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 In U.S. v. Leon, 468 U.S. 897, 905 (1984) a majority of the Supreme Court established the most significant exception to the “exclusionary rule,” allowing use of admittedly illegally obtained evidence where the officer acted in “objective good faith” reliance upon a warrant signed by a neutral and detached magistrate. U.S. v. Leon, 468 U.S. 897, 926 (1984).

Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

See, e.g., Massachusetts v. Sheppard, 468 U.S. 981, 104 S.Ct. 3424, 82 L.Ed.2d 737 (1984) [holding officer’s reliance on warrant “reasonable”, since it lacked particularity due to magistrate’s clerical error and magistrate said he would edit the form to include objects sought by police who relied on magistrate’s assertions]; U.S. v. Gomez, 652 F. Supp. 461 (E.D.N.Y. 1987) [holding a “reasonably well-trained officer” could not have determined that a magistrate-authorized search was illegal, under good-faith exception].

An officer can only rely on the decision of a neutral and detached magistrate, if the court has issued a warrant. Thus the “good faith” exception does not apply to warrantless searches. U.S. v. Winsor, 846 F.2d 1569 (9th Cir. 1988) (en banc). Nor does it apply where the magistrate has been mislead by the officer who obtained the warrant. Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667(1978) [good faith exception does not apply when determining whether officer obtained a warrant by making material misrepresentations to the magistrate in reckless disregard for the truth]. See also, United States v. Fisher, 22 F.3d 574, 578 (5th Cir. 1994) [“Warrants based on affidavits for lacking in evidence of probable cause as to render official belief in its existence entirely unreasonable do not fall within this exception”]. In addition, courts do not consider the Leon “good faith” exception when deciding whether to suppress evidence pre-indictment, pursuant to a motion for return of seized property. Ritchey v. Smith, 515 F.2d 1239, 1245 (5th Cir. 1975); Gurleski v. U.S., 405 F.2d 253 (5th Cir. 1968). The rationale for non-application of the “good faith” exception here, is that the court is exercising its authority to correct the misconduct of the prosecutor and his agents.

Other circumstances under which the “good faith” exception does not apply include:

when the issuing magistrate wholly abandons his judicial role, when the warrant is based on an affidavit so lacking in indicia of probable cause that belief that probable cause exists is entirely unreasonable and when the warrant is so facially deficient particularizing the place to be searched and things to be seized that the executing officers cannot reasonably presume it to be valid. U.S. v. Russell, 960 F.2d 421, 423 (5th Cir.), cert. denied, 506 U.S. 953 (1992).

The Court in Hudson v. Michigan, 547 U.S. 586 (2006), ruled that evidence need not be excluded when police violate the “knock-and-announce” rule. The opinion by Justice Scalia reaffirmed the validity of both the knock-and-announce rule and the “exclusionary rule” for evidence obtained by police in most cases of Fourth Amendment violation. However, the majority held that the exclusionary rule could not be invoked for evidence obtained after a knock-and-announce violation, because the interests violated by the abrupt entry of the police “have nothing to do with the seizure of the evidence.” Justice Scalia wrote that the knock-and-announce rule was meant to prevent violence, property-damage, and impositions on privacy, not to prevent police from conducting a search for which they have a valid warrant. The Court also found that the social costs of the exclusionary rule as applied to the knock-and-announce rule outweighed any possible “deterrence benefits”, and that alternative measures such as civil suits and internal police discipline could adequately deter violations. Justice Stephen Breyer wrote a dissenting opinion, and was joined by Justices Stevens, Souter, and Ginsburg. The dissent noted the Court’s long history of upholding the exclusionary rule and doubted that the majority’s cited precedents supported its conclusion. The dissent also expressed doubt that knock-and-announce violations could be deterred without excluding the evidence obtained from the searches.



“[T]he officer’s reliance on the magistrate’s probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable…and it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.” Leon, 468 U.S. at 922-23.

Moreover, this “objective reasonableness” standard must be applied to all officers involved, not merely those who executed the warrant, but also to those who obtained or provided information to secure it. Leon, 468

U.S. at 923 n.1. See also U.S. v. DeLeon-Reyna, 898 F.2d 486 (5th Cir. 1990).


The Leon Court “noted” that the deference accorded to a magistrate’s finding of probable cause does not preclude inquiry into the knowing or reckless falsity of the affidavit on which that determination was based. Leon, 468 U.S. at 317.

“Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth.”  Leon, 468 U.S. at 923.

Furthermore, material omissions from the officer’s affidavit have been considered equivalent to misstatements. United States v. Martin, 615 F.2d 318, 328 (5th Cir. 1980). Additionally, “recklessness can in some circumstances be inferred directly from the omission itself.” United States v. Tomblin, 46 F. 3d 1369 (5th Cir. 1995).

But see U.S. v. Ofshe, 817 F.2d 1508 (11th Cir. 1987) [holding a minor omission is not critical to a showing of probable cause].


The Leon Court also recognized the “good faith exception” to the exclusionary rule should not apply where the issuing magistrate wholly abandoned his role as a “neutral and detached” judicial officer. Leon, 468 U.S. at 923 [citing Lo-Ji Sales Inc. v. New York, 442 U.S. 319, 99 S.Ct. 2319, 60 L.Ed.2d 920 (1979) where a magistrate utilizing prepared form warrants, joined and led search].

But see U.S. v. Orozco-Prader, 732 F.2d 1076, 1088 (2d Cir.), cert. denied, 469 U.S. 845 (1984) [judge was neutral and detached despite his statement at time of issuing the search warrant that government agents and U.S. Attorney “know proof and know significance … and therefore the court has to accept their representations without question”]; U.S. v. Rome, 809 F.2d 665 (10th Cir. 1987) [the Magistrate’s failure to follow letter of Rule in issuing telephonic warrant by neglecting the requirements of (1) a verbatim record (2) a “duplicate original warrant” (3) particularity and (4) his immediate signature of the “original warrant” did not abandon detached and neutral role];

U.S. v. Breckenridge, 782 F.2d 1317 (5th Cir. 1985), cert. denied, 479 U.S. 837 (1986) [stating a neutral and detached magistrate who failed to read warrant affidavit had not abandoned his judicial role and did not spoil officer’s good faith reliance on warrant]; U.S. v. Harper, 802 F.2d 115 (5th Cir. 1986).


The Leon Court further indicated that the “good faith exception” to the exclusionary rule would not apply where the warrant affidavit was so totally lacking in probable cause as to make any reliance thereupon unreasonable. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

“Nor would an officer’s manifest objective good faith in relying on a warrant based on an affidavit ‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’.” Leon, 468 U.S. at 923.

See People v. Mitchell, 678 P.2d 990 (Colo. 1984) [Colorado “good faith” statute inapplicable where individual arrested and searched on strength of arrest warrant “totally devoid of factual support”.]

“…The warrant was void not because the facts supporting it fell somewhat below the Constitutional threshold of probable cause, but so far as the record shows, because there were no facts at all to support its issuance.” Mitchell, 678 P.2d at 2004.

See also U.S. v. Cardall, 773 F.2d 1128 (10th Cir. 1985) [a warrant should not be considered to be so deficient as to defeat an officer’s “good faith” reliance upon it unless the underlying affidavit is totally devoid of factual support]; Cassias v. State, 719 S.W.2d 585 (Tex.Crim.App. 1986) [refusing to read into the lengthy affidavit material that does not appear on its face, court holds that, under the “totality of the circumstances”, the “facts and circumstances presented …are too disjointed and imprecise to warrant a man of reasonable caution in the belief that marijuana and cocaine would be found at the described residence”].


