Here are three thoughts on the new case.
1) The Third Circuit focuses on the overall culpability of the officer who conducted the search, relying on the broad reading of Davis and Herring. The key passage seems to be this:
The constellation of circumstances that appeared to authorize their conduct included well settled principles of Fourth Amendment law as articulated by the Supreme Court, a near-unanimity of circuit courts applying these principles to the same conduct, and the advice of an AUSA pursuant to a DOJ-wide policy. Given this panoply of authority, we cannot say that a “reasonably well trained officer would have known that the search was illegal,” id., nor that the agents acted with “deliberate, reckless, or grossly negligent disregard for [Appellees’] Fourth Amendment rights,” Davis, 131 S. Ct. at 2427 (quoting Herring, 555 U.S. at 144) (internal quotation marks omitted). Thus, suppression is inappropriate because it would not result in deterrence appreciable enough to outweigh the significant social costs of suppressing reliable, probative evidence, upon which the Government’s entire case against Appellees turns.
I’ve been assuming that the debate over the broad vs. narrow reading of Davis was destined to be decided by the Supreme Court eventually. With that said, it’s interesting that all the circuits so far are reading the case so broadly so that no clear split has yet emerged. [But see update below] I personally find the broad reading of Davis to be very problematic, but I would guess that there are five votes on the current Court that would agree with that broad reading.
2) In this case, defense counsel conceded the relevance of the agent consulting with a prosecutor about the legality of the practice as part of the exclusionary rule calculus. See Slip Op at 34, n.13. There’s some precedential support for that, I recognize. At the same time, it strikes me as a really problematic rule. Think of the incentives it creates. First, agents have an incentive to ask the most aggressive prosecutor they know. Agents won’t ask for legal advice from Cautious Cathy; instead they’ll run it by Aggressive Andy. Second, the rule gives prosecutors an incentive to give out aggressive advice. If you’re a prosecutor and agents ask for your legal advice, you will know that by approving a questionable practice, the mere fact of your approval becomes an argument against the exclusionary rule applying if you turn out to be wrong. The exclusionary rule becomes narrower as the prosecutors become more aggressive.
3) Notably, the court vacated the merits ruling that a warrant was required even though DOJ did not ask the court to revisit that issue.
UPDATE: Andrew Pincus points out his recently-filed reply brief in Aguiar v. United States alleging a split with state high-court cases. So perhaps the Court will step in soon after all.