A Spectacular Non Sequitur: The Supreme Court's Contemporary Fourth Amendment Exclusionary Rule Jurisprudence
Gray, David, American Criminal Law Review
III. THE CONSEQUENCES OF THE SPECTACULAR NON SEQUITUR
With a brief history of the Court's Fourth Amendment exclusionary rule jurisprudence and a positive hybrid theory of the exclusionary rule before us, we can turn now to a more detailed account of the conceptual consequences of a deterrence-only approach to the exclusionary rule. The sections that follow expose and examine the consequences of the spectacular non sequitur for some of the key components of the Court's Fourth Amendment exclusionary rule doctrine, including the good faith exception, the cause requirement, and the standing requirement. Each of these discussions leads to the conclusion that deterrence alone is insufficient to keep these important doctrinal commitments afloat. The Court must therefore either abandon them or embrace some version of the hybrid approach described in Part II.
A. The Good Faith Exception
In Leon v. United States, the Court established an exception to the exclusionary rule in circumstances where the offending officer acted in the "objective good faith" that he was not violating the Fourth Amendment. (193) In Leon, and in subsequent "good faith" cases, the Court has rested its holdings on the claim that the Fourth Amendment exclusionary rule is justified only according to its ability to deter law enforcement officers, (194) Unfortunately, the good faith exception cannot be justified by deterrence considerations alone without running afoul of the spectacular non sequitur. (195) This does not mean that the good faith exception must be abandoned. In order to justify and sustain the good faith exception, however, the Court must adopt the hybrid approach proposed in Part II. Doing so not only puts the good faith exception on firmer conceptual ground, it also offers welcome clarity to lower courts and therefore promises more predictable outcomes. As the unanswered plea in Messerschmidt v. Millender shows, this brand of clear guidance is wanted and needed. (196)
In Leon, the Burbank Police Department received information from a confidential informant implicating "Armando" and "Patsy" in a drug conspiracy involving their home and "another location in Burbank." (197) Further investigation identified potential coconspirators, including Leon, and several locations, including Leon's home. Based on the tip and additional investigation, officers applied for and received a stack of search warrants. Subsequent searches uncovered drugs and other evidence of a drug conspiracy at the parties' homes and at a location that was apparently maintained as a stash house for storing large quantities of drugs. (198) Leon and his codefendants moved to suppress all of this evidence at trial on the grounds that the warrants were issued on less than probable cause. The District Court agreed and found that the searches were illegal, despite having been conducted in good faith. (199) It therefore granted the motions to suppress in part as to each defendant, depending upon where each had a reasonable expectation of privacy. As a consequence, all of the illegally seized evidence was admissible against at least some of the defendants and large quantities of illegal drugs seized from the stash house were admissible against all of the defendants. (200) The Ninth Circuit affirmed, but the Supreme Court reversed.
Writing for a five-justice majority, Justice White reprised the main themes from Calandra contending the exclusionary rule exacts "substantial social costs" by compromising the truth-seeking function of trials and by allowing guilty defendants to go free or to bargain for reduced sentences. (201) In the Court's view, those costs could be justified only to the extent exclusion might serve to deter law enforcement officers from violating the Fourth Amendment. (202) Although somewhat skeptical, Justice White "assum[ed] that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment," but nevertheless concluded that exclusion "cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity. …