Vol. 4, No. 1 | December 2009

Editor's Note:  The following discussion of the exclusionary rule consists of three selections.  The first provides H. Lee Harrell's analysis on the current status of the exclusionary rule, with a particular focus on the U.S. Supreme Court case Herring v. U.S. and on the Virginia Court of Appeals case Logan v. Commonwealth.  The second and third selections are an exchange between Harrell and Jack E. Call, discussing points made in the analysis.  

Feeling Left Out: The Exclusionary Rule in 2009

by H. Lee Harrell

Deputy Commonwealth's Attorney
Wythe County, VA
E-mail:  hlharrell@wytheco.org  

            Time was when you were hailed into court for a suppression hearing your case was in big trouble if you lost.  The defense attorney called you to testify about the stop or the search of his client.  If he succeeded in demonstrating to the court that law enforcement somehow violated his client’s rights against unreasonable search and seizure, then the case would get thrown out, right? Maybe not now.

            It has long been the belief that if a Fourth Amendment violation was established, any evidence that came into law enforcement’s possession after the violation would be suppressed.  In the vast majority of such cases, the suppression was devastating to the prosecution’s case and resulted in a dismissal.  Recent rulings from the Supreme Court of the United States and the Virginia Court of Appeals are changing these flawed presumptions.

            The exclusionary rule has existed in one form or another since before our nation was formed.  Ancient English common law, upon which our laws are formed, required suppression of evidence that was derived from unlawful state compulsion.1  The rule was given a backbone and teeth in Weeks v. U.S., 232 U.S. 383 (1914), where the Court precisely defined the rights granted under the Fourth Amendment and the remedy of suppression for flagrant violations. The rule was extended to state courts (by way of the fourteenth amendment) in Mapp v. Ohio, 367 U.S. 643 (1961).  What the rule has never demanded is the kneejerk exclusion of evidence.  Nevertheless, courts throughout Virginia have responded to the rule with just such a reflex. That appears to be changing.

            The Supreme Court of the United States has long maintained that the exclusionary rule is not an “if/then” rule (if the fourth amendment is violated, then suppression of evidence must occur).  Instead, the Court has historically and consistently held that, “[f]irst, the exclusionary rule is not an individual right and applies only where it ‘result[s] in appreciable deterrence.’”2  “We have repeatedly rejected the argument that exclusion is a necessary consequence of a fourth amendment violation.”3  The rule, instead, is to be deployed after a constitutional violation has been identified and after a court has determined that the deterrent effect of suppression outweighs the substantial cost to society.4   In weighing these competing interests, a court must look at the flagrancy and deliberateness of police misconduct.5

            The idea of deterring police conduct by using the exclusionary rule is necessarily linked (or so says the Supreme Court of the United States) to the level of culpability on the part of law enforcement.6  The Court has long maintained that if police mistakes are derived from accidents or simple negligence, the deterrent effect of exclusion is lost.7

            Seemingly growing weary of a reflexive application of the exclusionary rule, the Court in Herring v. U.S., 555 U.S. ____ 07513 (2009) makes clear the idea that a defendant seeking to suppress evidence must demonstrate that the police misconduct at issue results from “reckless disregard of constitutional requirements.”  That makes good sense; drop the nuclear bomb of suppression only when the misconduct is intentional or grossly negligent.  Herring was arrested based on a warrant that had been withdrawn (but the withdrawal had not been detected by the local sheriff’s office) and searched incident to arrest.  The search revealed methamphetamine and a gun.  Herring is a convicted felon.  In analyzing the case, the Court underscores a requirement that police misconduct be both deliberate and sufficiently culpable to warrant deterrence by way of exclusion.8 This has always been the rule, but it seems to have been largely ignored by lower courts who have blithely suppressed evidence whenever constitutional violations occurred.  The Court in Herring is saying:  enough.  Showing some impatience the Court says, “[i]n light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g. Leon, 468 U.S. at 909-910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its way.  Id. at 907-908 n. 6.’”9  Has the Court’s growing impatience had any effect on the way lower courts will handle fourth amendment violations?