Particularity of place to be searched or items to be seized:

The Court in Leon also recognized that reliance may be unreasonable where the warrant is “facially deficient”, such as failing to particularize the place to be searched or the things to be seized. Leon, 468 U.S. at 923.


U.S. v. Jones, 640 F.Supp. 143 (S.D. W.Va. 1986), rev’d, 822 F.2d 56 (4th Cir. 1987) [an executing officer could not have relied in objective good faith on a warrant that on its face reflects that it has not been executed on time]; Herrington v. State, 697 S.W.2d 899 (Ark. 1985). Most warrants require that they be executed within three days and during daylight hours.


U.S. v. Stout, 641 F. Supp. 1074 (N.D. Cal. 1986) [stating affidavit was totally lacking in any basis to determine either reliability of informant or dependability of his information].


In Davis v. U.S., 131 S.Ct. 2419 (2011) Officer Curtis Miller arrested Petitioner Willie Davis for using a false name during a routine traffic stop. Incident to the arrest, Officer Miller searched the vehicle and discovered a gun in his jacket. Davis was subsequently charged with being a convicted felon in possession of a firearm. Following a jury trial, Davis was convicted and sentenced to 220 months in prison. The U.S. Court of Appeals for the Eleventh Circuit found that while the search was illegal the evidence found in the vehicle was still admissible. Davis obtained a writ of certiorari on the issue of whether the good-faith exception to the exclusionary rule applies to a search that was authorized by precedent at the time of the search but is subsequently ruled unconstitutional.

The Court devotes a considerable amount of time to its pre-Arizona v. Gant search-incident-to-arrest cases because Davis’ arrest pre-dated Gant. At first glance, such an approach would seem most peculiar, until one reads the language that follows. The Court follows a crisp summary of New York v. Belton and similar automobile search-incident-to-arrest cases with a frightening description of the exclusionary rule; not as a personal, individual right, but rather as a tool only to find application when the benefit of deterring future violations of the Fourth Amendment outweighs the heavy social costs of letting the guilty go free. The Court adopts this stance to the absolute detriment of its older conception of the exclusionary rule as “synonymous with violations of the Fourth Amendment.” Arizona v. Evans, 514 U.S. 1, 13 (1995) (citing Whiteley v. Warden, Wyo. State Penitentiary, 401

U.S. 560 (1971)). While the Court asserts that good faith exceptions to the exclusionary are commonplace, and that its holding in this case remains in keeping with this precedent, it is essential to note that most of the decisions relied upon by the Court for this proposition pertain to warrant cases where the error was attributable to ministerial errors of the magistrate. Alternatively, in subsequently invalidated statute cases, the letter of the law was objectively ascertainable although illegal. In contrast, an officer’s understanding of court decisions undoubtedly requires officers to make subjective judgments impenetrable from scrutiny by reviewing courts. The Court endeavors to assuage such fears by assuring future defendants that there will still remain an incentive to litigate Fourth Amendment issues, albeit without any sort of “windfall to . . . one random litigant.” In any event, the Court admits than an exception to this judicially created exception to a judicially created remedy might exist in some extreme cases. Otherwise, cases involving officers who reasonably rely on binding appellate court precedent are not subject to the exclusionary rule.

As recently as March of 2013, the United States Court of Appeals for the First Ciruit in United States v. Sparks, 711 F.3d 58 (1st Cir. 2013), held that that the Davis good-faith exception is properly applied where new developments in law have “upended the settled rules on which police relied.” Sparks, 711 F.3d at 68.


All of the above exceptions enumerated by the Court appear to be based on circumstances in which “manifest objective good faith”… would fail because “no reasonably well-trained officer should rely on the warrant”. Leon, 468 U.S. at 923.


Just as courts may cumulate officers’ knowledge to determine whether probable cause existed to justify a search, officers obtaining or executing a warrant may not insulate their knowledge or good intentions from fellow officers acting in bad faith.

One can cumulate an officer’s “bad faith” in viewing the representations of even an “innocent” affiant.

Leon, 468 U.S. at 923 n.24.

“It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable cause determination. Nothing in our opinion suggests, for example, that an officer could obtain a warrant on the basis of a ‘bare bones’ affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search. ” Leon, 468 U.S. at 923 n.24.

Franks v. Delaware, 438 U.S. 154, 163, 98 S.Ct. 2674, 57 L.Ed.2d 667, 677, n. 6 (1978):

“…[P]remise   [-] police [can]not insulate once [sic] officer’s deliberate misstatement merely by relaying it through an officer-affiant personally ignorant of its falsity.”

U.S. v. Cortina, 630 F.2d 1207, 1212, 1217 (7th Cir. 1980)[the good faith exception would become a Maginot Line, laughingly circumvented by police if we are to insulate falsehoods in an affidavit from invalidating a warrant simply because the executing officer was unaware of the lies]; U.S. v. Calists, 838 F.2d 711, 714 (3d Cir. 1988) (en banc) [quoting Franks “police [can] not insulate one officer’s deliberate misstatement…”]; U.S. v. Coplon, 185 F.2d 629, 640 (2d Cir. 1950)[matters obtained through a violation of law by one official may not be introduced in evidence by the prosecution].

Also, a boot strap approach will not be permitted. An illegal search producing the basis for the probable cause recitation in an affidavit for a search warrant cannot make the subsequent search acceptable under the “good faith” exception to the exclusionary rule. U.S. v. Vasey, 834 F.2d 782 (9th Cir. 1981).



Warrants that fail to particularize the items to be seized are invalid because they would allow illegal general searches. Thus, officer’s “good faith” reliance upon a warrant will not save a search where the warrant relied upon is facially overbroad. U.S. v. Leary, 846 F.2d 592 (10th Cir. 1988).

U.S. v. Medlin, 842 F.2d 1194 (8th Cir. 1988) [allowing local law enforcement officers participating in search based on federal warrant that did not specify the items that were actually seized by the local officers, also called for suppression of items seized by federal agents that were expressly authorized by the warrant].

See also U.S. v. Fuccillo, 808 F.2d 173 (1st Cir. 1987); U.S. v. LeBron, 729 F.2d 533, 536-39 (8th Cir. 1984) [holding that a warrant for “other stolen property” or “any records which would document illegal transactions involving stolen property” lacks the requisite particularity].

A valid warrant should describe the things to be taken and the place to be searched with particularity such that it provides a guide to the exercise of informed discretion of the officer executing the warrant….

“We recognize that, despite the dangers, a warrant may issue to search and seize records if there is probable cause to believe that records which are evidence or instrumentality of a crime will be there and the description is stated with sufficient particularity….

The warrant in the instant case, without more, authorized a search for ‘any records, which would document illegal transactions involving stolen property’. There is no attempt to particularize the description of the property or of the records themselves. The only limiting factor is the reference to ‘stolen property’. As earlier discussed, this generic classification is not sufficient to provide any guidance to an executing officer. Absent as well is any explanation of the method by which the officers were to distinguish such records from any documents relating to legal transactions.” LeBron, 729 F.2d at 538–39.

U.S. v. Guarino, 729 F.2d 864 (1st Cir. 1984) [striking down a warrant authorizing seizure of “obscene” films “of the same tenor” as certain enumerated items]; U.S. v. Young, 745 F.2d 733 (2d Cir. 1984), cert. denied, 470 U.S. 1084 (1985) [“This particularity requirement serves three related purposes: preventing general searches, preventing the seizure of objects upon the mistaken assumption that they fall within the magistrate’s authorization, and preventing the issuance of warrants without a substantial factual basis.”]; U.S. v. Spilotro, 800 F.2d 959 (9th Cir. 1986) [items relating to loan sharking and bookmaking not described with sufficient particularity]; U.S. v. LeBron, 729 F.2d 533, 539 (8th Cir. 1984) [a search for any records that would show transactions in stolen property was too generic a classification and thus constituted an impermissible general search].

