Author: Cameron Downer, Associate Member, University of Cincinnati Law Review
On June 16, 2011, the United States Supreme Court in Davis v. United States expanded the application of the good-faith exception to the Fourth Amendment exclusionary rule.[1] The Court held that the exclusionary rule does not apply to Fourth Amendment violations when officers act in objectively reasonable reliance on binding precedent that is later overturned.[2]
The ambiguous holding in Davis failed to give a bright-line rule to help courts determine whether the good-faith exception should apply. Instead of applying the more equitable narrow interpretation, some courts are applying an overly broad interpretation of Davis that allows officers to pick and choose what law to rely on in justifying their police practices. That interpretation of Davis has led to the inequitable adjudication of Fourth Amendment violations and is converting Fourth Amendment rights into a “mere form of words.”[3] As a consequence, with the development and use of new police technology, the broad interpretation of the exclusionary rule will leave people vulnerable to Fourth Amendment violations without the right to a remedy.
The Split Between Interpretations
In Justice Breyer’s dissent in Davis, he argued that the Court’s holding had problems with workability and failed to address how different kinds of precedents do, or do not, count as “binding precedent.”[4] Further, he discussed how the new rule would lead to the inconsistent application of new constitutional rules.
Since Davis, courts have struggled to apply the good-faith exception with any uniformity. Currently, courts are divided between applying a narrow and broad interpretation. The narrow interpretation construes the good-faith exception to only apply in cases where there is binding appellate precedent sanctioning the particular police practice at issue. On the other hand, the broad interpretation construes the good-faith exception to apply even in cases where non-binding precedent exists that condones the officer’s conduct. In the aftermath of Davis, Justice Breyer’s concerns have been realized.
Federal Courts
In United States v. Lee,the Eastern District of Kentucky applied the narrow interpretation and held that out-of-circuit precedent from the Fifth, Seventh, Eighth, and Ninth Circuits did not justify the police practice that was unsettled in the Sixth Circuit.[5] Likewise, in United States v. Katzin, the Third Circuit held that allowing officers to rely on out-of-circuit precedent “would eviscerate the notion that clear and well-settled precedent should control and thus contradicts the basic principles of stare decisis.”[6]
In contrast, in United States v. Rose,the Massachusetts District Court applied the broad interpretation holding that the absence of First Circuit precedent did not affect the application of the good-faith exception because there was a consensus among out-of-circuit lower courts authorizing the police practice.[7] Similarly, in United States v. Lopez, the Delaware District Court held that even though no binding precedent existed, there was no circuit split in regard to the police practice so the issue was arguably “settled.”[8] This split in federal courts makes the right to a remedy for Fourth Amendment violations dependent on where the person lives, rather than the actual violation.
Ohio State Courts
The split over interpretations has not limited itself to the federal courts. In Ohio, the Eighth and Second Appellate Districts have explicitly adopted the narrow interpretation and rejected the argument to extend the exception to an officer’s reliance upon persuasive, non-binding authority.[9] The Twelfth Appellate District, however, rejected the narrow interpretation and instead held that “a case-by-case approach examining the culpability and conduct of law enforcement is more appropriate.” To do so, the court analyzed whether the police acted with deliberate, reckless, or gross negligent disregard for the defendant’s Fourth Amendment rights.[10] Unsurprisingly, other states’ courts have also been unable to come to a consensus on whether to apply the narrow or broad interpretation of Davis.[11]
Increasing Exposure to Fourth Amendment Violations
As a society, we value our privacy and right to be free of unreasonable searches and seizures, evidenced by the Fourth Amendment. As such, we want police to rely on caselaw that expressly authorizes a search and not to rely on gaps and ambiguities in caselaw that push the Fourth Amendment envelope.[12] Applying the broad interpretation of the good-faith exception, authorized by Davis, allows officers to pick and choose what law to rely on and leaves citizens more exposed to Fourth Amendment violations as new technology threatens traditional notions of privacy.
Condoning Constitutional Recklessness
In order for an officer to act reasonably, he should have to rely on the appellate caselaw of his jurisdiction. Further, there should be consequences for officers failing to err on the side of constitutional behavior when the law governing a particular police practice is unsettled. As stated in Katzin, “[w]here an officer decides to take the Fourth Amendment inquiry into his own hands, rather than seek a warrant from a neutral magistrate – particularly where the law is [] far from settled [] – he acts in a constitutionally reckless fashion.”[13] However, Davis condones this type of constitutional recklessness.
