Monday, May 05, 2014

"Good Faith" and Culpability

by Sherry F. Colb

In my column for this week, Part 2 of a 2-part series of columns, I continue my discussion of  Heien v. North Carolina, a case in which the U.S. Supreme Court recently granted review. Heien presents the question whether a police officer who conducts a stop of a suspect, based on the officer's reasonable but mistaken interpretation of the content of the traffic law, has violated the Fourth Amendment.  I propose in my columns that the government could (and likely will) win this case even if the Court holds that basing a stop on a reasonable mistake of law violates the Fourth Amendment.  This is because the Court could announce another "good faith" exception to the Fourth Amendment exclusionary rule for objectively reasonable (but mistaken) interpretations of substantive law on the basis of which police conduct a stop.

In this post, I would like to consider the use of the term "good faith" in the Supreme Court's "good faith exception" doctrine.  Ordinarily, we use the phrase "good faith" to refer to a sincere effort to do the right thing and a corresponding lack of malice or ill intent.  By the same token, when we say a person has acted in "bad faith," we attribute a nefarious intent to the person.  He did not just make a stupid mistake; he deliberately caused harm in some way.

This is what makes it odd that the U.S. Supreme Court has consistently used the phrase "good faith" in the Fourth Amendment context to refer to objectively reasonable errors that set the stage for introducing evidence despite police having technically violated the Fourth Amendment.  Right from the beginning, in United States v. Leon,  when the Supreme Court first announced the good faith exception, the Court explained that a well-meaning and accidental Fourth Amendment violation will not qualify an error as in "good faith."  The error must be objectively reasonable. Conversely, when police act in bad faith -- for example, by intentionally stopping a driver for being African American rather than for committing a traffic offense -- the Supreme Court has said that the objective presence of probable cause regarding the traffic violation is all that is necessary to make the stop a valid one, for Fourth Amendment purposes.  As ordinarily used, then, "good faith" and "bad faith" seem to have no relevance to Fourth Amendment and exclusionary rule doctrine or even to "good faith" doctrine.

Why, then, has the Court chosen to use the phrase "good faith" for this set of exceptions and thereby generate understandable ("good faith"?) confusion that it must then set about clarifying?  It is difficult to know with any confidence, but I have a theory.

My theory is that because the Court has understood the Fourth Amendment requirement that searches and seizures be "reasonable" as a purely objective requirement, it would sound potentially contradictory to say that although police had violated the Fourth Amendment, by carrying out an objectively "unreasonable" search or seizure, their actions were nonetheless objectively "reasonable."  Put differently, the phrase "reasonable unreasonableness" sounds like a whole lot of nonsense.  By contrast, the phrase "good faith errors" sounds like something plausible with which we are amply familiar from every day life.  People mean well but mess up, and we generally avoid visiting harsh penalties upon them.  We are only human, after all.

Thus, my theory goes, in an effort to create a doctrine that sounds like something sensible, the Court came up with "good faith" errors that -- in virtue of being made in good faith -- should not be "punished" with the harsh penalty of exclusion.  The problem, though, is that the sensible impression is illusory:  if police action is objectively "reasonable," then it would appear to satisfy the text of the Fourth Amendment and not to be in violation of it, and if it instead qualifies as an "unreasonable" search or seizure, then it -- literally by definition -- not reasonable.  A cynic might say that the Supreme Court simply wants to admit evidence that violates the Fourth Amendment, so it created a "good faith" doctrine that does so and that sounds coherent, even though it really is not.

Over time, though, something interesting has happened.  With the Supreme Court's increasing comfort with expressly narrowing the scope of the exclusionary rule at seemingly every opportunity, the "means well" ordinary interpretation of "good faith" has begun to make (some) sense of the doctrine.  For example, in Herring v. United States, Chief Justice Roberts said expressly that the exclusionary rule is an inappropriately harsh and costly remedy for simple negligence on the part of a police department in managing a database of outstanding warrants, asserting that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system." The Court also said in Hudson v. Michigan that even when police unreasonably fail to abide by the Fourth Amendment knock and announce requirement, that does not merit the harsh sanction of exclusion.  In other words, unreasonable searches and seizures that really are unreasonable (rather than "reasonably unreasonable") can nonetheless yield admissible evidence if the error is not "sufficiently deliberate" and "sufficiently culpable." A lack of culpability or bad intent is, of course, precisely what we ordinarily mean by the phrase "good faith," though it had not prior to Herring been part of the doctrine.

