Why Suppress Illegally Obtained Evidence? The U.S. Supreme Court Decides Davis v. United States
Earlier this year, the Supreme Court held, in Davis v. United States, that if police perform a search that is authorized by binding appellate precedent, then the evidence they find will not be suppressed at trial, even if the U.S. Supreme Court later rules in another case (while the instant case is on its way up on appeal) that the search violated the suspect’s Fourth Amendment rights.
Though the Court’s decision is not entirely illogical, it depends on a view of the exclusionary rule—including its purpose and its effect—that leaves a lot to be desired.
The Rocky Relationship Between the Fourth Amendment and the Exclusionary Rule
The Fourth Amendment guarantees “the people” the right to be secure against “unreasonable searches and seizures,” and it also limits the circumstances under which a valid warrant may issue. Notably, the text does not say what will happen if the government violates the Fourth Amendment and thereby obtains incriminating evidence. The Court has consequently wrestled with this question repeatedly over the last century.
The Court first applied the Fourth Amendment exclusionary rule in 1914, in Weeks v. United States. There, the Court held that because federal officials had violated the Fourth Amendment in their search of the defendant’s home and their seizure of his papers, the papers should have been returned to the defendant and not held for introduction at his criminal trial. The Court deemed the use of the illegally seized evidence at trial to be prejudicial error, and it reversed the lower court’s decision to affirm the defendant’s conviction.
The Supreme Court’s decision in Weeks thus appeared to adopt the view that the Fourth Amendment itself prohibits not only unreasonable searches and seizures, but also the use of resulting evidence at the defendant’s criminal trial. Recognizing the limited application of the Bill of Rights at this time, however, the Court added that the Fourth Amendment does not regulate the conduct of state officials and that therefore, the evidence found by non-federal police officers fell outside the scope of the exclusionary rule.
The Court had occasion to reconsider the exclusionary rule in 1949, when it decided Wolf v. Colorado. In Wolf, the Justices held that the right against unreasonable searches and seizures does extend to state government officials, via the Fourteenth Amendment’s Due Process Clause, contrary to the holding of Weeks. Nonetheless, the Court refused to extend the exclusionary rule to evidence obtained by state officials’ unreasonable searches and seizures. Explaining that the exclusion of evidence is simply one approach to preventing and deterring violations of the Fourth Amendment, the Supreme Court said that exclusion would be mandatory only in federal courts, leaving state courts to choose their own methods for preventing unreasonable searches and seizures.
In Wolf, then, the U.S. Supreme Court offered the view that exclusion is a vehicle for inducing government officials to comply with their obligations under the Fourth and Fourteenth Amendments. It works by eliminating the payoff associated with searches and seizures, namely, the acquisition of usable evidence. But other vehicles—including civil lawsuits against offending officers, internal discipline of police by their own departments, and criminal sanctions for those who violate the Constitution—might also work, and states are free to select their own approaches.
About twelve years later, in the 1961 case of Mapp v. Ohio, the Court reversed course in two ways. First, it extended the exclusionary rule to all courts, no longer leaving it up to the states to decide how to go about deterring and preventing unreasonable searches and seizures. Second, it used at least some language indicating that the exclusionary rule is more than simply an instrument for inducing constitutional compliance in government officials.
The Court said, for example, that “[w]e hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court” (emphasis added). This statement suggests that the Constitution itself requires the exclusion of evidence obtained through unreasonable searches and seizures. Further, the Court identified exclusion as a necessary means of deterring such unconstitutional investigation: “Only last year,” it asserted, “the Court itself recognized that the purpose of the exclusionary rule ‘is to deter—to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.’”
In 1976, however, in Stone v. Powell, the Court returned to the view that the exclusionary rule is only a means of deterring Fourth Amendment violations, not a Fourth Amendment right in itself. There, it held that a federal habeas corpus petitioner may not obtain relief on the basis of the failure of his trial judge to exclude evidence that had been obtained in violation of the Fourth Amendment, so long as the state provides an opportunity for full and fair litigation of such claims. Other cases further developed this idea and expanded the list of contexts in which the exclusionary rule would not apply.
In keeping with the “deterrent only” approach to Fourth Amendment exclusion, the Court in 1984, in United States v. Leon, announced the “good faith” exception to the exclusionary rule, providing that if police reasonably rely on a warrant that is later found by a court to be defective, the evidence obtained pursuant to that warrant will not be suppressed.
The Court’s theory was that if police go to a magistrate to obtain a warrant, and the resulting warrant appears valid on its face, then the exclusionary rule will not deter police from searching or seizing on the basis of that warrant. Indeed, the Court’s view was that we should be glad that police went to the magistrate for a warrant and thereby allowed a neutral and detached person to review the officer’s own judgment of probable cause. It was the magistrate, the Court pointed out, who made an error, and the exclusionary rule is not going to deter magistrates, who do not represent an arm of law enforcement, and who thus do not care whether the prosecutor’s evidence is ultimately admitted or suppressed.