In a broad-interpretation jurisdiction without clear precedent, officers are effectively allowed to “guess” what the law is and point to other jurisdictions for their reasoning. Doing so encourages officers to “beg forgiveness rather than ask permission in ambiguous situations involving basic civil rights.”[14] These jurisdictions run the risk of institutionalizing a policy of permitting reliance on non-binding law. Such a policy borders on systematic negligence.[15]
Emergence of New Technology
In the world of crime, both cops and robbers are continually pursuing new technologies to gain an advantage over the other side. However, the courts are slow to make new rules concerning changes in technology.[16] As a result, Fourth Amendment issues regarding new technology often remain unsettled while courts get up to speed. As such, the broad interpretation of good-faith exceptionwill largely block the availability of the exclusionary rule if the warrantless use of the new technology is ever deemed to be a Fourth Amendment violation.
For example, in 2012 the Supreme Court, in United States v. Jones, held that warrantless GPS tracking constitutes a Fourth Amendment search that requires a warrant.[17] Prior to the decision, few courts had expressly ruled on the issue, so the law on GPS tracking was unsettled. After the Jones decision, a large number of defendants attempted to suppress the information gained from warrantless GPS tracking in their cases. However, courts that adopted the broad interpretation of Davis denied all motions to suppress the illegal searches even though there was no binding caselaw on point.[18]
Courts’ limited use of the exclusionary rule for Fourth Amendment violations, as seen after Jones, will continue to occur with the emergence of other new law enforcement technology. This inevitably leaves citizens more exposed to the constitutional violations of law enforcement without a judicial remedy, when, instead, the Fourth Amendment should protect citizens and deter police against the warrantless use of new investigative technologies.[19]
Conclusion: Courts Should Adopt the Narrow Interpretation
Adopting the narrow interpretation will encourage officers to take the extra step of obtaining a warrant when the constitutionality of a warrantless police practice is unresolved in the jurisdiction. By doing so, police officers will have to rely only on settled, constitutionally acceptable police practices when operating in the protected world of individuals’ privacy. Further, this interpretation will limit peoples’ exposure to unconstitutional police behavior while preserving the traditional application of the exclusionary rule when the police are truly objectively reasonable.
[1]Davis v. United States, 131 S.Ct. 2419 (2011).
[2] Id. at 2423-24, 2429.
[3]Mapp v. Ohio, 367 U.S. 643, 655 (1961).
[4] Davis, 131 S.Ct at 2437 (Breyer, J., dissenting).
[5] United States v. Lee, 862 F.Supp.2d 560, 570 (E.D.KY. 2012).
[6] United States v. Katzin, 732 F.3d 187, 207 (3rd. Cir. 2013). Note that the Third Circuit recently granted rehearing en banc. See United States v. Katzin, 2013 U.S. App. LEXIS 24722 (3rd. Cir. Dec. 12, 2013).
[7] United States v. Rose, 914 F. Supp 2d. 15, 22-23 (D. Mass. 2012).
[8] United States v. Lopez, 2013 U.S Dist. LEXIS 89389, at *15 (D. Del. June, 2013).
[9] See State v. Allen, 2013 WL 5435694, at *6 (8th Dist. Sept. 26, 2013); see also State v. Henry, 2013 WL 4859072, at *3 (2nd Dist. Oct. 12, 2012).
[10] State v. Johnson, 2013 WL 5926008 at *7 (12th Dist. Nov. 4, 2013); see also State v. Rich, 2013 WL 939539 at *6 (12th Dist. March 11, 2013).
[11] See People v. LeFlore, 2013 WL 5204383 at *33-34 (Ill. 2nd Dist. Sept. 17, 2013); see also Kelly v. State, 208 Md. App. 218, 248 (2010).
[12] Caleb Mason, New Police Surveillance Technologies and the Good-Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60, 71 (2012).
[13] United States v. Katzin, 732 F.3d 187, 212 (3rd. Cir. 2013).
[14] United States v. Lee, 862 F.Supp.2d 560, 569 (E.D.KY. 2012).
[15] Mason, supra note 12 at 87.
[16] Id. at 68.
[17] United States v. Jones, 132 S. Ct. 945, 949 (2012).
[18] See Susan Freiwald, The Davis Good Faith Rule and Getting Answers to the Questions Jones Left Open, 14 N.C. J.L. & Tech. 341, 365-374 (2013).
[19] Mason, supra note 12 at 89.
