May 2014 | Vol. 9, No. 1
Exploring the Good Faith Exception to the Exclusionary Rule
by Eric Snow
Investigator
Montgomery County Sheriff's Office
E-mail: snowes@montgomerycountyva.gov
Decision and actions of law enforcement officers are often made in a split second but are evaluated, criticized, and debated by lawyers, judges, politicians, and the media for weeks, months, or even years. Consider how the decision of Officer Hymon to fatally shoot a fleeing juvenile who had merely stolen a television[1] or the actions of Detective McFadden to detain and frisk several suspicious acting men without probable cause[2] have influenced law enforcement. While it is unlikely that the average officer will have a case proceed to the United States Supreme Court, these cases demonstrate why it is important for law enforcement professionals to continuously educate themselves about changes in laws, procedures, and case decisions. The courts have established a concept known as the good faith exception when evaluating errors by law enforcement officers and several situations officers face are addressed within this article.
Relying on search warrants
The United States Supreme Court apparently understands that mistakes will be made by law enforcement officers and, at least in certain cases, is willing to overlook these errors and to allow erroneously obtained evidence to be used for criminal prosecution. The exclusionary rule, which prevents illegally obtained evidence from being used in court, was judicially created, as opposed to being created explicitly by the Constitution, and is intended to deter illegal police conduct. Therefore, it stands to reason that police officers should not be penalized for innocent errors since imposing the exclusionary rule is unlikely to prevent unlawful conduct when the officer did not intentionally violate the law. In two cases decided in 1984, the Court ruled that evidence obtained pursuant to a search warrant that was later determined did not contain sufficient probable cause[3] and evidence obtained pursuant to a search warrant that had errors on the face of the warrant[4] could be utilized in court. It is important to note that each of these cases involved searches conducted pursuant to a search warrant. These cases (and others) create limited good faith exceptions to the exclusionary rule.
In U.S. v. Leon, the Supreme Court allowed the prosecution to use evidence that had been obtained during a search with a warrant that should not have been issued (because probable cause to think evidence would be found at the place searched was lacking when the warrant was issued). Justice White of the United States Supreme Court provided guidance for when this exception should be applied. He stated that the exclusionary rule will still apply and evidence will be excluded in the following cases: (1) where a warrant so blatantly lacks probable cause that the officer could not reasonably believe it valid, (2) where a warrant is “facially deficient” and lacking on the face of the warrant, (3) where the judicial officer issuing the warrant was intentionally misled by information the requesting officer knew to be false, or (4) when issuing judicial officers act outside their judicial role.[5]
The first exception to the Leon Rule (the good faith exception does not apply where a warrant so blatantly lacks probable cause that the officer could not reasonably believe it valid) appears relatively easy to understand on the surface. However, consider the case of United States v. Hove,[6] where an officer investigating a series of bomb threats suspected the victim’s ex-wife was responsible for the threats. The officer obtained information that the suspect was likely living with her father and conducted surveillance to confirm the information. He applied for and was granted a search warrant for the residence of the suspect’s father, but failed to include in the affidavit any information indicating why the suspect was likely residing there. The record indicates the officer relayed these facts to his stenographer, but they were not in the final five page affidavit when it was reviewed by a prosecutor or issued by a magistrate. The United States Court of Appeals for the 9th Circuit ultimately determined the affidavit was sufficiently lacking in probable cause that the officer should have known the warrant was deficient.
The second exception to the Leon Rule (the good faith exception does not apply when a warrant is “facially deficient” and lacking on the face of the warrant) is also relatively easy to comprehend and evaluate. In United States v. Leary,[7] a federal customs agent began an investigation into a business suspected of improperly exporting items. The agent prepared an affidavit and was granted a search warrant for business records and other items relating to operations of the business. Although the investigation involved only a single transaction to a certain group of companies, the warrant was issued generally for business records for the entire company and as a result the agents seized many items outside the scope of the investigation. The United States Court of Appeals for the 10th Circuit concluded the affidavit lacked probable cause and the description of the items to be searched for was too broad and generic. Furthermore, the court concluded that a reasonable police officer should have realized that the warrant’s description of things to be seized was too broad. Consequently, it determined the exclusionary rule applied and the good faith exception did not.