In later cases, the Court extended the good faith exception to other contexts in which police reasonably rely on what turn out to be mistakes by other branches of government regarding the scope of the Fourth Amendment. Police, for example, might blamelessly perform searches or seizures on the basis of a statute later found to violate the Fourth Amendment. In such a case, under Illinois v. Krull, the exclusionary rule will not apply to evidence found by the police, because it is the legislature rather than the executive branch that made the error, and legislatures do not respond to the incentive of suppression.
Moreover, the Court held in Arizona v. Evans, the same is true in the case of record-keeping computer errors made by court employees that lead police to believe, reasonably but incorrectly, that there is an outstanding warrant for a suspect’s arrest. And in a somewhat surprising development, as I discussed in a column I wrote, the Court ruled in Herring v. United States that the good faith exception to exclusion applies as well when an officer performs a search or seizure on the basis of erroneous computer records maintained by employees of the police department itself.
In these cases, the Court has treated the exclusionary rule as a drastic and costly measure that must be taken only when doing so will have the greatest impact in preventing and deterring police from violating the Fourth Amendment right against unreasonable searches and seizures. The cost of exclusion lies in the removal of reliable, relevant evidence from the jury’s consideration in a criminal case. If the jury is barred from considering the fruit of a Fourth Amendment violation, then it is more likely to acquit and release a guilty person and thereby potentially threaten the public safety.
For this reason, in the Court’s view, exclusion is a highly toxic medicine that should be avoided in the absence of “‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth Amendment rights,” or simple negligence that goes well beyond an isolated example.
The Case of Willie Gene Davis
In Davis, the case the Court resolved earlier this year, and with which I began this column, police did not act with any sort of culpable disregard for Fourth Amendment rights. On the contrary, they stopped a car lawfully, after which they lawfully arrested a passenger in the car, Willie Gene Davis, for giving a false name to the police. After handcuffing Davis and securing him in the back of a police car, they performed what they reasonably believed to be a valid search incident to arrest of the passenger compartment of the vehicle that Davis had recently occupied. In the course of this search, they found a revolver inside Davis’s jacket pocket.
The United States subsequently prosecuted Davis for the crime of possession of a firearm by a convicted felon (often nicknamed “felon with a firearm”). Davis moved unsuccessfully to suppress the weapon on Fourth Amendment grounds, claiming that police may not search a vehicle incident to an arrest once the arrested person has been restrained and cannot reach into the vehicle. The trial court denied the motion to suppress, under an Eleventh Circuit decision on the books upholding such a search, and Davis was convicted.
As it happens, though, while Davis’s case was making its way up on appeal, the U.S. Supreme Court announced in Arizona v. Gant that the Fourth Amendment does not authorize the search of a vehicle incident to arrest once the suspect has been secured, absent “reason to believe” that the search would yield evidence of the crime of arrest. Under Gant, the vehicle search that turned up Davis’s revolver had therefore plainly violated the Fourth Amendment.
After that ruling was handed down, Davis may have imagined that he was home free, because his appeal was still pending. The U.S. Supreme Court, however, announced that even though Davis was correct that he had suffered a Fourth Amendment violation, the resulting evidence nonetheless fell outside the scope of the exclusionary rule.
The Court reasoned that when the police performed the search at issue, binding appellate precedent in the Eleventh Circuit had authorized what the police did. Given the Eleventh Circuit’s ruling on the books, officials could not have anticipated the U.S. Supreme Court’s holding in Gant that such a search is unconstitutional. Therefore, the Court determined, exclusion of the evidence in Davis’s case would not serve any deterrent function. Suppression of the evidence would accordingly be costly, by keeping incriminating evidence from the jury’s consideration and thereby perhaps freeing guilty people, and it would carry no overriding benefit by way of deterring police from violating the Fourth Amendment. Exclusion thus could not, in the words of the majority, “‘pay its way.’”
The Court’s reasoning might seem persuasive. When there is binding precedent holding that the Fourth Amendment permits a particular kind of search, we surely cannot expect the police to forgo that kind of search. If we really wanted the mere possibility that an earlier case on point might be overruled to deter the police from performing searches and seizures, then a better approach would be to prohibit all searches and seizures entirely. To the extent that we want police to perform lawful searches and seizures and avoid only the unreasonable ones, we cannot fault the police in Davis for acting as they did. If our question is “Could the police have done better if they had fully mastered and internalized existing case law?,” the answer is clearly no, and suppression would seem positively wrongheaded.
Yet one need not conclude that suppression of the gun discovered in Davis’s jacket would have been a mistake. The majority’s conclusion assumes that when we calculate the deterrent efficacy of suppression, the right question to ask is whether the police did something that they should have known not to do—or, in other words, whether the police were in some sense blameworthy. But are blameworthiness and receptivity to deterrence really the same thing?
Blame Versus Deterrence
When we ask whether a police officer (or anyone) was blameworthy in taking a particular action, it is often because we want to know whether it would be fair to impose a penalty on that actor. To take a mundane example, assume that my daughter receives an invitation to a birthday party that asks her to bring “a fruit of your choice to sweeten the occasion.” Assume further that my daughter asks me for advice about what fruit to choose, and I recommend strawberries. It turns out, however, that the birthday girl is allergic to strawberries, and my daughter therefore brings her offering back home after the party, untouched.