Contra U.S. v. Gomez, 652 F. Supp. 461 (E.D N.Y. 1987) [similar case with opposite result]; U.S. v. Burke, 718 F. Supp. 1130 (S.D.N.Y. 1989);

U.S. v. Buck, 813 F.2d 588 (2d Cir. 1987), cert. denied, 484 U.S. 857 (1987) [even though warrant lacked sufficient particularity, same was not so apparent that executing officers could not rely on the warrant, especially in light of fact that officers searching in 1981 could not reasonably have anticipated developments in the law];

U.S. v. Villegas, 899 F.2d 1324 (2d Cir. 1990) [“sneak peak” warrant authorizing covert entry to take pictures was held constitutional].

Search warrant which utterly fails to describe the persons or things to be seized is per se invalid, even if the particularized description is provided in search warrant application [Groh v. Martinez, 540 U.S. 551 (2004)].

The Exclusionary Rule does not apply to police errors in record keeping. See Herring v. U.S. 129 S.Ct. 695(2009).


 There must be sufficient “nexus” between probable cause and the place to be searched.

“For a probable cause determination to be meaningful there must be a nexus among (1) criminal activity,

(2) the things to be seized, and (3) the place to be searched.” W. LAFAVRE SEARCH AND SEIZURE: ‘A TREATISE ON THE FOURTH AMENDMENT ‘ 33.7(d) (1978). See also Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 358 (1974); U.S. v. Freeman, 685 F.2d 942, 949 (5th Cir. 1982); U.S. Maestas, 546 F.2d 1177, 1189 (5th Cir. 1977).

It also should be clear that an arrest at one location does not give sufficient particularized probable cause to believe evidence of that crime will be located at some distant location, even if same constitutes the arrestee’s residence. U.S. v. Gramlich, 551 F.2d 1359 (5th Cir.), cert. denied, 434 U.S. 866 (1977)[“This fact alone is insufficient to justify the inference that incriminating evidence existed at that residence”]. This is because warrants are directed against evidence of crime and not against persons. Thus, the fact that there is probable cause to arrest a person for a crime does not automatically give police probable cause to search his residence or other area in which he has been observed for evidence of that crime.” U.S. v. Savoca, 739 F.2d 220, 224 (6th Cir. 1984), reh’g, 761 F.2d 292 (6th Cir. 1985).

The affidavit in Gramlich stated that the defendant had been observed over a period of several weeks. During that time, he purchased a van, motorboat and radio equipment under an assumed name. The defendant was also known to possess a 23 foot motorboat named “Pronto” which, according to the affidavit had been docked at the pier outside of the defendant’s residence. Gramlich, 551 F.2d at 1362 n.7. The affidavit went on to relate that on several occasions the defendant had been observed piloting “Pronto” out into the Gulf of Mexico in order to rendezvous with other boats. Based upon the surveillance described, in addition to the arrest of the defendant fifty miles away while he was unloading marijuana from a motorboat, the magistrate granted a search warrant for the defendant’s house. The Fifth Circuit suppressed the evidence obtained as a result of that search because the information in the affidavit failed to establish an adequate connection between the residence searched and the alleged drug smuggling activities. U.S. v. Gramlich, 551 F.2d 1359 (5th Cir.), cert. denied, 434 U.S. 866 (1977).

Likewise, reliable information that a known felon has committed a burglary and was arrested with some of the proceeds some distance from his home, will not authorize a search of his residence. U.S. v. Flanagan, 423 F.2d 745 (5th Cir. 1970). See also U.S. v. Bailey, 458 F.2d 408 (9th Cir. 1972); U.S. v. Whitlow, 339 F.2d 975 (7th Cir. 1964); Gillespie v. U.S., 368 F.2d 1 (8th Cir. 1966).

“The statement (in an affidavit), even if reliable, that a named person who is a known felon has committed a burglary, plus possession by the suspect of some of the proceeds when arrested, does not without more authorize the issuance of a warrant to search the residence of the accused miles away.” Flannagan, 423 F.2d at 747.

In U.S. v. Green, 634 F.2d 1222 (5th Cir. 1981), the Fifth Circuit noted that while a “careful review of the affidavit reveals ample evidence from which the magistrate could conclude that (the defendant) was engaged in criminal activity in California,” . . . “no evidence, other than residence, was set forth in the affidavit that connected the Key West, Florida, home to the criminal activity. The motion to suppress should have been granted.” Green, 634 F.2d at 1225-26.

Similarly, in U.S. v. Lockett, 674 F.2d 843 (11th Cir. 1982) the only statement evidencing a nexus between explosives and the residence to be searched, in an affidavit reciting numerous other events and activities of George Lockett, read:

“On July 11, 1980, this affiant observed these premises from the public county road and I saw no structures which would indicate proper storage facilities on the premises for storing high explosives. Record, Vol. 1 at 16. There follows a hand written statement by the affiant to the effect that he believes that dynamite is on the premises.” Lockett, 674 F.2d at 845.

In the Eleventh Circuit’s view, “such a conclusory statement, without more, of course has no probative value.” As a result, the Lockett Court concluded that the affidavit set forth no facts from which the magistrate could infer that dynamite was located at that particular place”. Lockett, 674 F.2d at 846. See U.S. v. Algie, 721 F.2d 1039, 1042 (6th Cir. 1983) [fifteen phone calls from an apartment “which authorities knew to be used for gambling coupled with an affiant’s belief that telephones are often used to make lay-off bets”, is “insufficient to convince a reasonably prudent person that contraband or evidence of a crime would be found on the premises”].

Another court, however, has applied the good faith exception despite any lack of nexus between the house to be searched and the evidence seized. U.S. v. Hendricks, 743 F.2d 653 (9th Cir. 1984).

“Federal agents were in possession of a cocaine-bearing package from Brazil, which they anticipated would be picked up by the individual to whom it was addressed, …the warrant stated that the package ‘is now being concealed’ at defendant’s residence and added ‘the search warrant is to be executed only upon the condition that the above described box is brought to the aforesaid premises’.”

The Court concluded the warrant lacked probable cause and explained the magistrate abdicated to the agents “an important judicial function – the determination that probable cause exists to believe that the objects are currently in the place to be searched”. Nevertheless, the court determined that the agents acted in “reasonable reliance on the warrant and hence declines to order suppression of the fruits of the search”. Hendricks, 743 F.2d at 655.

See also U.S. v. Gant, 759 F.2d 484 (5th Cir. 1985); Commonwealth v. Way, 492 A.2d 1151 (Pa. 1985) [holding lack of substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid]; U.S. v. Marriott, 638 F. Supp. 333 (N.D. Ill. 1986).

But see U.S. v. Asselin, 775 F.2d 445 (1st Cir. 1985) [officers were found to have acted in “good faith” interpreting the word “premises” to include surroundings so as to authorize two searches of a disabled car adjacent to the carport and a birdhouse hanging from tree fifteen feet from trailer steps]; U.S. v. Kenney, 595 F. Supp. 1453 (D.C. Ma. 1984) [“probable cause existed to search safety deposit box for cash “because officers had probable cause to believe defendant was engaged in trafficking”, but there existed no nexus between the gold, silver and jewelry found in the box and suspected drug trafficking].


