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Argument preview: Police and changing law

At 10 a.m. Monday, the Supreme Court will hold one hour or oral argument on Davis v. U.S. (09-11328), another test of the scope of the “good faith” exception to the exclusionary rule under the Fourth Amendment.  Arguing for Willie Gene Davis of Greenville, Ala., will be Orin S. Kerr, a George Washington University law professor in Washington, D.C.  Arguing for the federal government will be Deputy U.S. Solicitor General Michael R. Dreeben.


For nearly a century — since 1914 — the Constitution has put a strict limit on criminal prosecutors’ use of evidence that police obtained while violating someone’s constitutional rights under the Fourth Amendment’s ban on “unreasonable searches and seizures.”  The theory has always been that, if such evidence cannot be used, police officers would be deterred from violating individuals’ rights by having to pay a price for doing so.

That is what is called “the exclusionary rule.”  It began, in the 1914 case of Weeks v. U.S., as a limit only on federal prosecutors, since the Fourth Amendment at that time did not even apply to state and local government activity.  The Court extended that Amendment, and with it, the exclusionary rule, to state and local governments in the 1961 case of Mapp v. Ohio — one of a series of rulings by the “Warren Court” applying across-the-board the protections of the Bill of Rights in criminal cases.

The Court, however, carved out a major exception to the rule in its 1984 decision in U.S. v. Leon, creating for the first time a “good faith” exception to the rule.  If police carried out a search relying “in good faith” on a search warrant, which they believed to be legal, the fact that the warrant turned out later to be illegal did not require a judge to exclude the evidence that was involved, the Court ruled.  There is no deterrent value, the Court concluded, in punishing police for doing something they clearly believed was legal when they did it.

Since then, the Court has returned repeatedly to the rule, and the exceptions to it, and there is now some sentiment among the Justices that there are enough other restraints on police who engage in misconduct that, perhaps, the rule is not needed any more at all.  That view has not yet commanded a majority, so the Court continues to work through a more nuanced analysis of when the rule should, or should not, apply.  Criminal defense lawyers, in fact, complain — as did the lawyer involved in a new case now going before the Justices — that the exclusionary rule “is already full of holes.”

The kinds of evidence that may be affected by a fluctuating “exclusionary rule” may change, of course, as the Court reexamines the Fourth Amendment itself, and adopts differing interpretations of when a search or seizure may violate that Amendment.

The realignment of the exclusionary rule, and the revision of Fourth Amendment doctrine, are both at issue as the Court takes up the case of Willie Gene Davis — Davis v. U.S. (09-11328).

The case grows out of a routine police activity — stopping a car for a suspected traffic violation.  On April 27, 2007, police in Greenville, Ala., stopped a car in which Davis was a passenger.  The driver failed sobriety tests at the scene, was arrested, and put in a police cruiser.  An officer asked Davis his name, and he gave what turned out to be a false name.  The officer smelled alcohol on Davis’s breath, and noted his slurred speech.  Davis also was fidgeting with his jacket pocket, and the officer told him to stop.

Davis, ordered out of the car by the officer, removed his jacket even though the policeman told him not to do so.  He put it, with one pocket now zippered, on the front passenger seat of the car.  Someone standing around at the scene knew Davis, and told officers his real name.  Davis was then arrested for giving a false name, was handcuffed, and put in the back of a police car.  An officer then returned to the car, searched the jacket, and found a revolver in the pocket that Davis had zippered.

Later, Davis was charged with being a felon who had a gun illegally.  Before his conviction on that charge, Davis sought through his lawyer to have the gun barred as evidence, but that challenge was denied, and the gun was offered at the trial. Davis was convicted of the charge, and was sentenced to 220 months in prison.

In refusing to block the evidence, the trial judge relied upon the Supreme Court’s 1981 decision in New York v. Belton.  There, the Court had ruled that police officers, after stopping a vehicle legally, removing the suspect from it, and making an arrest, could search the vehicle and any containers found in it, and need not have a warrant for those further searches.  Thus, according to the trial judge, the search of the car and Davis’s jacket were legal under the Fourth Amendment.

Davis’s lawyer, however, had argued that the Supreme Court had recently agreed to hear a new case, testing the Belton precedent — the case of Arizona v. Gant.  After Davis was convicted, and his appeal was at the Eleventh Circuit Court, the Supreme Court decided Gant, casting aside a string of lower court rulings that had given an expanded interpretation of police authority under the Belton precedent.  The Gant ruling said that the search of a car following a lawful arrest could include the passenger compartment of the vehicle only if the suspect is not restrained and is within reaching distance of the inside of the vehicle, or if it was reasonable for the officers to believe that a search would turn up evidence of the crime for which the arrest had been made. In Davis’s case, his original arrest was for giving a false name to the police.

