerning probable cause and good faith- was its confirmation of the preferenqe to be granted to searches under warrants.

The practical result of this philosophy is to validate seizures under doubtful warrants and to admit evidence which might well have been excluded had there been no warrant. This is conceptually similar to applying a good faith exception to seizures based upon a warrant which is subsequently held invalid, and it is functionally identical.

In most cases where the facts could reasonably support a good faith belief, the court is unlikely to have anything before it other than the officer’s assurance that he was convinced he had probable cause. Such testimony, whether truthful or perjured, is almost impossible to refute. Consequently, the most important criterion for use of the good faith test will be the reasonableness of the officer’s belief when judged on the objective facts.

It has been shown that since early in the nation’s history not every violation of the Fourth Amendment has resulted in a remedy or sanction. For reasons, criminal cases concerned with the relationship between good faith and the Fourth Amendment did not arise during the nineteeth century. Thereafter, the suppression doctrine and expanded criminal jurisdiction made the issue a logical one; however, there was no serious consideration of the effect of good faith until the 1970’s.

There are several possible explanations for this apparent judicial oversight. The first is that whenever the Court contemplated the issue of good faith, it asked the wrong question. A second explanation for the oversight is that the Court was not yet motivated to attempt to curtail the exclusionary rule. These two explanations were probably responsible for the initial neglect of good faith. A third explanation, though, emerges as the likely reason for continued inattention to the doctrine. The theoretical basis for the exclusionary rule has been mutable and elusive almost since the rule’s conception.

Constitutional scholars continue to explore its theoretical underpinningss. The viability of a good faith exception is greatly influenced by this theoretical basis. “If exclusion is considered a constitutional right, the Court would have a constitutional duty to uphold it and could not dispense with it simply because of good faith”. For that reason, it was important for the Court to establish another rationale for exclusion prior to proposing a good faith exception.

Source: Edna F. Ball, Good Faith and the Fourth Amendment: The Reasonable Exception to the Exclusionary Rule, 69 J. Crim. L. & Criminology 635 (1978).

Good Faith, New Law, and the Scope of the Exclusionary Rule: research by Orin S. Kerr at The George Washington University Law School, suggests that “the exclusionary rule, deters constitutional violations by creating an environment for appellate decision-making in which constitutional errors can be corrected”. He argued that – the costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned caselaw exceed its costs, and the rule therefore should be retained.

An important theme in Fourth Amendment law these days is the rights/remedy gap. Over the past few years, courts have interpreted the Fourth Amendment broadly in some interesting ways. But when they have, a broad “good-faith exception” kicks in and takes away any remedy for the violation that results from the court’s broad interpretation. “The result makes a lot of high-profile Fourth Amendment litigation mostly prospective.

It’s often clear at the outset that the defendant will lose eventually. The litigation is mostly about whether the defendant will lose on the right or lose on the remedy, with the difference being the prospective application of the rule” Orin S. Kerr on Rodriguez v. United States, handed down Thursday by the Eighth Circuit.


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