An “anticipatory warrant” must be explicit and very narrowly drawn, clearly setting out the anticipated triggering event, or the objectively, well-trained officer would not be entitled to rely upon same. U.S. v. Ricciardelli, 998 F.2d. 8 (1st Cir. 1993).

“[W]e find, without serious question, that the defects on the warrant’s face were apparent enough that the postal inspectors should have realized that it did not comport with the Fourth Amendment. The law was settled that the conditions governing the execution of anticipatory warrants must be explicit, clear, and narrowly drawn. The instant warrant plainly did not satisfy these criteria; and, furthermore, the principal omission in the warrant–the lack of any requirement that the contraband arrive at the premises–was both glaring and easily correctable. Examining the postal inspector’s actions in this light, it is crystal clear that they could, and should, have asked the magistrate to condition the search of appellant’s home on the delivery of the videotape there; failing both to insert this condition and to recognize the consequences of its omission constituted objectively unreasonable conduct. It follows, then, that attempting to execute an anticipatory search warrant bereft of such a limiting condition fell `outside the range of professional competence expected’ of federal agents.”

However, recently, the Supreme Court held that anticipatory warrants are not categorically unconstitutional per se. United States v. Grubbs, No. 04-1414, 126 S.Ct. 1494 (2006). Furthermore, since the Fourth Amendment particularity requirement only specifically pertains to the “place to be searced” and the “persons or things to be seized,” the actual triggering condition for an anticipatory warrant need not be set out in the warrant itself. Grubbs at 1500. Therefore, anticipatory warrants which are issued in advance of the triggering condition do not violate the Fourth Amendment.


The Supreme Court in Leon appeared to place the burden upon the prosecution “to establish objective good faith”.

“The good-faith exception for searches conducted pursuant to warrants is not intended to signal our unwillingness strictly to enforce the requirements of the Fourth Amendment, and we do not believe that it will have this effect. As we have already suggested, the good-faith exception, turning as it does on objective reasonableness, should not be difficult to apply in practice. When officers have acted pursuant to a warrant, the prosecutions should ordinarily be able to establish objective good faith without a substantial expenditure of judicial time.” Leon, 468 U.S. at 924.

See also U.S. v. Gant, 587 F.Supp. 128 (S.D. Tex. 1984), rev’d on other grounds 759 F.2d 484 (5th Cir. 1985), cert. denied, 474 U.S. 851 (1985). [allocating burden of proof upon the Government, “which if proved by the government, would save the evidence from the effects of the exclusionary rule”]; U.S. v. Hendricks, 743 F.2d 653, 656 (9th Cir. 1984)[“The standard to be employed [in determining the officers’ good faith reliance] is an objective one and the prosecution bears the burden of proof”].


The good faith exception has also been employed in other areas where law enforcement officers are acting in reliance upon the issuance of process by a grand jury or prosecutor on its behalf. U.S. v. Gluck, 771 F.2d 750 (3d Cir. 1985) [“good faith” exception applies to IRS summons based on facially valid grand jury disclosure order unauthorized under U.S. v. Baggot, 463 U.S. 476,103 S.Ct. 3164, 77 L.Ed.2d 785 (1983)].


The Supreme Court has extended the good faith exception to a warrantless administrative search conducted in objectively reasonable reliance upon a statute later held unconstitutional. Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 346 (1987). However, constraints similar to those set forth in Leon apply to such a search.

“A statute cannot support objectively reasonable reliance if, in passing the statute, the legislature wholly abandoned its responsibility to enact constitutional laws. Nor can a law enforcement officer be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional…. [T]he standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.” Krull, 480

U.S. at 355 [citing Leon, 468 U.S. at 919 n.10].

The Court also recognized the risks involved in its holding.

“It is possible, perhaps, that there are some legislators who, for political purposes, are possessed with a zeal to enact a particular unconstitutionally restrictive statute, and who will not be deterred by the fact that a court might later declare the law unconstitutional. …[W]e are not willing to assume …legislators … perform their legislative duties with indifference to the constitutionality of the statutes they enact. If future empirical evidence ever should undermine that assumption, our conclusions may be revised accordingly. Krull, 480 U.S. at 352 n.8 [citing Leon, 468 U.S. at 927-28.].

Four justices dissented against the majority’s empirical assumptions.

“Providing legislatures a grace period during which the police may freely perform unreasonable searches in order to convict those who might have otherwise escaped creates a positive incentive to promulgate unconstitutional laws [i]t cannot be said that there is no reason to fear that a particular legislature might yield to the temptation offered by the Court’s good faith exception.” Krull, 480 U.S. at 352 [O’Connor, J., dissenting].


In 2005, the Sixth Circuit examined a case in which the warrants on which police relied were themselves the fruit of the poisonous tree. See U.S. v. McClain, 444 F.3d 556 (6th Cir. 2005). In McClain, officers obtained a warrant based on an affidavit that “explicitly relied in part on evidence obtained during the initial warrantless search” of a property “and described the circumstance of that [warrantless] search.” McClain, 444 F.3d at 560. The court acknowledged that “a search carried out on a suspect’s premises without a warrant is per se unreasonble, unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’” Id. at 561 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 474–75 (1971)). “The question therefore [became] whether the good faith exception to the exclusionary rule can apply in a situation in which the affidavit supporting the search warrant is tainted by evidence obtained in violation of the Fourth Amendment.” Id. at 565. The court held that “the Leon good faith exception should apply despite an earlier Fourth Amendment violation.” Id.


 The “good faith” exception to the Fourth Amendment’s exclusionary rule does not apply to Rule 41(e)’s statutory suppression remedy for pre-indictment return and suppression of illegally seized items.

In re Motion for Return of Property Pursuant to Fed. R. Crim. P. 41(e), 681 F. Supp. 677 (D. Haw.) [while the judicially created post-indictment exclusionary rule contained in FED. R. CRIM. P. Rule 12(b)(3) is subject to judicially created exceptions such as Leon’s “good faith” exception, the Congressionally created “explicit textual remedy” created statutorily by FED. R. CRIM. P. Rule 41(e) is not subject to Leon’s Court created “good faith” exception].

Neither does the “good faith” exception apply to the suppression provision under wiretap law. 18 U.S.C. §2511.

However, a police officer’s reasonable mistake as to whether a particular vehicle is covered by a statutory scheme authorizing warrantless stops and inspections of commercial vehicles undermines the constitutionality of the stop and requires suppression of evidence discovered during it. Unlike stops based on individualized suspicion of criminal activity, stops based on the Fourth Amendment’s administrative search doctrine cannot be justified on the basis of an officer’s objectively reasonable mistake of fact, the court stressed. It also ruled that the good-faith exception to the exclusionary rule does not apply in these circumstances. See United States v. Herrera, 444 F.3d. 1238 (10th Cir. 2006)


The standard for applying the “good faith” exception to the exclusionary rule is an “objective,” not subjective one.

“We emphasize that the standard of reasonableness we adopt is an objective one. Many objections to a good-faith exception assume that the exception will turn on the subjective good faith of individual officers. ‘Grounding the modification in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment.’ The objective standard we adopt, moreover, requires officers to have a reasonable knowledge of what the law prohibits. U.S. v. Peltier, 422 U.S. 531, 542 (1975) [quoting Illinois v. Gates].

