In its recent decisions in Herring v. United States, 555 U.S. 135 (2009), and Davis v. United States, 131 S. Ct. 2419 (2011), the Supreme Court has indicated that the Fourth Amendment exclusionary rule depends on culpability. As the Court put it in Davis:
[T]he deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. 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. But when the police act with an objectively “reasonable good-faith belief” that their conduct is lawful, or when their conduct involves only simple, “isolated” negligence, the “deterrence rationale loses much of its force,” and exclusion cannot “pay its way.” (citations omitted)
Although the Court has made culpability the key, the Court has not clearly defined the critical boundary between gross negligence and “simple, isolated negligence.”
Craig Bradley illuminates the difficulties in an insightful new article, arguing that courts should take into account the extent of the intrusion into the suspect’s privacy when deciding whether police negligence has crossed the line into misconduct that warrants exclusion.
In Davis and Herring, the Court justified its reliance on culpability by reference to deterrence, reasoning that less culpable conduct is less deterrable. However, I think Bradley is right to question this reasoning:
Why should negligence not be sufficient? In Herring, the Court conceded Justice Ginsburg’s claim that “liability for negligence . . . creates an incentive to act with greater care” and said it did “not suggest that the exclusion of evidence could have no deterrent effect.” Rather, it found that for Herring’s facts “exclusion is not worth the cost.” In Davis the Court exceeded Herring’s limited holding to state that “simple isolated negligence” is not enough to justify exclusion, even though it had conceded in Herring that negligence could be deterred.
The other problem with the Davis formulation is the Court’s belief that recklessness is more deterrable than negligence. A reckless policeman knows that he may be violating the defendant’s Fourth Amendment rights but doesn’t care. It seems that such a person is less likely to be deterred by the threat of exclusion than a simply careless policeman is, even though the Court conceded in Herring that such a policeman could be deterred. The reckless policeman is more culpable, but not necessarily more deterrable . . . . (9 (citations omitted))
But, even factoring deterrence out of the equation, culpability may still be the right variable on which to focus because culpability speaks to just deserts (or, as Bradley puts it, “simple justice” (23)). When the cops have acted in a blameworthy fashion, then they should not profit from what they have done.
The real problem with Davis and Herring is not their emphasis on culpability, but their failure to make clear that culpability depends on more than just the officers’ awareness that they might be violating the Fourth Amendment. Here’s Bradley’s take on the problem:
If we’re going to assess police culpability on a case-by-case basis, as Herring requires, we should at least take into account the extent of the intrusion on privacy that negligent police behavior causes.
That culpability depends in part on the impact on the victim is a commonplace in criminal law. Murderers are punished much more severely than attempted murderers, even though they commit the same act with the same mens rea. Likewise manslaughter is punished more severely than reckless endangerment, as is theft of a purse when the amount inside happens to exceed the statutory limit for grand larceny.
. . . I do not object to a “simple isolated negligence” exception if it is meant to refer to minor breaches that do not substantially interfere with a suspect’s rights, as opposed to illegal arrests with all their consequences or searches of houses incorrectly based on exigent circumstances. (10-11 (citations omitted))
Bradley’s analysis reminds me of Hyman Gross’s theory of culpability, which I discuss in this article (pp. 156-59). According to Gross, the culpability of an act can be measured along four different dimensions. The first is intentionality, which encompasses the familiar states of mind with respect to a risked harm (negligence, recklessness, knowledge, and purpose). The second looks to the magnitude of the harm itself, while the third depends on the likelihood of the harm actually coming about. The fourth and final dimension is legitimacy: to what extent is the actor’s conduct regarded as legitimate and beneficial notwithstanding its risks.
Bradley’s thesis, as I understand it, could be translated into this schema as follows: the culpability of a Fourth Amendment violation should be assessed based not merely on Gross’s first dimension, but also on the second. But what about also adding the fourth to the mix? Doesn’t police culpability also depend on the legitimacy of the officers’ conduct?
Legitimacy is a complicated concept in Gross’s schema, but it depends in part on the strength of the interests served by an actor’s harmful conduct, and it is this aspect of legitimacy that seems to me a potentially helpful variable to add to the Fourth Amendment mix. To my mind, the degree of culpability of officers for Fourth Amendment violations turns at least in part on the seriousness of the offense that they are attempting to prevent or respond to. Although the relative severity of specific offenses is not always clear, I think we could generally agree that violent crimes are more serious than nonviolent, that victimizing offenses are more serious than nonvictimizing, and so forth. These sorts of principles might usefully complement the sort of weighing of interests that Bradley urges. I don’t mean to suggest that the police should be excused entirely from the Fourth Amendment when they are, for instance, investigating a murder, but I imagine that most people would be willing to cut the police quite a bit more slack when they wish to search a home for evidence of homicide than when they are after evidence of tax evasion or drug possession.
Bradley’s article (“Is the Exclusionary Rule Dead?”) was published earlier this spring at 102 J. Crim. L. & Criminology 1 (2012).