By: Victor M. Hansen
The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application.
Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.
In Strieff, the Court essentially held that, even though the officer who stopped Mr. Strieff did so without the individualized suspicion required by the Fourth Amendment, the subsequent arrest and search were permissible because the officer’s initial erroneous stop was merely negligent. The Court called the officer’s errors “two good-faith mistakes.” As an aside, we should wonder how the Court came to that conclusion. Was it from testimony of the officer himself, claiming his mistakes were made in good faith? But be that as it may, even assuming the officer’s mistakes were made in good faith, why wouldn’t the application of the exclusionary rule still serve a deterrent effect?
The answer to that question, I think, boils down to what we as a society should expect from law enforcement officials whom we employ to protect and serve us. If we feel that we are best served by police departments that apply the law in a negligent and perhaps careless manner, even when that negligence violates individual privacy rights, then the Court’s opinion makes perfect sense. So long as the violations of the law are not purposeful and flagrant, individual privacy rights can be violated and the cost-benefit analysis should err on the side of imposing the cost on individual privacy.
If, on the other hand, we are best served by law enforcement officials who act professionally, take their responsibilities seriously, and see their role as protecting societal interests broader than just a competition between cops and criminals, then the Court’s opinion makes no sense, even on a purely deterrence rationale. Interestingly, and again without reference to any facts, the Court states that the officer’s unlawful stop was not part of any systematic or recurrent police misconduct. But, thanks to the Court’s holding in this case, this is exactly the type of police negligence we should come to expect as both systematic and recurrent—because now the police have no incentive to do anything more. Since they won’t suffer any adverse consequence for negligence and good faith errors, why train to a higher standard?
Even assuming the only reason for the exclusionary rule is deterrence, why should the rule only deter purposeful and flagrant violations? The Court does not provide an answer. In failing to answer that question, the Court ignores the fact that one of the driving forces for the professionalism of law enforcement over the past half century has been, at least in part, the exclusionary rule. Precisely because shoddy police work resulted in the loss of evidence at trial, police departments had to become more professional, more aware of the Fourth Amendment rights, and more protective of individual privacy. By now “dumbing down” the exclusionary rule and limiting its deterrent effect to only the most egregious police misconduct, the Court has given the green light for negligence and good-faith errors to become the gold standard for police performance. If that is what the Court wants to accomplish, it should at least be more honest about it and not simply hide behind the “deterrence effect” of the exclusionary rule, without addressing what we as a society ought to expect from the law enforcement officials we hire to serve us.