As Professor Jerold Israel has observed: “The key to the [exclusionary] rule’s effectiveness as a deterrent lies, I believe, in the impetus it has provided to police training programs that make officers aware of the limits imposed by the Fourth Amendment and emphasize the need to operate within those limits. [An objective good- faith exception] …is not likely to result in the elimination of such programs, which are now viewed as an important aspect of police professionalism. Neither is it likely to alter the tenor of those programs; the possibility that illegally obtained evidence may be admitted in borderline cases is unlikely to encourage police instructors to pay less attention to Fourth Amendment limitations. Finally, [it] …should not encourage officers to pay less attention to what they are taught, as the requirement that the officer act in ‘good faith’ is inconsistent with closing one’s mind to the possibility of illegality.”

In sum, the officer’s good faith reliance on a warrant must be objectively reasonable. And whether the officer acted in good faith is a question of law which receives an independent review in the courts of appeal. For example, the Supreme Court found that a mistake in the execution of a warrant might, under the circumstances of the case, warrant application of the “good faith” exception. However, the exception will not apply if officers are negligent in execution of a warrant and their mistake is unreasonable. Thus, the Court found the objective good faith standard was met where officers made a mistake conducting a search where the warrant did not authorize. The officers obtained a warrant for an apartment on the third floor of a building, but mistakenly thought the apartment named in the warrant covered the entire floor. The court held that the officers made a “good faith” mistake in searching the wrong apartment. Maryland v. Garrison, 480 U.S. 79, 107 S.Ct. 1013, 94 L.Ed.2d 72 (1987). But see U.S. v. Palacious, 666 F. Supp. 113 (S.D. Tex. 1987) [stating evidence is not admissible under good faith exception when arrest warrant is negligently executed thereby arresting wrong person; mistake was not reasonable].

While the Supreme Court has voiced concern over the “substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights” it leaves no question as to the rule’s continued viability. U.S. v. Leon, 468 U.S. 897, 907 (1984).

“The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern….

” Nevertheless, the balancing approach that has evolved in various contexts – including criminal trials –

forcefully suggest[s] that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the Fourth Amendment.” U.S. v. Leon, 468 U.S. 897, 907 (1984).

Despite the Court’s concern, a study regarding the practical effect of the “good faith” exception on warrants indicates no increase in their quality and quantity. Rather, some studies suggest that the effect of the Leon decision has been to encourage prosecuting authorities to seek warrants in situations where previously they would not. Police Executive Research Forum, The Effects of United States v. Leon on Police Search Warrant Policies and Practice (1988).

Texas’ Statutory equivalent to the Federal Exclusionary Rule also provides for a good faith exception. TEX. CODE CRIM. P. Art. 38.23(b) (Vernon 1989) [where a defective warrant has been issued by a magistrate and the warrant was based on probable cause, if the executing officer believes in good faith the warrant is valid, the evidence is nevertheless admissible].


But since the Supreme Court sets a floor below which our constitutional rights cannot fall and the states set the ceiling, states are free to provide greater protections than afforded citizens under the federal system. Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); Texas v. White, 423 U.S. 67, 72, 96 S.Ct. 304, 46 L.Ed.2d 209 (1975); Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

“[I]t is appropriate to observe that no state is precluded from adhering to higher standards under state law. Each state has the power to impose higher standards governing police practices under the state law than is required by the federal constitution.” Mosley, 423 U.S. at 120.

For example, Pennsylvania has rejected the Leon good faith exception to the exclusionary rule. See Commonwealth v. Edmunds, 586 A.2d 887 (Pa. 1991) [finding that the exclusionary rule also protects the individual’s right to privacy the Court rejected the Leon good faith exception]; State v. Santiago, 492 P.2d 657 (Haw. 1971) [rejecting Harris v. New York, 401 U.S. 222 (1971)]; State v. Johnson, 346 A.2d 66 (N.J. 1975) [rejecting waiver of constitutional right approach of Schneckloth v. Bustamonte, 412 U.S. 218 (1975)]; Blue v. State, 558 P.2d 636 (Alaska 1977) [rejecting Kirby v. Illinois, 406 U.S. 682 (1972)[interpretation of right to counsel at pre-indictment lineups)]; State v. Kaluna, 520 P.2d 51 (Haw. 1974) [rejecting Supreme Court’s interpretation of right to search incident to an arrest in U.S. v. Robinson, 414 U.S. 218 (1973) and Gustafson v. Florida, 414 U.S. 260 (1973)]; State v. Jackson, 688 P.2d 136 (Wash. 1984) [rejecting the Gates “totality” test]; State v. Sidebotham, 474 A.2d 1377 (N.H. 1984) [Jones-type automatic standing held still available in New Hampshire]; State v. Bolt, 689 P.2d 519 (Ariz. 1984) [refusing to allow securing premises for purposes of obtaining warrant as per Segura]; Sanchez v. State, 707 S.W.2d 575 (Tex.Cr.App. 1986) [noting Independent State Constitution restricts use of even uncounseled silence]; State v. Jewitt, 500 A.2d 233 (Vt. 1985); State v. Young, 867 P.2d 593 (Wash. 1994).

“Since 1970 there have been over 250 cases in which state appellate courts have viewed the scope of rights under state constitutions as broader than those secured by the federal Constitution as interpreted by the U.S. Supreme Court….. ‘A lawyer today representing someone who claims some constitutional protection and who does not argue that the state constitution provides that protection is skating on the edge of malpractice’. …

One longs to hear once again of legal concepts, their meaning, and their origin. All too often legal argument consists of litany of federal buzz words memorized like baseball cards…

To paraphrase Jefferson, we might as well require a man to wear still the coat which fitted him as a boy as to educate a law student in this time of post-Warren counter-revolution as if there had been no resurrection of federalism and state judicial independence. It is small wonder that lawyers are confused or baffled when they decide to engage in independent interpretation of the Vermont Constitution.

This generation of Vermont lawyers has an unparalleled opportunity to aid in the formulation of a state constitutional jurisprudence that will protect the rights and liberties of our people, however the philosophy of the

U.S. Supreme Court may ebb and flow. The development of state constitutional jurisprudence will call for the exercise of great judicial responsibility as well as diligence from the trial bar. It would be a serious mistake for this court to use its state constitution chiefly to evade the impact of the decisions of the U.S. Supreme Court. Our decisions must be principled, not result oriented.” State v. Jewitt, 500 A.2d 233 (Vt. 1985).

The Supreme Court dismissed as improvidently granted a writ of certiorari on the ground that the court below had rested its suppression decision “on independent and adequate state grounds”. This was in spite of the fact that the Court had decided the same issue on the same day differently in a Federal case where the decision below rested solely on Federal Constitution standards, reaffirming that States are free to prescribe greater protections for their citizenry. Florida v. Casal, 462 U.S. 637, 103 S.Ct. 3100, 3103, 77 L.Ed.2d 277 (1983).

Even in Gates, the Supreme Court recognized that a different rule would attach if it were considering “actions of state officials under state Statutes.”

“Due regard for the appropriate relationship of this Court to state courts, McGoldrick v. Compagnie General, 309 U.S. 430, 435-36 (1940); demands that these courts be given an opportunity to consider the constitutionality of the actions of state officials …we permit a state court, even if it agrees with the state as a matter of federal law, to rest its decision on an adequate and independent state ground.” Gates, 462 U.S. at 221.

In California v. Ramos, the Supreme Court, speaking through Justice O’Connor, reiterated that:

“It is elementary that States are free to provide greater protections in their criminal justice system than the Federal Constitution requires.” California v. Ramos, 463 U.S. 992, 103 S.Ct. 3446, 3459-60, 77 L.Ed.2d 1171 (1983).

