The exclusionary rule was a judge made rule that excluded evidence from being presented at trial where the evidence was seized or otherwise obtained in an illegal manner. The evidence might be drugs seized from an apartment without a warrant or without any probable cause to support a search. Or it could be a confession obtained without benefit of warnings to the defendant that he had a right to keep silent.
The rule was enacted because the courts felt, and history showed, that law enforcement was violating the constitutional rights of defendants. For cops, the notion was that few defendants would have the wherewithal to sue them in a court of law because it took more than minimal planning. And even when some defendants did sue police officers, they seldom won their cases, since by definition the cops are the good guys and the defendants are the bad guys. So violations continued unabated and with impunity. Eventually, the Supreme Court fashioned an “exclusionary rule.” If you violate a defendant’s constitutional rights, you lose all the benefits of the evidence you seized as a result of violating those rights.
But apparently the exclusionary rule has come up for a second look, most notably in a case called Herring v. United States, 129 S. Ct. 695 (2009) that was decided by the Supreme Court in June 2009. In Herring, the defendant was erroneously arrested after “negligent bookkeeping” by the police department resulted in an officer’s belief that there was an outstanding warrant for the defendant’s arrest. The Supreme Court held that this violated the Fourth Amendment, but that the exclusionary rule should not apply because it would not serve the purpose of “deterring Fourth Amendment violations in the future.”
According to the circuit, Herring requires a district court to conduct a “cost/benefit analysis” in deciding whether “the deterrent effect of applying the exclusionary rule outweighs the cost of the rule’s application.” So not all constitutional violations will serve as an automatic basis for exclusion of evidence.
Back in June, in a case called Julius, after finding a Fourth Amendment violation, the circuit remanded the case so that the district court could perform a cost-benefit analysis in deciding whether to apply the exclusionary rule. Here, the court took Julius one step further, performing its own Herring analysis and concluding that the exclusionary rule should not apply.
Background
Defendant was suspected by upstate police officers of molesting local children. Before arresting him, the officers obtained a search warrant for his apartment. While the materials supporting the warrant specified the kinds of offenses of which Defendant was suspected and the particular items sought, the warrant itself did not contain those details and did not incorporate the supporting materials.
Defendant was ultimately charged in federal court with producing child pornography, based on materials recovered from the search. He moved to suppress based, inter alia, on a claim that the search warrant lacked particularity. After the district court denied the motion, he pled guilty pursuant to a conditional plea agreement, and was sentenced to 120 years’ imprisonment.
The Circuit’s Opinion
1. The Warrant Was Invalid
The search warrant here did indeed violate the Fourth Amendment’s particularity requirement. It “lacked the requisite specificity to allow for a tailored search of [Defendant’s] electronic media” because it “failed to link the items to be searched and seized to the suspected criminal activity.” As a result, the “warrant directed officers to seize and search certain electronic devices, but provided them with no guidance as to the type of evidence sought.” Nor did it matter that the warrant application was sufficiently particular; the warrant itself was facially invalid – “unincorporated, unattached supporting documents” do not “cure an otherwise defective search warrant.”
2. The Exclusionary Rule Does Not Apply
Nevertheless, the circuit affirmed, after performing a Herring cost-benefit analysis. First, the court concluded that a “reasonably well trained officer” would not be “chargeable with knowledge that this search was illegal” under the circumstances present here. Moreover, the unincorporated, unattached supporting documents indicated that the officers acted in good faith. Those materials were put together during a short time period, and make clear the purpose of the search. The affiant officer also helped execute the search and was therefore “intimately familiar with the contemplated limits of the search.” Finally, there was no evidence that the officers searched for or seized any items that were unrelated to the crimes for which probable cause had been shown, or that the affiant “somehow misled the town justice regarding the facts of the investigation and intended scope of the search.” Thus, applying the exclusionary rule would “serve little deterrent purpose in this case.”
* Thanks to the Second Circuit Blog, written by the Federal Defenders of New York City.
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