The Eleventh Circuit, however, ruled that, while the Gant precedent meant that Davis’s Fourth Amendment rights had been violated by the search that produced the revolver, Davis was not entitled to the exclusion of the revolver as evidence.  The police in his case had relied upon the then-valid Circuit Court interpretation of the Belton precedent, the Circuit Court said, so they were not at fault constitutionally in making the search.   Relying on a Circuit Court precedent, even though later overturned, was akin, the appeals court said, to relying on an invalid arrest warrant in the U.S. v. Leon case that produced the “good faith” exception to the exclusionary rule.  In Davis’s case, it said, the officers did not deliberately violate his rights, so the evidence they obtained was validly used against him.

Davis’s lawyer took the case on to the Supreme Court on June 8, 2010.

Petition for Certiorari

Davis’s petition, noting that the Supreme Court over time had expanded the “good-faith” exception to the exclusionary rule, sought to test whether the Court would make another extension and allow evidence to be admitted even when, because of “changing interpretations of law,” the police search would have turned out to be invalid under the Fourth Amendment. It posed this single question: “Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.”

There was, the petition asserted, “a deepening split in the lower courts” over that issue, with the Fifth, Tenth and Eleventh Circuits adopting the view that the “good faith” exception does allow the admission of evidence even if the search that produced it turned out later to have been unlawful.  That conflicts, Davis’s lawyers noted, with a ruling by the Ninth Circuit.  The Ninth Circuit’s approach was limited to cases where convictions had not yet become final, since it ruled that the Supreme Court’s long-standing precedents that a new rule announced by the Supreme Court should apply in all cases then on direct review.

The Court should step in to settle the issue, the petition said, because the question arises “every time a court issues a ruling in a criminal defendant’s favor that departs unexpectedly from earlier decisions.”

The Justice Department, while conceding that the lower courts were divided on the issue and thus that the question was worthy of Supreme Court review, opposed review of Davis’s petition.  “Although the United States agrees with [Davis] that the question presented is an important and recurring one on which there is a conflict among the courts of appeals and state supreme courts, this case is not a good vehicle to resolve that question,” the Department argued.  In Davis’s case, the police would have discovered the revolver anyway, under another exception to the exclusionary rule: the concept of “inevitable discovery.”  The car in which Davis had been riding was impounded by the Greenville police, so a subsequent “inventory search” would have turned up the gun, the government brief said.

The Court, that brief added, should review the question in a case in which the Justice Department had filed a petition — U.S. v. Gonzalez (docket 10-82).  In that case, the Department is challenging the Ninth Circuit’s refusal to accept the new “good faith” exception.  That case grew out of a police traffic stop in Yakima, Wash.  Ricardo Gonzalez, like Willie Davis, was convicted of being a felon who had a gun illegally.  The Ninth Circuit ruled that the gun should have been barred as evidence.

The Court granted review of Davis’s petition last Nov. 1.  Since then, the Court has taken no action on the government’s appeal in Gonzalez, obviously holding it for the coming decision in Davis.

Merits Briefs

Willie Davis’s brief on the merits provided a strong plea for the Supreme Court to protect its own institutional powers.  Its argument summary opened this way: “This is a case about the role of the Supreme Court in the development of Fourth Amendment law.  The Supreme Court occasionally must correct a mistaken precedent and set Fourth Amendment law on its proper course.  When this happens, the Court has always retained the power to enforce its new decision through the exclusionary rule….This case tests whether the Court should adhere to its traditional rule or should instead embark on a new experiment.”

What the adoption of a new approach, a new “good faith” reliance on precedent later cast aside, would do, the brief contended, is to make all new Fourth Amendment decisions by the Supreme Court apply only to future cases, essentially failing to correct the error in the case in which a new rule was announced and thus emerging only in an “advisory opinion” — something federal courts are not authorized to issue.

The brief then listed three reasons why the Court should avoid that tack.  First, it would run against long-standing precedent, which applies new rules to all cases still pending on direct review; second, it would mean that the government would always win, so there would be no case-or-controversy for the Court to decide when any settled precedent is challenged anew; and, third, it would take away the Court’s power to correct mistakes, since criminal defendants would have little incentive to seek new rules of law, turning the Fourth Amendment’s development into “a one-way street in favor of expanded government power.”

Davis’s lawyers also argued that the Court should hesitate to create another exception to the exclusionary rule because it has already poked many holes in it, so that “a defendant must successfully navigate a long trail of doctrines before courts actually grant relief” under the rule.  Because of that situation, the brief added, a decision not to create the new exception would result in only “modest costs” to law enforcement.

Like the Ninth Circuit’s approach to this dispute, the Davis brief relied quite heavily upon the notion that the Supreme Court’s precedents on applying new rules of law retroactively — at least to all cases in which convictions have not become final — will be compromised if new developments in Fourth Amendment law do not have a real-world impact.

The Justice Department’s brief on the merits is a singularly focused document: the exclusionary rule has one, and only one, function, and that is to deter police misconduct.  The decision that created the “good faith” exception to the rule — U.S. v. Leon — “reasoned that, because the exclusionary rule is designed only to deter future misconduct, suppression cannot further the rule’s ends in any appreciable way if the officer’s conduct was objectively reasonable,” the brief argued.