However, note that the Texas Court of Criminal Appeals, in an en banc opinion held that the Texas Constitution contains no requirement that a seizure or search must be authorized by a warrant, and any seizure or search that is otherwise reasonable will not be found to be in violation of Texas Constitution because it was not authorized by a warrant and that the Texas Constitution does not offer greater protection than the Fourth Amendment and may offer less protection. Hulit v. State, 982 S.W.2d 431 (Tex. Crim. App. 1998).

Additionally, the court added that it had “expressly conclude[d] that this court, when analyzing and interpreting Art. I, § 9, Tex. Const., will not be bound by Supreme Court decisions addressing the comparable Fourth Amendment issue,” quoting Heitman v. State, 815 S.W.2d 681, 690 (Tex. Crim. App. 1991). See also Polk v. State, 704 S.W.2d 929, 934 (Tex.Cr.App. 5-Dist. 1986); Oliver v. State, 711 S.W.2d 442, 445 (Tex.App.- Ft. Worth, 1986) [the independent source and inevitable discovery exceptions to the judicially created exclusionary rule do not apply to article 38.23 and will not, short of an amendment]; Commonwealth v. Upton, 476 N.E.2d 548 (1985) [two-pronged Aguilar-Spinelli test retained for state law purposes instead of the Gates totality of the circumstances standard. Court cited that the Aguilar standard had been working well for twenty years, encouraged careful police work and tended to reduce the number of unreasonable searches]; State v. Jackson, 688 P.2d 136 (Wash. 1984).


A number of state courts have rejected the Leon “good faith” exception to the exclusionary rule on state constitutional grounds: State v. Oakes, 598 A.2d 119 (Vt. 1991).

“By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court’s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court’s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates [our State Constitutional provisions], and would deserve those rights.

“When the [United States Supreme] Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the `costs’ of excluding illegally obtained evidence loom to exaggerated heights and where the `benefits’ of such exclusion are made to disappear with a mere wave of the hand.

“The exclusionary rule’s deterrent effect, however, does not rest primarily on `penalizing’ an individual officer into future conformity with the Constitution. Rather, it rests on `its tendency to promote

institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.’…It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to `penalize’ the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance.” State v. Oakes, 598 A.2d 119 (Vt.  1991).

See also Commonwealth v. Edmunds, 586 A.2d 887, 899 (Pa. 1991).

“Indeed, we disagree with that Court’s suggestion in Leon that we in Pennsylvania have been employing the exclusionary rule all these years to deter police corruption. We flatly reject this notion. We have no reason to believe that police officers or district justices in the Commonwealth of Pennsylvania do not engage in ‘good faith’ in carrying out their duties. What is significant, however, is that our Constitution has historically been interpreted to incorporate a strong right of privacy, and an equally strong adherence to the requirement of probable cause under Article 1, Section 8. Citizens in this Commonwealth possess such rights, even where a police officer in ‘good faith’ carrying out his or her duties inadvertently invades the privacy or circumvents the strictures of probable cause. To adopt a ‘good faith’ exception to the exclusionary rule, we believe, would virtually emasculate those clear safeguards which have been carefully developed under the Pennsylvania Constitution over the past 200 years.” Commonwealth v. Edmunds, 586 A.2d at 899.

See State v. Carter, 370 S.E.2d 553 (N. C. 1988); State v. Marsala, 579 A.2d 58 (1990), remanded, 620 A.2d 1293 (Conn. 1993).

“Initially, we note that the exclusionary rule, although primarily directed at police misconduct, is also appropriately directed at the warrant issuing process, and that it is somewhat odd to suppose that the exclusionary rule was not designed to deter the issuance of invalid warrants      If we were to adopt the good faith exception, our practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an ‘objectively reasonable’ belief in its existence. Absent a meaningful necessity to review probable cause determinations, we conclude that close cases will become ‘both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest’ In short, we are simply unable to sanction a practice in which the validity of search warrants might be determined under a standard of ‘close enough is good enough instead of under the ‘probable cause’ standard mandated by article 1 section 7, of our state constitution.” State v. Marsala, 579 A.2d 58 (1990), remanded, 620 A.2d 1293 (Conn. 1993).

See also State v. Guzman, 842 P.2d 660, 672, 677 (Idaho 1992).

“In sum, the United States Supreme Court has abandoned the original purposes of the exclusionary rule as announced in Weeks and adopted by this Court in Arregui, in that the federal system has clearly repudiated any purpose behind the exclusionary rule other than that of a deterrent to illegal police behavior. Thus, the change in federal law has provided an impetus for a return by this Court to exclusive state analysis The exclusionary rule unencumbered by the good faith exception provides incentives for the police department and the judiciary to take care that each warrant applied for and issued is in fact supported by probable cause. In addition to encouraging compliance with the constitutional requirement that no warrant shall issue but upon probable cause, it also lessens the chances that innocent citizens will have their homes broken into and ransacked by the police because of warrants issued upon incomplete or inaccurate information. We believe these are laudable effects of the exclusionary rule which appear to have gone unrecognized by the Leon majority.” State v. Guzman, 842 P.2d at 672, 677.

“The Leon good faith exception contemplates that appellate courts defer to trial courts and trail courts defer to the police. It fosters a careless attitude toward details by the police and issuing judicial officers and it even encourages them to attempt to get away with conduct which was heretofore viewed as unconstitutional…The decision in Leon represents a serious curtailment of the Fourth Amendment rights of the individual. But under the broader protection guaranteed the individual under our State Constitution, the State is not permitted to introduce evidence in its case in chief which has been seized without probable cause.” State v. Novembrino, 491 A.2d 37, 45- 46 (N.J. 1985), aff’d, 519 A.2d 820 (1987).

“Whether or not the police acted in good faith here, however, the Leon rule does not help the People’s position. That is so because if the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action and a positive incentive is provided to others to engage in similar lawless acts in the future. We therefore decline, on State constitutional grounds, to apply the good-faith exception the Supreme Court stated in United States v. Leon.” People v. Bigelow, 488 N.E.2d 451 (N.Y. 1985).

Other state courts have come to the same conclusion on statutory grounds.

See Commonwealth v. Upton, 476 N.E.2d 548 (Mass. 1985);

But see State v. Wills, 524 N.W.2d 507 (Minn. App. 1994); Gordon v. State, 801 S.W.2d 899 (Tex. Cr. App. 1990); Mobley v. State, 834 S.E.2d 785 (2019).

Texas has a statutory exclusionary rule, TEX. R. CRIM. P. Art. 38.23(a) which provides that:

“No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.” TEX. R. CRIM. P. Art. 38.23(a).

In 1987, the Texas legislature amended that statute, TEX. R. CRIM. P.    Art. 38.23(b) to include a “good faith” exception:

“It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based upon probable cause.” TEX. R. CRIM. P. Art. 38.23(b).

However, rather than creating a state statutory “good faith” exception, the Texas Court of Criminal Appeals has interpreted the language of this particular statute to constitute an express legislative rejection of any Leon “good faith” exception.

“We also note the appeals court was incorrect in finding the statute a codification of United States v. Leon,… because Art. 38.23(b) requires a finding of probable cause, while the exception enunciated in Leon appears more flexible in allowing a good faith exception if the officers’s belief in probable cause is reasonable. Thus, we must direct our attention to the validity of the warrant and affidavit without recourse to any ‘good faith’ exception to the warrant requirement.” Gordon v. State, 801 S.W.2d 899, 912-13 (Tex. Cr. App. 1990).

