The Exception Is The Rule: How 'Good Faith' Efforts Are Destroying 4th Amendment

[Mike]

While there has been some progress towards a restoration of the nation's Fourth Amendment rights, there have also been several steps back. A lot of this seems to be tied to a judicial reluctance to side with criminals. These Fourth Amendment issues generally boil down to law enforcement v. bad guys, usually delivered without nuance.

Earlier this year, the 11th Circuit Court of Appeals found that tracking suspects using phone location info required a warrant. This wasn't a general ruling, however, and it was limited to several specifics in this case. The court found that cell phone location info carried an expectation of privacy despite also being a "business record" -- something that is normally stripped of privacy expectations thanks to the Third Party Doctrine.

But here's where the decision ultimately falls apart. The Appeals Court arrived at a different conclusion, but refused to overturn the lower court's decision because it felt the lower court had "acted in good faith." Warrant requirements are now in place in the circuit court's jurisdiction, but the plaintiff was ultimately unable to have the illegally-gathered evidence thrown out.

Similarly, the Third Circuit Court of Appeals found last year that warrantless GPS tracking was a violation of the Fourth Amendment. Again, this decision tiptoed around other similar cases and reached a rather narrow conclusion. This was immediately appealed by the government, which asked for an en banc hearing. The en banc hearing returned this decision October 1st:

The Third Circuit Court of Appeals ruled today that evidence derived from warrantless use of a GPS tracking device can be used in court, even though law enforcement's failure to get a warrant before attaching the device to a car may have violated the Fourth Amendment.

The 8-5 decision in this case, U.S. v. Katzin, applies an expansive interpretation of the so-called "good-faith exception" to the Fourth Amendment's exclusionary rule, holding that officers reasonably relied on decades-old cases dealing with primitive "beeper" tracking technology in concluding that no warrant was required for sophisticated GPS tracking.

Once again, the court found that the search was in violation of the Fourth Amendment, but "good faith" nullified the remedy of excluding the illegally-obtained evidence. The court also vacated the earlier ruling that instituted a warrant requirement for GPS tracking.

Nathan Freed Wessler, staff attorney for the ACLU, has a long piece at Slate describing how these decisions have turned the "good faith exception" into the rule.

Under the “exclusionary rule,” when police engage in an illegal search, prosecutors can’t use the results. This penalty incentivizes police to abide by the Constitution and provides relief to victims of government misconduct. Indeed, as the Supreme Court explained a century ago, without the exclusionary rule the Fourth Amendment would be “of no value” and “might as well be stricken from the Constitution.”

But in a series of decisions starting in 1984, the Supreme Court has retreated from this vital protection of our rights. The justices first held that if police were relying in good faith on a judicially issued warrant authorizing a particular search, the resulting evidence couldn’t be suppressed even if the search was later held to be unconstitutional. The court has since expanded this good-faith exception to cover police reliance on other forms of explicit authorization, including statutes later held to be unconstitutional and binding court rulings that are later reversed.

Basically, the Supreme Court's new view is that the exclusionary rule is no longer a remedy, but a deterrent. The rule isn't there to ensure redress for those whose rights have been violated. It's there to steer law enforcement away from actions that would violate citizens' rights. But this doesn't work, and the main reason it doesn't work is the "good faith exception."

The cumulative effect has been to turn the "good faith exception" into a blank check for Fourth Amendment violations. The exception gives all but the most egregious violations a pass, a fact recognized by the dissenting opinion in the Third Circuit hearing.

"[T]his approach … expands the good faith exception to the point of eviscerating the exclusionary rule altogether by failing to provide any cognizable limiting principle. Now, law enforcement shall be further emboldened knowing that the good faith exception will extricate officers from nearly any evidentiary conundrum.”

Those with valid Fourth Amendment complaints will find the courts nearly useless when seeking redress. Combined with the immunity routinely granted to law enforcement in civil cases, those whose rights are violated are left to hope for long-delayed settlements post-incarceration, rather than avail themselves of their rights when on trial for criminal charges -- the point where the exclusionary rule would be of most use.

The good faith exception has swallowed the exclusionary rule and these compounding decisions allow law enforcement to predicate their defenses on uncertainty (even though the accused are never extended the courtesy of an "ignorance of the law" defense) and hide behind immunity while courts continue to defer to the judgement of John Q. Officer.

Scott Greenfield, questioning decisions relating to both the exclusionary rule and the (always expanding) good faith exception, had this to say about the intertwined issues back in 2010:

[T]he name “good faith exception” is problematic both from an application perspective as well as political perspective. It attributes a positive characteristic to the cops (good faith) making the idea of punishing them for it seem improper, if not downright disingenuous. Moreover, if the purpose of the exclusionary rule is limited to those situations where it serves only a deterrent purpose, and at the time of the search and seizure the cop’s conduct conforms with existing law, why would the law seek to deter compliance with precedent?

The courts have painted themselves into a corner, with the ample assistance of government prosecutors more than willing to portray any minimal nod to the Fourth Amendment as something that allows criminals to elude justice. Even the language deployed plays into law enforcement's hands.

The complications arising from technological advances have muddied the waters a bit, at least in terms of where Fourth Amendment protections begin and end. To prosecutors, these protections haven't changed at all. They're still almost nonexistent. Technology presents new challenges to law enforcement and these are greeted almost exclusively with pleas for further exceptions, as though they should also be immunized from keeping pace with the world itself. And, for the most part, they've been obliged by the judicial system.

When the exception swallows the rule, the Fourth Amendment becomes nothing more than a bit of aspirational fluff cranked out by hotheaded revolutionaries nearly 250 years ago. At best, it's a hassle. At worst, it's clearly unsuited to handle the nuances of today's technology. That's the prevailing government viewpoint. Our rights are eroding, and the most corrosive force has been those sworn to uphold the nation's laws and protect its citizens' liberties.

Originally Published: Fri, 07 Nov 2014 12:03:23 GMT
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