Also consider Groh v. Ramirez,[8] where BATFE Special Agent Groh prepared an affidavit and warrant to search for weapons at the Ramirez home. The affidavit included the items to be searched for, but the warrant did not. The warrant was signed by a magistrate and the search was conducted. Ramirez sued Special Agent Groh for a 4th Amendment violation based solely on the error on the search warrant. The Court held the search was unreasonable and the good faith exception did not apply, because any officer reading the warrant should have realized that the warrant failed to specify the items for which the officer executing the warrant could search (as required by the Fourth Amendment). Additionally, the Court ruled that Special Agent Groh was not covered by qualified immunity and could be sued by Ramirez.
In a similar case to Groh v. Ramirez, the Court decided Messerschmidt v. Millender.[9] Police conducted an attempted murder investigation involving a suspect named Bowen, who was a foster child of the Millender family. The case involved a sawed-off shotgun. During the course of the investigation, Detective Messerschmidt learned that Bowen lived with the Millenders, was involved with two gangs, and had a history of violence. Messerschmidt completed an affidavit and a magistrate issued a search warrant for all weapons, not just those belonging to Bowen, and for evidence of gang membership. Millender sued Messerschmidt for violating his civil rights and claimed the warrant was unreasonable because it was overbroad by including weapons other than the shotgun and evidence of gang membership. The Court ruled the officer was entitled to qualified immunity and could not be sued. The difference between the Court’s decision in this case versus the Groh case appears to be the type of error committed by the officer. In the Groh case, the Court concluded the officer should have easily seen the error on the face of the warrant and had it corrected prior to execution. However, in the Messerschmidt case, the Court concluded the issue was not a simple clerical error and applied the good faith exception.
The third exception to the Leon Rule (the judicial officer issuing the warrant was intentionally misled by information the requesting officer knew to be false) clearly does not involve innocent conduct on the part of the officer. In United States v. Baxter,[10] a police officer began a drug investigation after receiving an anonymous tip. The officer conducted a partial follow-up investigation, but did not determine the reliability of the informant. He prepared an affidavit where he listed the source of the information as a “confidential informant” rather than an “anonymous tipster” and misled the judge. The United States Court of Appeals for the 6th Circuit determined the exclusionary rule applied and the good faith exception established in Leon did not.
The fourth exception to the Leon Rule (in which issuing judicial officers act outside their judicial role) is somewhat rarer than the other categories. In Lo-Ji v. State of New York,[11] an investigator purchased two adult films from a business and viewed them to determine they violated a state obscenity law. The films were then shown to a Town Justice (the equivalent of a magistrate), who also concluded the items were obscene. The investigator applied for a search warrant and the Town Justice issued a warrant to search for "The following items which the Court independently has determined to be possessed in violation [of law]", but left out the specific items. The Town Justice then accompanied the investigators on the search. Upon completion of the search, the seized items were inventoried and then the search warrant was completed by the Town Justice to update the items to be searched for. The United States Supreme Court determined the actions of the Town justice were improper and outside the scope of his authority. They determined the exclusionary rule applied and the good faith exception did not. If the police are involved in this kind of situation in the future, they should know that the magistrate has exceeded his or her authority and has therefore abandoned his or her proper judicial role.
Relying on statutes
In addition to searches conducted with search warrants, the Court has also addressed law enforcement officers’ good faith reliance on statutes later determined to be unconstitutional. For example, in Michigan v. DeFillippo,[12] a city ordinance allowed the police to stop persons who an officer has reasonable cause to believe are acting suspiciously and to require them to identify themselves. The suspect was arrested for failing to properly identify himself and drugs were located subsequent to his arrest. Although the ordinance was later determined to be unconstitutional, the Court applied the good faith exception and allowed the drugs to be utilized against the defendant at trial.