Still others have rejected the good faith exception on the basis of judicial opinion.

State v. Grawien, 367 N.W.2d 816 (Wisc.), rev. denied, 371 N.W.2d 375 (1985);

State v. Joyce, 639 A.2d 1007 (1994).


 See Heien v. North Carolina, 135 S.Ct. 530 (2014).

Heien involved a traffic stop initiated because the initiating police officer misinterpreted a North Carolina statute involving break light requirements. The officer believed that the statute required all lights on the rear of the vehicle to be in good working order. However, North Carolina courts ruled all rear brake lights were not required to function, but rather only one break light. The majority opinion, written by Chief Justice Roberts, held that the police officer’s mistake of law was still sufficient to satisfy Fourth Amendment requirements for conducting a traffic stop. That was because the mistake of law was a reasonable one. That ruling is interesting, because the Court seems to say that a reasonable mistake of law by the government, when conducting a search, does not necessarily violate the Fourth Amendment. In her dissent, Justice Sotomayor touches on this potential consequence of the majority opinion. She states, when discussing the good-faith exception: “More fundamentally, that is a remedial concern, and the protections offered by the Fourth Amendment are not meant to yield to accommodate remedial concerns. Our jurisprudence draws a sharp ‘analytica[l] distinct[ion]’ between the existence of a Fourth Amendment violation and the remedy for that violation. Citing to Davis, 564 U.S., at, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (slip op., at 14).

See Utah v. Strieff, 136 S. Ct. 27 (2015).

On January 16, 2015, the Supreme Court of Utah decided Utah v. Strieff, 357 P. 3d 532 (cert. granted), 136 S. Ct. 27, (2015), and held that an officer’s discovery of outstanding arrest warrant during an unlawful arrest did not remove taint under the attenuation exception to the exclusionary rule. There, an anonymous message was left on a drug tip line that narcotics activity was taking place at a residence. Id. at 536. Throughout the week, an officer monitored the home for about 3 hours total and observed what he felt was suspicious “short term traffic” at the home. Id. He thus determined that the traffic indicated possible drug sales activity. Id. During his observations, the officer did not see Strieff enter the home but saw him leave the residence and walk toward a convenience store. Id. The officer ordered Strieff to stop so that he could ask what was going on in the home. Id. The officer asked Strieff for his identification, to which he complied, and discovered Strieff had an outstanding traffic warrant. Id. The officer arrested Strieff based on this information and found a baggie of methamphetamine and drug paraphernalia during the search incident to arrest. Id. The Supreme Court of Utah held that the attenuation doctrine is limited to circumstances involving a defendant’s independent acts of free will. Id. at 544. The court ultimately held that Strieff was entitled to suppression of the evidence secured during the search incident to his arrest, as the attenuation doctrine was not a viable exception to the exclusionary rule for the State in Strieff’s case. Id. at 546. The Supreme Court granted certiorari on October 01, 2015. On February 22, 2016, the first oral arguments were heard on the case since the passing of Justice Scalia. The government argued that the officer’s stop was a reasonable and good faith mistake and that suppression would harm society far more than deterring similar mistakes. Justice Sotomayor expressed her concern that this approach would give too much latitude to law enforcement, and Justice Kagan added that the treat of this behavior is especially serious in lower-income communities where many residents have outstanding warrants for minor infractions.1 To date, this case has not yet been decided, but it will be interesting to see if the Supreme Court will take the opportunity to address some of the confusion surrounding the Exclusionary Rule when it does issue an opinion.


  1 The Supreme Court and Police Searches, The New York Times, Feb. 23, 2016, available at:


Because obtaining a warrant interposes the “informed and deliberate” judgment of “a neutral and detached magistrate” rather than leaving such critical decisions, such as probable cause determinations, to those “engaged in the often competitive enterprise of ferreting out crime”, the preferred practice is to obtain a warrant. U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 3417, 82 L.Ed.2d 677 (1984); Michigan v. Clifford, 464 U.S. 287, 104 S.Ct. 2668, 78 L.Ed.2d 477 (1984); Johnson v. U.S., 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed.2d 436 (1948).

Thus, warrantless searches are presumed to be unreasonable and the burden is on the government to show that some exception to the warrant requirement applies. Having probable cause to conduct a search will not suffice to validate it. Unless the failure to obtain a warrant is excused under one of the recognized exceptions to the warrant requirement, the search is illegal. Thompson v. Louisiana, 469 U.S. 17, 105 S.Ct. 409, 83 L.Ed.2d 246 (1984). Accordingly,”in a doubtful or marginal case a search conducted pursuant to a under warrant may be sustained where without one it would fail.” U.S. v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965);

U.S. v. Bursey, 491 F.2d 531, 534 (5th Cir. 1974).


FED. R. CRIM. P. Rule 41(a) provides that only a federal magistrate or a judge of a “state court of record within the district wherein the property is located” may issue a federal search warrant. Accordingly, Municipal Judges who are not judges of “courts of record” within the state have no authority to issue warrants.

U.S. v. Sturgeon, 501 F.2d 1270 (8th Cir. 1974); U.S. v. Perez, 375 F. Supp. 332 (W.D. Tex. 1974).

But see U.S. v. Comstock, 805 F.2d 1194 (5th Cir. 1986), cert. denied, 481 U.S. 1022 (1987) [federal search pursuant to state warrant required that officers had good faith belief that J.P. was court of record].


FED. R. CRIM. P. Rule 41(d) provides:

“The officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. The return shall be made promptly and shall be accompanied by a written inventory of any property taken. The inventory shall be made in the presence of the applicant for the warrant and the person from whose possession or premises the property was taken, if they are present, or in the presence of at least one credible person other than the applicant for the warrant or the person from whose possession or premises the property was taken, and shall be verified by the officer. The federal magistrate shall upon request deliver a copy of the inventory to the person from whom or from whose premises the property was taken and to the applicant for the warrant.” FED. R. CRIM. P. Rule 41(d).

While neither the Fourth Amendment nor Rule 41 require that the search warrant be physically present prior to commencing the search, Katz v. U.S., 389 U.S. 347, 355, n. 16, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); at least one court has implied that officers may be required to present the warrant before vacating the searched premises.

“[L]aw enforcement officials are not constitutionally required to present a copy of the search warrant prior to commencing the search, so long as the previously issued warrant is presented the officers vacated the premises.” U.S. v. Hepperle, 810 F.2d 836, 839 (8th Cir. 1987), cert. denied, 483 U.S. 1025 (1987) [emphasis added].

But see U.S. v. Marx, 635 F.2d 436, 441 (5th Cir. 1981) [holding failure to deliver copy of search warrant to party whose premises were searched until day after search did not invalidate search in absence of showing of prejudice; violations of Rule 41(d) essentially ministerial in nature];

U.S. v. McKenzie, 446 F.2d 949, 954 (6th Cir. 1971) [holding absence showing of prejudice, irregularities in Rule 41(d) procedures do not void an otherwise valid search].


Federal officers have only those powers to arrest and search specifically granted by Congress.

(a)    Postal Inspectors:

Alexander v. U.S., 390 F.2d 101 (5th Cir. 1968); U.S. v. Chapman, 420 F.2d 925 (5th Cir. 1969); U.S. v. Montos,

421 F.2d 215 (5th Cir. 1970); U.S. v. Davis, 328 F. Supp. 350 (E.D. La. 1971).

(b)    Immigration Officers:

An Immigration Officer has authority pursuant to this statute to search only for aliens and consequently a search of any place or thing not reasonably susceptible of concealing an alien is unreasonable.

