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.