            The Virginia Court of Appeals in Logan v. Commonwealth10 seems to suggest that they have finally gotten the message.  Logan was a probationer who was found with cocaine during a search for a wanted individual (not Logan).  After a tortured appellate history, the Court of Appeals ruled that although the fourth amendment may have been violated by the police during the seizure of Logan, the misconduct at issue was neither deliberate nor sufficiently culpable to warrant exclusion of evidence.11  In fact, the Court recognized that the legal issue at hand (whether the common areas of a boarding house are protected by the fourth amendment) is a quagmire about which even the brightest legal minds could have divergent opinions.12  Accordingly, law enforcement could easily make a mistake in such a situation without being reckless or culpable.  The Court stated, “[t]o be sure, in cases where experienced jurists disagree among themselves as to the legality of the police conduct, we can hardly expect law enforcement officers to predict which contesting juristic view will ultimately prevail and become binding precedent.”13  Given the standard re-announced in Herring, the Court in Logan found that although a technical violation of Logan’s fourth amendment rights may have occurred, suppression was not the appropriate remedy and upheld his probation violation.14

            This is but one case.  How courts throughout the Commonwealth adapt to the precedent of Herring remains to be seen.  If they follow the Court’s dictates, there should be considerably less suppression of evidence.  It is (fortunately) rare that police misconduct is intentional and deliberate.  In cases of simple, honest mistakes, suppression of evidence should not be the remedy.  The case should continue forward toward conviction despite the fact that the “constable has blundered.”15

Comments on Lee Harrell’s “Feeling Left Out: The Exclusionary Rule in 2009”

by Jack E. Call
Professor of Criminal Justice
Radford University
E-mail:  jcall@radford.edu

            My friend, Lee Harrell, has chosen to write about a very important decision from the Supreme Court, Herring v. U.S.,16 handed down in January of this year.  I agree with him that this decision potentially has great implications for the future of the exclusionary rule, but I disagree with the implication in his article that the Court now recognizes what could be called a full blown, good faith exception to the exclusionary rule.  Lee also cites a recent decision of the Virginia Court of Appeals, Logan v. Commonwealth,17 as evidence that the Court of Appeals has “finally gotten the message” – presumably that Virginia courts should not exclude evidence from criminal trials unless the constitutional violations by the police that produced the evidence were deliberate or reckless.  I believe that Logan stands for considerably less than this.  Let me explain why I disagree with Lee on these two points.

            In Herring, the police had arrested a person on the basis of a database entry indicating that there was a warrant out for Herring’s arrest.  A search incident to this improper arrest turned up evidence of a crime.  Unfortunately, the database entry was in error. The arrest warrant for Herring had been withdrawn weeks prior to his arrest, but the database error had not been corrected.  It was accepted as a fact in this case that the database error was due to negligence on the part of a law enforcement officer.

            In an earlier case, Arizona v. Evans,18 the Court had found evidence admissible that had been obtained as a result of a very similar improper arrest.  However, in that case, the database error was judged to be the responsibility of a clerk who worked for the courts – not a law enforcement officer.  In U.S. v. Leon,19 the Court had made it clear that the only purpose of the exclusionary rule is to control police behavior – not the behavior of other people in the criminal justice system.  In Leon, the legal error was made by a magistrate, not by a police officer.  Given the Court’s decisions in Evans and Leon, Herring raised the next logical question – what if the clerical error is the fault of a police officer and not an employee of the courts?  The Court decided it made no difference who made the error.

            Given the narrow issue before the Court, I believe it is improper to infer from its decision in Herring that evidence should be excluded when it is obtained unconstitutionally by the police only if the unconstitutional behavior was either deliberate or reckless.  I certainly agree with Lee that Chief Justice Roberts uses some very broad language about when the exclusionary rule applies in explaining the decision in Herring.  Perhaps the broadest statement made is Chief Justice Roberts’ assertion that “[a]s laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”  This statement (and the entire section in the opinion of which it is a part) suggests that the Court has always taken the position that evidence obtained in good faith by the police – even though later found to have been obtained unconstitutionally by a court – is admissible.  True, the Chief Justice only refers to “deliberate, reckless, or grossly negligent conduct,” but the only unlawful acts by the police that would not be included in this description would be honest, reasonable mistakes.

            That the exclusionary rule has traditionally been understood to extend beyond deliberate or reckless actions to honest, reasonable mistakes by the police is supported by considerable evidence.  For example, in his famous dissenting opinion criticizing the exclusionary rule in Bivens v. Six Unknown Named Agents,20 Chief Justice Burger bemoaned the fact that “honest mistakes have been treated in the same way as deliberate and flagrant … violations of the Fourth Amendment.”  Similarly, in his dissenting opinion in Stone v. Powell,21 Justice White argued that the exclusionary rule “should be substantially modified so as to prevent its application in those many circumstances where the evidence at issue was seized by an officer acting in the good-faith belief that his conduct comported with existing law and having reasonable grounds for this belief.”

            In 1982, after agreeing to hear the case of Illinois v. Gates,22 the Court asked the parties to argue an issue that they had not raised in the case: whether the exclusionary rule “should be modified, so as, for example, not to require the exclusion of evidence obtained in the reasonable belief that the search and seizure at issue was consistent with the Fourth Amendment.”  If a good faith exception for police errors that were not deliberate, reckless, or grossly negligent already exists, why would the Court have perceived any need to have this issue argued?23  (In its eventual disposition of the case, the Court – apologetically – did not address this issue after all, but it was not because the Court said the question had already been resolved by previous cases).