It may be, then, that if you use a phrase enough times, you will eventually come to believe the actual meaning of the phrase rather than the meaning that you invented for the phrase in the past.  This notwithstanding your efforts to explain that when you said "good faith," you meant something different from the ordinary person who says "good faith."  I will leave that as my charitable interpretation of the Supreme Court's good faith doctrine in the Fourth Amendment.

10 comments:

pvine said...

Prof. Colb,

Respectfully, you are totally confused in your evaluation of the Fourth Amendment.

If a search or is seizure is unreasonable it violates the 4A. That violation gives rise to (1) a motion by a criminal defendant to exclude from admission at his trial any evidence that is the fruit of that violation; and (2) a civil lawsuit by the plaintiff (pursuant to 1983) against the offending officers seeking monetary damages.

The "good faith" rule is only applicable to (1). It is only designed to determine when exclusion of evidence (that may result in a guilty person avoiding liability for his criminal conduct) is an appropriate remedy. It has no applicability to (2), 1983 lawsuits that are governed by principles of qualified immunity and, in turn, clear violations of Supreme Court holdings.

Further, in the (1) situation, the Supreme Court's more recent decisions are essentially equating "good" faith with the opposite of "bad" faith. That is exclusion is not a constitutionally permissible remedy unless the officer's conduct was not simply unreasonable -- conduct that could give rise to a 1983 remedy -- but was more "culpable." So, for example, simple negligence on the part of the officers (i.e., failure to act reasonably in conducting a search or seizure) will never permit exclusion of the fruits of that conduct from a criminal trial. Rather, the unreasonable officer's conduct must have been more culpable -- they must have acted in "bad" faith in that their conduct was either grossly negligent (i.e., grossly unreasonable) or flagrantly violative of the defendant's 4A rights.

So, contrary to your (confused) argument, "good" faith is the opposite of "bad" faith.

Sherry F. Colb said...

pvine, I am baffled by your repeated suggestions that I am confused. You seem to imagine that I made points I did not make. You then proclaim points that I already made as your own and imply that I somehow contradicted these points. Perhaps in suggesting that I am confused, you are, as Freud would say, "projecting." I'm not sure where you got the impression that I thought the "good faith" rule applied to section 1983 suits. I actually proposed that in traditional "good faith" cases, the officer is acting in an objectively reasonable fashion and therefore, if the evidence is not subject to exclusion, the officer would also not be subject to a section 1983 suit (and would accordingly be beyond deterrence). As to the Court's equation of good faith with the opposite of bad faith in recent cases, I remarked on this very trend in my post, so I am confused to see you making a similar point in your comment disagreeing with me. Just to correct an error, though, the trend is not as clear-cut as you imply in your comment. You say that "simple negligence on the part of officers (i.e., failure to act reasonably in conducting a search or seizure) will never permit exclusion of the fruits of that conduct from a criminal trial." Actually, that is not quite right. Though the Court has, in its rhetoric, said that culpability is required (hence my point in my post), the Court has so far confined its tolerance of negligence to narrow realms, such as the negligence of the police department in keeping records. This means that the arresting officer (in Herring) acts reasonably -- and not negligently -- in arresting on the basis of such records. If an officer were herself to act negligently in choosing to arrest a suspect (falling sufficiently short of probable cause, for example, to rise to the level of negligence), existing precedent would suppress the evidence immediate resulting from that violation. In any event, though I am confused by your oddly accusatory comment, I am happy to clear up whatever confusion your comment has generated in our readership.

pvine said...

Your comment seemed (at least to me) to suggest that the Court's "good" faith doctrine is not the opposite of "bad" faith, as the later term is commonly understood.

I believe that, to the extent that you were making such an assertion (which you have now clarified that were not) that claim was inaccurate.

Sorry if my choice of words was offensive to you. That was not my intent. Rather, my comment was made because of a "good" faith misinterpretation of your words. :)

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worth the price paid by the justice system." The Court also said in Hudson v. Michigan that even when police unreasonably fail to abide by the Fourth Amendment knock and announce requirement, that does not merit the harsh sanction of exclusion. In other words, unreasonable searches and seizures that really are unreasonable (rather than "reasonably unreasonable") can nonetheless yield admissible evidence if the error is not "sufficiently deliberate" and "sufficiently culpable." A lack of culpability or bad intent is, of course, precisely what we ordinarily mean by the phrase "good faith," though it had not prior to Herring been part of the doctrine.Buy LOL Elo Boost
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