Supreme Court Review: Fourth Amendment, Part Two — Davis v. United States

Davis v. United States represents the collision of two recent Supreme Court cases.  In Arizona v. Gant, the Court held that the Fourth Amendment permits an automobile search incident to an arrest only if the arrestee is within reaching distance of the vehicle during the search or if police have reason to believe that the vehicle contains evidence relevant to the crime of arrest.  But, in Herring v. United States, the Court held that the exclusionary rule does not require the suppression of evidence obtained during a search incident to an unjustified arrest, if the arrest resulted from no more than isolated negligence.  Perhaps more important than the specific holding of Herring was the Court’s full-throated endorsement of a very narrow, deterrence-oriented understanding of the function of the exclusionary rule.

The logical culmination of the two decisions is Davis, in which police conducted an illegal search in reliance on pre-Gant precedent, and the Court held that the exclusionary rule does not require suppression of the fruits of the search.  Along the way, the Court articulated in an even clearer and more forceful way the philosophical approach to the exclusionary rule that underlay Herring.

Notably, what had been a 5-4 split on the rule in Herring became 7-2 in Davis, with new Justices Kagan and (perhaps to a more limited extent) Sotomayor both apparently rejecting the views of their predecessors, who had dissented in Herring.  It appears that the Herring approach has now achieved a dominant position on the Court and will supply the governing principles for many years to come.

Here is what the Court had to say about the exclusionary rule in Davis:

The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. E.g., Herring, supra, at 141, and n. 2; United States v. Leon, 468 U. S. 897, 909, 921, n. 22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348 (1974). Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly . . . unwarranted.” Janis, supra, at 454.

Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. Hudson v. Michigan, 547 U. S. 586, 596 (2006). The analysis must also account for the “substantial social costs” generated by the rule. Leon, supra, at 907. Exclusion exacts a heavy toll on both the judicial system and society at large. Stone, 428 U. S., at 490–491. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. Ibid. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See Herring, supra, at 141. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” Hudson, supra, at 591. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. See Herring, supra, at 141; Leon, supra, at 910.  (6-7)

These principles, the Court indicated, should be implemented by focusing on the culpability of the police:

The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. Herring, 555 U. S., at 143. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144. But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, Leon, supra, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Herring, supra, at 137, the “‘deterrence rationale loses much of its force,’” and exclusion cannot “pay its way.” See Leon, supra, at 919, 908, n. 6 (quoting United States v. Peltier, 422 U. S. 531, 539 (1975)).  (8)

The reasoning here reminds me of Kentucky v. King, in which (as I discussed in this post) the existence of a Fourth Amendment violation turned on whether the police threatened to violate the Fourth Amendment.  In both cases, the analysis collapses into a question of police culpability.  The suppression of evidence is conceived as a form of punishment of the police, which is justified (as we would justify the punishment of criminals) by reference to culpability.

But the emphasis on culpability does not necessarily follow from the premise that deterrence is the “sole purpose” of the exclusionary rule.  Giving the police a pass on negligent mistakes removes incentives to avoid negligence.  We have negligence liability in tort not because negligent tortfeasors are culpable, but because we want to ensure there are adequate incentives for everyone to take reasonable precautions.  It may be true, as the Court suggests, that negligence is harder to deter than more intentional forms of misconduct, but that does not mean that negligence is wholly beyond deterrence.  Whether nonculpable Fourth Amendment violations are worth deterring depends on a much more nuanced analysis than the Court has supplied — one that would weigh not only the risks of freeing dangerous criminals, but that would also take into account the benefits of deterring unwarranted searches and seizures that fail to produce any incriminating evidence.  An approach that focuses on the culpability of police officers on a case-by-case basis (implicitly contrasting their good intentions with the bad intentions of the criminal defendants seeking to suppress reliable evidence of their guilt) may tend to obscure the interests of the much larger number of innocent citizens whose freedom and privacy are threatened by cavalier police attitudes toward the Fourth Amendment.

Nor is it clear that the deterrence-based approach is the right one.  For instance, one might instead emphasize the integrity of judicial processes, which are tainted by the use of illegally obtained evidence.

In any event, rightly or wrongly, police culpability is now the key to the exclusionary rule.  That point established, the outcome in Davis was unavoidable.  The police acted consistently with the law of the relevant circuit pre-Gant, and thus could not be characterized as culpable.  The fact that the circuit law was later overturned was immaterial.

The real fight in Davis was over the impact of the decision on the incentives and capacity of defendants to litigate Fourth Amendment claims.  Davis means there’s not really much point for defendants to try to overturn binding Fourth Amendment decisions, no matter how misguided the decisions are — there’s no meaningful benefit available.  Indeed, there may not even be standing any more to advance such claims.

No matter, says the majority — it is already very rare for defendants to succeed in overturning established Fourth Amendment rules, and defendants can normally reframe their arguments such that they are trying to distinguish, rather than overturn, adverse precedent.

But I think the dissenters are correct that the impact on the exclusionary rule, and ultimately on the meaningfulness of the Fourth Amendment, is much more profound than the majority lets on, at least if the broad principles articulated in Davis are followed to their logical conclusion.  Here’s what the dissenters said:

Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, perhaps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless the police conduct falls into one of the exceptions previously noted, courts have required the suppression of the evidence seized.

But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction. Today’s decision will doubtless accelerate this trend.

Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year.  And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.”  It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.  (6-8 (citations omitted))

Interestingly, Justice Sotomayor, concurring in the judgment, shared some of the concerns reflected in this line of thinking.  Here is her response:

Whether exclusion would deter Fourth Amendment violations where appellate precedent does not specifically authorize a certain practice and, if so, whether the benefits of exclusion would outweigh its costs are questions unanswered by our previous decisions.

The dissent suggests that today’s decision essentially answers those questions, noting that an officer who conducts a search in the face of unsettled precedent “is no more culpable than an officer who follows erroneous ‘binding precedent.’” Post, at 7 (opinion of BREYER, J.). The Court does not address this issue. In my view, whether an officer’s conduct can be characterized as “culpable” is not itself dispositive. We have never refused to apply the exclusionary rule where its application would appreciably deter Fourth Amendment violations on the mere ground that the officer’s conduct could be characterized as nonculpable. Rather, an officer’s culpability is relevant because it may inform the overarching inquiry whether exclusion would result in appreciable deterrence. Whatever we have said about culpability, the ultimate questions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs.

As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one.  (2-3 (citations omitted))

No other justices joined Sotomayor’s opinion, though, suggesting that the other six who voted with the majority are more fully committed to the culpability-based approach.