Relying on prior case law
The Court has also accepted reliance on prior case law as a good faith exception. In Davis v. United States,[13] an officer conducted a traffic stop and arrested the passenger after he provided false information about his identity. The officer found an illegal firearm in the interior of the vehicle during a search conducted incident to arrest pursuant to New York v. Belton,[14] which allowed for a complete search of the passenger compartment of a vehicle when one of the occupants was arrested. The arrestee appealed his conviction and while his appeal was pending the Court decided Arizona v. Gant,[15] which said a search of the interior of a car incident to arrest could only be conducted if evidence of the violation was likely to be located in the car or if the arrestee could reasonably retrieve a weapon (because the arrestee was unsecured and within reaching distance of the vehicle). The Court held in Davis that the officer was relying on current case law as it stood at the time of the offense and the good faith exception applied so the firearm could be used at trial.
Relying on records/reports
The Court has also applied the good faith exception to an officer’s reliance on records and reports. In Arizona v. Evans,[16] an officer conducted a traffic stop and arrested the driver on the authority of an outstanding warrant. During a search incident to arrest, the officer located drugs in the vehicle and charged the arrestee. It was later determined the warrant had been recalled, but not removed from the computer database. The Court determined the officer relied upon the computer “hit” in good faith and allowed the evidence at trial.
The Court’s decision in Evans was reaffirmed by their decision in Herring v. United States.[17] In Herring, an arrest was made based on a warrant that should have been removed from a police database five months prior. The key difference between the cases was that Evans involved a record-keeping error by a court clerk, whereas Herring involved a record-keeping error by an employee of the police department. The Court ruled the good faith exception still applied since the error of the employee was unintentional and the officer’s reliance on the warrant was genuine and innocent.
Relying solely on the officer
In each of the situations discussed previously the Court has evaluated the actions of law enforcement officers when they involve a third party – either a search warrant issued by another individual, a statute enacted by others, or a recalled warrant issued and not properly removed by another. These cases have not involved officers’ mistakes based on their own actions.[18] A common example is when an officer thinks he or she has probable cause to search without a warrant, but it is later determined that probable cause was lacking. The Court has not decided this issue to this point, but perhaps their inaction on it should be viewed as action. In other words, by failing to specifically provide an “officer initiated good faith exception” the Court may be saying there is not one and that they do not intend to establish one.
A few final words…
Courts have established good faith exceptions to the exclusionary rule with the understanding that certain innocent errors will be committed by officers. The crux of the exception is that the officer’s conduct must be truly innocent and not committed recklessly or knowingly. Another glaring aspect is that the Court will not accept errors of carelessness or laziness by officers under this exception. Taking the time to proofread affidavits, check the face of any issued warrant for clerical errors, or conducting a thorough investigation prior to obtaining a search warrant will not only help prevent evidence from being excluded at trial, but may also save an officer from a lawsuit. The good faith exception should be an afterthought to officers rather than a standard operating procedure. Officers should not enter a non-exigent situation with a question about their actions and the aim that the exception will cover them, but rather should take steps to satisfy the question, by either consulting with the prosecutor or other officers, before action is taken.
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1] Tennessee v. Garner, 471 U.S. 1 (1985).
[2] Terry v. Ohio, 392 U.S. 1 (1968).
[3] United States v. Leon, 468 U.S. 897 (1984).
[4] Massachusetts v. Sheppard, 468 U.S. 981 (1984).
[5] Whitebread, C.H. & Slobogin, C. (2008). Criminal Procedure: An Analysis of Cases and Concepts (5th ed.), Foundation Press: New York, NY.
[6] United States v. Hove, 848 F.2d 137 (9th Cir.1988).
[7] United States v. Leary, 846 F.2d 592 (10th Cir. 1988).
[8] Groh v. Ramirez, 540 U.S. 551 (2004).
[9] Messerschmidt v. Millender, 565 U.S. _____ (2012).
[10] United States v. Baxter, 889 F.2d 731 (6th Cir. 1989).
[11] Lo-Ji v. State of New York, 442 U.S. 319 (1979).
[12] Michigan v. DeFillippo, 443 U.S. 31 (1979).
[13] Davis v. United States, ___ U.S. ___ (2011).
[14] New York v. Belton, 453 U.S. 454 (1981).
[15] Arizona v. Gant, 556 U.S. 332 (2009).
[16] Arizona v. Evans, 514 U.S. 1 (1995).
[17] Herring v. United States, 555 U.S. 135 (2009).
[18] Whitebread and Slobogin, §2.03(C)(4).