Today is the Tenth Anniversary of this blog. What follows are 13 “realities” of Fourth Amendment adjudication that I see from having read so many Fourth Amendment cases for so long. This is § 2.1 of the new edition, forthcoming in late December, with 90 footnotes which are omitted here.
1. There no longer are any “technicalities” under the Fourth Amendment.
a. All alleged errors in the creation (e.g., actual probable cause), issuance (i.e., scrivener’s errors, including particularity), and execution of a search warrant (i.e., excessive search), are subject to a rule of reason [my words, cases don't say it that way, but this book does]; this is the essence of the reasonableness requirement.
b. Thus, all questions regarding the construction of affidavits and warrants must be viewed from the perspective of encouraging the police to seek search warrants. Even fundamental mistakes can be in good faith and not prejudicial on the totality of circumstances.
c. Any alleged error requires that the target of the search was somehow “prejudiced” by what happened. Merely finding incriminating evidence is not prejudice. This is a “No harm, no foul” rule. Without the police finding something, we wouldn’t have a criminal case.
d. The Supreme Court would sometimes strive for “bright line rules” to make the Fourth Amendment easier for police to apply on the street, but that proved impossible in much of Fourth Amendment litigation because many situations defy bright line rules; e.g., “reasonableness” and “totality of the circumstances.” Even Payton, crying out for a bright line rule, ended up with the Fourth Amendment drawing “a firm line at the entrance to the house.” (See also “core values” under No. 4.)
2. Exclusion of evidence for a Fourth Amendment violation is the exception rather than the rule. Ending in the 1970’s, it seemed the rule rather than the exception, and that’s long over.
a. Exclusion has to result in “appreciable deterrence” of police conduct or misconduct to be applied. Where there is only marginal deterrence in a case means the exclusionary rule should not be applied.
b. The system benefits of deterrence must outweigh the costs. What “benefits,” exactly? Presumably adherence to the Fourth Amendment.
c. Therefore, there now is a good faith exception for warrantless searches.
3. The good faith exception applies to the finding of probable cause for the warrant. It was not, however, intended to apply to issues regarding the execution of warrant since the good faith exception was originally created to cure good faith probable cause errors in issuance of search warrants.
a. A court should consider probable cause first before considering good faith lest the Fourth Amendment stagnate, and no one would ever know whether a given set of facts constitutes probable cause.
i. It is part of the judicial function to decide probable cause, not decide that the question doesn’t need to be decided. When courts avoid deciding probable cause questions, they have deferred deciding probable cause questions to the police.
ii. Without deciding probable cause, police will continue to be able to arrest or search on similar facts without fear of civil liability because there will always be qualified immunity and no suppression of evidence. Therefore, courts should decide the question of probable cause before moving to the good faith exception.
iii. Deciding good faith without deciding probable cause should be the exception rather than the rule. In some jurisdictions, it’s not, and this is an abdication of the judicial function, exalting form over substance, and making the good faith exception more important than probable cause.
b. If the question of probable cause is difficult, the preference for warrants (see No. 1(b)) should lead a court to conclude that, even if there was no probable cause, there clearly was at least a good faith basis for finding probable cause in the first place and the product of the search warrant should not be suppressed. (This is what happened in Leon.)
c. The conduct of the officers must be “objectively reasonable,” referring back to the Fourth Amendment qualified immunity cases.
d. Of the four exceptions to the good faith exception under Leon, all are based on aggravated situations. Only the Franks “knowing and reckless falsity” has any real current value. The other three are becoming subsumed into the good faith exception in practice by cases that never factually measure up.
e. The Supreme Court says it hasn't yet applied the good faith exception in warrantless search cases. [But what is Davis?]
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