            So why did the Court use such broad language to decide such a narrow issue?  I suspect the Court is positioning itself to either establish a full blown, good faith exception to the exclusionary rule or eliminate the rule altogether.  (I believe the language used by the Chief Justice is more consistent with the former possibility).  To suggest that it now establishes a full blown, good faith exception is, in my opinion, to have Herring haul more freight that it can carry.

            I also respectfully submit that Lee reads too much into Logan.  I agree that it is an interesting case, but I do not think it is as portentous as Herring.  It is not entirely clear to me why the court in Logan thought it was necessary to cite Herring at all.  In Penn. Bd. Of Probation and Parole v. Scott,24 the U.S. Supreme Court held that the exclusionary rule does not apply to parole revocation hearings.  In an earlier stage of the Logan case, the Virginia Supreme Court held that the Scott decision does not apply to probation revocation hearings – only to parole revocation hearings.25  (I also agree wholeheartedly with Lee that the Logan case has had a “tortured appellate history”).  The court ruled that in probation revocation hearings, evidence may be excluded by a probationer if the police obtained it unconstitutionally and acted in bad faith.  In other words, the court applied the exclusionary rule to probation revocation hearings, but with a good faith exception.

            Therefore, the Virginia Court of Appeals was not deciding in Logan whether to apply a good faith exception to the exclusionary rule in criminal trials.  It wasn’t even deciding whether to apply a good faith exception to the exclusionary rule in probation revocation hearings.  That decision had already been made for the court by the Virginia Supreme Court.  The issue before the Court of Appeals in Logan was whether the police officers were acting in good faith when they went into the common area of the rooming house.

            Given the rather straightforward issue before the court in Logan, why did it refer at all to Herring?  The court appears to have done so for two reasons.  The first reason was to establish that the exclusionary rule only applies to evidence obtained by means of “deliberate and culpable” illegal behavior by the police.  Of course, as I have already argued, I believe that reads more into Herring than it actually says.  In any event, there clearly was no need to resort to Herring for this purpose.  The Virginia Supreme Court had already limited exclusion in probation revocation hearings to bad faith actions on the part of the police in its earlier ruling in Logan.

            The second reason for citing Herring is to make clear that the good faith exception to be applied at the probation revocation is an objective test, not a subjective one.  In other words, the issue in these cases is whether a reasonably well-trained police officer would have known her actions were unconstitutional and not whether the officer in the case at hand thought her actions were unconstitutional.  There certainly is nothing wrong with citing Herring for this purpose, but the court probably could have resolved the subjective/objective test issue without doing so.  In any event, there certainly is nothing earth-shattering about concluding that the good faith test to be applied in probation revocation hearings is objective in nature.

            Thus, I would conclude that the court’s reference to Herring in Logan was not at all essential to its resolution of the case.  What may be more important is that by referencing Herring, the court may be signaling that it has taken note of the case and likes what the case suggests about the possible future modification of the exclusionary rule.

            In the final analysis, my disagreements with Lee may not be all that substantial.  He seems to think that in Herring, the Court has established a good faith exception (or perhaps recognized a good faith exception) to the exclusionary rule.  I do not think the Court has gone that far in Herring, but I think it is heading in that direction.  In Logan, Lee seems to think that the Court of Appeals has virtually endorsed a good faith exception to the exclusionary rule.  Again, I don’t think the case goes that far, but I would not be at all surprised if that is where the Virginia Court of Appeals is heading as well.

The Exclusionary Rule in 2009: A Rejoinder

by H. Lee Harrell
Deputy Commonwealth's Attorney
Wythe County, VA
E-mail:  hlharrell@wytheco.org

            Jack may be right that my take on the decisions in Herring26 and Logan27 is too expansive, but hope springs eternal.  In an era of Supreme Court decisions such as Arizona v. Gant28 (significantly paring down the concept of vehicle searches incident to arrest from Belton) and Melendez-Diaz v. Massachusetts29 (seemingly requiring the in-court presence of the laboratory analyst in drug cases), prosecutors and law enforcement are feeling quite trod upon.  Trying to find kernels of good news these days keeps us going.

            That said, I do believe that the messages heralded in Herring and Logan are not novel or groundbreaking.  The Court has been sending this message for years, with an increasingly loud voice:  state courts are overusing the exclusionary rule.  Another recent example is Hudson v. Michigan,30 wherein the Court dealt a double victory to law enforcement.