Under the circumstances, it would be completely unfair for me to punish my daughter for bringing strawberries to the party. My daughter, in this case, would be like the police officers in Davis. Though the police (and my daughter, in the hypothetical case) violated what we now understand to be the rules, neither of them could have known this at the time. In fact, it was the authorities who were responsible for teaching the rules—the courts and, in my daughter’s case, I—who led the respective actors to believe that they were behaving in conformity with those rules. It would seem, in other words, to be an exercise in arbitrariness to inflict punishment in these cases.
If the goal, however, is to suppress only that evidence obtained by the police in a blameworthy fashion, then the U.S. Supreme Court should never have decided Arizona v. Gant (the case prohibiting vehicle searches of the sort experienced by Willie Gene Davis) as it did. In Gant, though there was no court of appeals opinion specifically authorizing the particular search, an existing Supreme Court precedent that was on point, New York v. Belton, had long been understood to permit such searches. Indeed, I had understood Belton this way and argued as much in a column written after the Supreme Court granted review in Gant. More importantly, the writer of the majority opinion in Davis, Justice Alito, said in his dissent from Gant that Gant had “effectively overruled” the Court’s prior precedents, including Belton. It was therefore no fairer to the police to suppress the evidence in Gant, than it would have been to suppress the evidence in Davis.
The Court nonetheless suppressed the evidence in Gant, because suppression is not in fact a way of punishing the police or of declaring that police have behaved in a reprehensible, reckless, or grossly negligent fashion. The point of suppression, in Gant and elsewhere, has been, instead, to motivate police officers and departments to associate the unlawful search that took place with the loss of evidence and thereby to learn what is and what is not a legal search.
On the assumption that police officers and their supervisors care greatly about whether evidence is admitted or suppressed, suppression induces an avoidance response in the people responsible for complying with the Fourth Amendment. Like a patron who eats at a restaurant and then falls ill with food poisoning, police officers and police departments who conduct searches, only to see the evidence they unearth suppressed, will remember not to repeat the behavior that led to the undesirable consequences.
Significantly, moreover, even an unfair pairing of action and negative consequences reinforces the message that the action is to be avoided in the future. The restaurant patron who gets food poisoning, for example, may not have known in advance to avoid the restaurant and therefore cannot be “blamed” for eating there. Yet he will just as predictably avoid a second visit, having learned his lesson.
One might respond that it seems wasteful to throw out perfectly good evidence. And, though I support the exclusionary rule, I acknowledge this point—the point that suppression of evidence is costly to our system: Juries have less information in making their decisions; guilty people could be wrongfully acquitted; and the public may come to associate attorneys with smiling criminals unjustly getting away with their misconduct on mere technicalities.
The reason to have an exclusionary rule, despite these costs, is the view, articulated in the past by the U.S. Supreme Court, that suppression is either the only or the most effective way of motivating police to learn what the Fourth Amendment requires, and to follow its commands. In fact, the alternative civil lawsuit remedy—through which police pay damages to victims of unconstitutional conduct—is inadequate in part because it is designed to be fair to the police and therefore carries qualified immunity, shielding from liability those whose actions do not violate clearly established legal doctrine.
Suppression, in other words, can reach out and teach police for the future that a search or seizure is unlawful, even when the police who performed the unlawful search or seizure were not at all blameworthy for doing so. Every time an illegal search leads to the suppression of evidence, the connection between the search and the negative outcome is strengthened in the minds of police. Conversely, every time an illegal search yields evidence enabling a successful prosecution, the connection between the search and negative outcomes is accordingly weakened.
To take a fairness approach to deterrence to reduce the cost, as the Court has done, is therefore to water down the deterrent value of a rule whose only acknowledged virtue is deterrence, and whose deterrence works prospectively because it makes Fourth Amendment violations costly.
Deterrence Versus Non-Reward
In closing, I want to call readers’ attention to an additional problem with the Court’s approach to the exclusionary rule. Though the Court calls suppression a “deterrent,” it is really more of a “non-incentive.” If police violate the Fourth Amendment, find evidence, and put away a criminal as a result of that violation, then they experience a reward for violating the Fourth Amendment. Had they obeyed the Fourth Amendment, by hypothesis, they would not have found the evidence.
Admitting the evidence therefore makes the police “better off” than they would have been had they obeyed the Constitution, and suppressing the evidence ordinarily puts them in the same position that they would have occupied if they had refrained from performing the search or seizure.
If we are to deter behavior by withholding rewards (as opposed to by imposing punishment), we must be consistent about it. Few, for example, would feel deterred by a sign in a store that says “Shoplifters might not be able to keep their stolen merchandise.” Each time the Court announces additional exceptions to the exclusionary rule, it thus increases the association between rewards and the unlawful conduct that it hopes to deter. And it does so in the name of a fairness concern that is not truly implicated.