Due Process and the Good Faith Exception

[This series of posts is based on Richard Re’s forthcoming Harvard Law Review article, The Due Process Exclusionary Rule/.]

In this final post, I’d like to bring the discussion full circle by asking what the due process exclusionary rule has to say about the most pressing exclusionary question currently facing the courts — namely, whether to embrace the good-faith principle endorsed by Judge Friendly and, apparently, by the Supreme Court in Herring v. United States. The short answer is no, but the details are somewhat more complicated.

As an initial matter, there is no good-faith exception to the Due Process Clauses. A search either does or does not comport with the pre-trial investigative procedures established by the Fourth Amendment. And, as I explained in my earlier post, the core historical meaning of the Due Process Clauses is that the government must follow separately codified procedures for depriving individuals of life, liberty, or property. Thus, the Due Process Clauses by themselves do not support a good-faith exception to the exclusionary rule.

However, a good-faith principle may be justifiable based on the Fourth Amendment’s flexible prohibition on “unreasonable” searches and seizures. The key is to view the Court’s existing good-faith cases as being concerned with whether the police engaged in reasonable reliance when conducting searches. For example, the Court has heard cases where police conducted searches based on warrants, statutes, and judicial precedents. When the police reasonably rely on these authorities, the resulting searches are likewise reasonable and therefore consistent with the Fourth Amendment. Thus, the good-faith cases can be understood as Fourth Amendment holdings — not holdings about the scope of exclusionary remedies. There is simply no need for a “reasonable reliance” exception to the exclusionary rule, given that the rule itself does not come into play when the police act reasonably.

Herring itself supplies an apt example. The police in Herring had conducted an arrest and search based on a warrant that turned out not to exist. In undertaking that search, the police had relied on their warrant database. Was it “unreasonable,” and therefore contrary to the Fourth Amendment, for the police to have relied on their database in that way? Remarkably, the Supreme Court expressly reserved that question and instead assumed arguendo that a Fourth Amendment violation had occurred, thereby setting up its cost/benefit analysis. Yet much of the Court’s analysis actually seemed to bear on the question of reasonable reliance. For example, the Court emphasized record evidence suggesting that no similar error had previously occurred in the relevant jurisdiction. Herring could thus be recast as a misplaced holding about the degree to which police may reasonably rely on their own records.

Importantly, understanding the good-faith cases in this revisionist way would not simply recreate the good-faith rule as endorsed by Judge Friendly and Herring. According to Friendly and Herring, the police must do something “egregious” or “flagrant” to justify the costly penalty of suppression. Routine or well-intentioned error would never trigger suppression. On the revisionist view outlined above, by contrast, the police could invoke the good-faith cases only to the extent that they have engaged in reasonable reliance based on some applicable (even if incorrect) legal authority. A situation involving mere uncertainty as to applicable law would not excuse the police in the event they committed a procedural lapse.

Well, that’s the end of my guest blogging about “The Due Process Exclusionary Rule.” I’ve enjoyed learning from your comments, and I remain very grateful to Eugene and the other conspirators for inviting me!

The views set forth in these posts are the personal views of the author and do not necessarily reflect those of the law firm with which he is associated.