            First, and most significantly, the Court in Hudson held that “no-knock” entries by police executing search warrants do not warrant exclusion of evidence.  That is extraordinary.  The “castle” doctrine has long been a prevailing notion in American jurisprudence.  The Court recognizes this but is not swerved.31  Having the police burst into your home unannounced is one of the most extreme forms of government intrusion, and yet, the Court essentially sanctions the practice by refusing to apply the remedy of the exclusionary rule.

Second, in arriving at its holding, the majority in Hudson gives a caution about the overuse of the exclusionary rule.32 Recognizing that initial holdings that gave rise to the exclusionary rule seem broad in application, the Court states that is has “long since rejected” the approach that any violation of a defendant’s fourth amendment rights should necessarily result in exclusion.33  The Court goes into detail about the rationale behind exclusion being the deterrence of police misconduct.  Justice Scalia emphasizes that societal pressures have resulted in a law enforcement culture that is more professional and concerned with the sanctity of constitutional rights.34  He cites, “increasing evidence that police forces across the United States take the constitutional rights of citizens seriously” as a reason why the exclusion of evidence  in this case is unreasonable as opposed to prior decisions such as Bivens35 and Weeks.36   Scalia justifies exclusion in those cases because law enforcement’s sensitivity to constitutional guarantees was primitive and in need of correction.37  In denying the exclusion of evidence from a “no knock” situation, he thinks that deterrence is less necessary today than fifty years ago.

It is in this context of Hudson that I find that Gates signals a weariness in the Court’s approach to fourth amendment violations.  The Court seems tired of reminding state courts that the exclusionary rule is not a knee jerk reaction to every perceived constitutional violation.  Whether that creates any substantive change in jurisprudence remains to be seen.  I agree with Jack that the facts and circumstances of Logan are somewhat limited to probation revocations, but, the Court of Appeals does appear to be heeding the call of Gant.  Virginia courts are routinely presented with alleged constitutional violations, so there will be plenty of opportunities for us to receive more information.  Maybe Jack will owe me a beer!

[1] Davies, Thomas. “Farther and Farther from the Original Fifth Amendment: The Recharacterization of the Right Against Self-Incrimination as a 'Trial Right' in Chavez V. Martinez”, Tennessee Law Review, Volume 70, pages 987-1045 (2003).

[2] United States v. Leon, 468 U.S. 897 at 909 (1984) (quoting United States v. Janis, 428 U.S. 433 (1976). 

[3] Id. at 905-906. 

[4] Illinois v. Krull, 480 U.S. 340, 352-353 (1987).

[5] See Mapp v. Ohio, 367 U.S. 643, 644-645 (1961). 

[6] See Herring v. U.S., 555 U.S. ____ 07513 (2009) (holding that when police make mistakes that are caused by isolated negligence attenuated from the search, rather than from recklessness or abuse, the exclusionary rule is inapplicable). 

[7] See United States v. Leon, 468 U.S. 897 at 922 (1984); Hudson v. Michigan, 547 U.S. 586, 591 (2006) (stating that exclusion has, “always been our last resort, not our first impulse.”)

[8] Herring v. U.S., 555 U.S. ____ 07513 (2009).

[9] Id.

[10] 53 Va. App. 520 (2009)

[11] Id. at 525.

[12] Id. at 526.

[13] Id.

[14] Id.

[15] Herring v. United States,  555 U.S. ____ 07513 (2009)

[16] 555 U.S. ___ (2009).

[17] 673 S.E.2d 496 (2009).

[18] 514 U.S. 1 (1995).

[19] 468 U.S. 897 (1984).

[20] 403 U.S. 388 (1971).

[21] 428 U.S. 465 (1976).

[22] 462 U.S. 213 (1983).

[23] See LaFave, Search and Seizure:  A Treatise on the Fourth Amendment (§1.3).

[24] 524 U.S. 357 (1998).

[25] Logan v. Com., 666 S.E.2d 346 (2008).

[26] Herring v. U.S., 555 U.S. ____ 07513 (2009).

[27] Logan v. Commonwealth, 53 Va. App. 520 (2009).

[28] 556 U.S. ___ (2009),

[29] 556 U.S. ___ (2009),

[30] 547 U.S. 586, 591 (2006).

[31] “The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one.”  Hudson v. Michigan, 547 U.S. 586, 589 (2006).

[32] Id. at 591-595. 

[33] Id. at 591. 

[34] Id. at 599. 

[35] 403 U.S. 388 (1971).

[36] 232 U.S. 383 (1914)

[37] Hudson v. Michigan, 547 U.S. 586, 597 (2006)

Disclaimer:  The content of the Virginia Police Legal Bulletin does not constitute legal advice, nor does it reflect the opinions or views of the Virginia Police Legal Advisors Committee.