Just as the Court has adopted extensions of the “good faith” exception, according to the government, it should use the same logic to permit the use of wrongly obtained evidence “when an officer relies on binding appellate precedent.” It is “objectively reasonable” for an officer to rely on a court ruling in effect at the time, even if that ruling should later be overturned, it asserted.

This argument, of course, is strongly dependent upon Fourth Amendment jurisprudence relying upon the flexibility of the word “unreasonable.”  The Court, when it has pared back the protection of that Amendment, has done so by relying upon that flexibility.

Suggesting that Davis’s lawyers are trying to establish a new rationale for the exclusionary rule — that is, it gives defendants an incentive to challenge existing Fourth Amendment law, the Department argued that this runs counter to the single principle that the rule is justified only by a deterrence rationale.  A deterrence of defendants’ lawsuits is not what the Court meant in adopting the rule, the brief suggested.

Moreover, the government contended that defendants clearly do not lack incentives to go on making new Fourth Amendment claims, and there is always the prospect that conflicts will develop, given that there are 12 federal appeals courts and 50 state court systems weighing such claims.  Moreover, the Department added, the availability of civil damage lawsuits aimed at police for alleged misconduct will encourage police and local governments to foster proper police behavior.

Finally, the government sought to directly counter Davis’s argument that there will be little social cost if police are not allowed to rely on existing precedent to excuse conduct that later turns out to have been unlawful. In return for only “marginal” benefits to defendants, such a doctrine would result in heavy social cost, not only in impairing the “truth-finding function of trials,” but also in “releasing guilty defendants” and “damaging the public’s perception of justice and chilling valid police activity vital to public safety,” the U.S. brief said.

The case, for all of its potential importance, has drawn only modest amici involvement.  Only one such brief supports Davis: by the National Association of Federal Defenders.  The Justice Department has attracted the support of 29 states, the Criminal Justice Legal Foundation, and Wayne County, Mich.

The most aggressive of the amicus filings is the Criminal Justice Legal Foundation’s brief, arguing that “no other doctrine in modern American law has so seriously diminished the law and the judiciary in the public mind” as has the exclusionary rule.”  While this brief does not advocate the complete overruling of the rule, it did assert that the rule “should be confined to its minimum possible scope,” contending that “when it is invoked, it is almost always used to suppress reliable evidence….The exclusionary rule is the greatest legal engine ever invented for suppression of truth.”


Anyone inclined to make an easy prediction about the outcome of Willie Davis’s appeal should pause and re-read the Court’s decision two years ago in Arizona v. Gant — the precedent that Davis very much wants applied to his case.   The scrambled voting pattern in the Gant decision suggested that, for the Court, Fourth Amendment law is as challenging an area as any part of the criminal law, and does not yield clear patterns.

Two of the Court’s most conservative members — Justices Antonin Scalia and Clarence Thomas — were in the majority in Gant, along with liberal Justice Ruth Bader Ginsburg, and two liberal Justices now off the Court: David H. Souter and John Paul Stevens (the author of the majority opinion).  In dissent were Chief Justice John G. Roberts and Justice Samuel A. Alito, Jr., usually counted among the conservatives in criminal law matters, Justice Anthony M. Kennedy (centrist in many areas, conservative most of the time on criminal law), and moderately liberal Justice Stephen G. Breyer.

Stevens has since been replaced by Justice Elena Kagan, and Souter by Justice Sonia Sotomayor.  The chances are that, had they been on the Court for Gant, they might well have been in the majority for recasting police search authority following traffic stops.

Will the Court be as scrambled when it switches from substantive Fourth Amendment law to the exclusionary rule and its “good faith” exception?  Again, caution is in order when predicting: Justice Scalia is one of the exclusionary rule’s most fervent critics, and very likely would — if he had four other votes — overturn it entirely.  The Criminal Justice Legal Foundation’s amicus brief in this new case could provide all of the rhetorical complaints that Scalia would need to wipe out the rule (although he might well have a few more colorful comments of his own.)

The Justice Department, of course, has sought to make it very easy for the Court to reject Willie Davis’s plea: the exclusionary rule has only one single purpose, deterrence of police misconduct, and Davis simply cannot show that his preferred approach would have that effect, according to the Department.  Its merits brief has done a creditable job with its suggestion that Davis’s brief is too adventuresome for a Court that is, at a minimum, ambivalent about the exclusionary rule.

Davis’s lawyers, it is clear, are gambling on the Court seeing the case as a threat to its capacity to make its own rulings binding law on lower courts, and on the Court’s willingness, therefore, to have some policy objectives to justify the rejection of this new “good faith” exception to the rule.  That approach clearly has rhetorical merit, but it could run up against the simplicity and the hard logic of the government’s argument.

The Justices’ mood and questions during oral argument will bear close watching.

Recommended Citation: Lyle Denniston, Argument preview: Police and changing law, SCOTUSblog (Mar. 18, 2011, 3:42 PM),