Roa-Rodriguez v. U.S., 410 F.2d 1206 (9th Cir. 1969) [searching jacket]; U.S. v. Hortze, 179 F. Supp. 913 (S.D. Cal. 1959) [searching cigarette package]; U.S. v. Winer, 294 F. Supp. 731 (S.D. Tex. 1969) [searching under seat of small auto]; Contreras v. U.S., 291 F.2d 63 (9th Cir. 1961) [searching paper sack]; U.S. v. Lujan-Romero, 469 F.2d 683 (9th Cir. 1972) [searching footlocker].

But see U.S. v. Miranda, 426 F.2d 283 (9th Cir. 1970) [upholding a search by immigration officers of the 3 inch space between the radiator and the hood of the defendant’s automobile].

Note that in INS v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), the Supreme Court approved “factory surveys” where INS agents enter a factory or work site pursuant to a warrant or the consent of an employee in order to question employees about their citizenship, holding the practice is not a “seizure” of the employees within the meaning of the Fourth Amendment and in an individual workers case amounts to “mere consensual encounter” and not a detention or seizure:

“The presence of agents by the exits posed no reasonable threat of detention to these workers while they walked throughout the factories on job assignments. Likewise, the mere possibility that they would be questioned if they sought to leave the buildings should not have resulted in any reasonable apprehension by any of them that they would be seized or detained in any meaningful way. Since most workers could have had no reasonable fears that they would be detained upon leaving, we conclude that the work forces as a whole were not seized.” INS v. Delgado, 466 U.S. at 219.

However, “INS has ‘no discretion with which to violate constitutional rights’.” International Molders v. Nelson, 799 F.2d 547, 551-52 (9th Cir. 1986) [upholding district court finding of systematic Fourth Amendment violations relying on LaDuke v. Nelson, 762 F.2d 1318, 1324, n. 8 (9th Cir. 1985)].

(c)    FBI:

Border searches are authorized under 19 U.S.C. ‘ 482 only as to those officers Congressionally empowered to stop and board vessels for that purpose and the FBI has not had such authority delegated to it.

U.S. v. Soto-Soto, 598 F.2d 545, 549-50 (9th Cir. 1979).

“The search was conducted by an FBI Agent not a customs or immigration officer. There was no delegation of authority to this agent to conduct this search. The FBI agent surpassed his authority as an FBI agent and can claim no additional authority from other statutes. He ignored the divisions of authority which Congress carefully legislated.”

(d)    U.S. Marshals:

U.S. v. Watson, 423 U.S. 411, 420, 96 S.Ct. 820, 46 L.Ed.2d 598, 607 (1970),

“In 1792 Congress invested U.S. Marshals and their deputies with the same powers in executing the laws of the U.S. as sheriffs and their deputies in their several states have by law in executing the laws of that state.”

(e)    Double Duty:

In Texas, Immigration officers are often designated as “customs agents” as well. This fiction has been held to enable such officers to stop a vehicle as immigration officers for aliens and to search the vehicle as customs agents for contraband. U.S. v. Thompson, 475 F.2d 1359, 1362-3 (5th Cir. 1973); U.S. v. McDaniel, 463 F.2d 129,

134 (5th Cir. 1972), cert. denied, 413 U.S. 919 (1973).

Contra U.S. v. Hortze, 179 F. Supp. 913 (D.C. Cal. 1959).



“[M]ost every peace officer possesses in common with all other peace officers the same powers, duties and responsibilities.” Preston v. State, 700 S.W.2d 227 (Tex.Crim.App. 1985) [searching by campus police].


Searches conducted by private individuals without the assistance, knowledge, collusion, encouragement or approval of any governmental entity or agent do not fall within Fourth Amendment protections. Walter v. U.S., 447 U.S. 649, 656-7, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980) [“a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment”]; Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed.2d 1048 (1921).

“The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in …previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies.” Burdeau v. McDowell, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed.2d 1048 (1921).

See also U.S. v. Janis, 428 U.S. 433, 456, n. 31, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976)[“It is well established

…that the exclusionary rule, as a deterrent sanction, is not applicable where a private party or a foreign government commits the offending act.”]; U.S. v. Coleman, 628 F.2d 961, 965 (6th Cir. 1980)[“[T]he Fourth Amendment proscribes only governmental action, and does not apply to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the government or with the participation or knowledge of any governmental official    Since the police did not instigate, encourage, or participate in the search of the truck, the search by [the private party] was outside the scope of the Fourth Amendment.”]; U.S. v. Bonfiglio, 713 F.2d 932, 939 (2d Cir. 1983), abrogated by Ruggiero v. Krzeminski, 928 F.2d 558 (2d Cir. 1991) [“[A] wrongful search or seizure by a private party does not violate the Fourth Amendment or deprive the government of the right to use evidence it has lawfully obtained from a private party.”]; U.S. v. Thomas, 613 F.2d 787, 792 (10th Cir.), cert. denied, 449 U.S. 888 (1980)[“It is well settled that independent searches by private citizens are unaffected by Fourth Amendment prohibitions against unreasonable searches and seizures, and that results thereof constitute admissible evidence.”].

However, where it can be shown that Government authorities participated in a search or seizure at some stage, then Fourth Amendment protections will be implicated, even though the search was not originated or requested by police authorities.

And in Texas, searches by private citizens are subject to suppression under Article 38.23 of the Texas Rules of Criminal Procedure. The provision excludes evidence obtained by illegal means, who ever obtains it.

ART. 38.23 Evidence Not to be Used.

 “No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of American, shall be admitted in evidence against the accused on the trial of any criminal case.”

At a time when some judges are displaying hostility to the Constitutional exclusionary rule (if not the Fourth Amendment itself), it is important to remember that the legislative representatives of the people of Texas enacted and repeatedly reenacted a broader, statutory rule of exclusion long before it was required by federal courts. . . .

See also MCCORMICK & RAY, 1 TEXAS LAW OF EVIDENCE 473 (2d Ed. 1956).

“The Texas statute lays down a rule far broader than that existing in any other state and goes much beyond the doctrine of the Boyd and Weeks cases. In the first place, while the federal rule excludes only evidence illegally obtained by federal officers, and those cooperating with them, the Texas statute makes a clean sweep and excludes evidence thus obtained by anyone.”

State v. Johnson, 939 S.W.2d 586 (Tex.Crim. App. 1996) [exclusionary statute encompasses evidence illegally obtained by private individuals]; Cobb v. State, 85 S.W.3d 258 (Tex.Crim.App. 2002)[because private person did not commit theft when he took knives from defendant’s apartment while retrieving car keys for defendant’s hospitalized girlfriend, the state exclusionary rule applicable to evidence seized by a private citizen in violation of law did not apply; the father took the knives to the police and was not acting to deprive the defendant of them].


Searches of unlabelled luggage at airport by airline employees is a private search and therefore is not within the scope of the Fourth Amendment. U.S. v. Connolly, 636 F. Supp. 1581 (D. Colo. 1986); U.S. v. Pierce, 893 F.2d 669, (5th Cir. 1990)[citing Ninth Circuit test [U.S. v. Snowadzki] the Fifth Circuit found that airport employees were not agents and their search of package was not state action where purpose of opening package was not solely to search for drugs]. However, if law enforcement participates in the search in any way, at any time before the object of the search is completely accomplished, the evidence obtained is inadmissible. Lustig v. U.S., 338 U.S. 74, 79, 69 S.Ct. 1372, 93 L.Ed. 1819 (1949).

“This Court has consistently held that searches by private individuals undertaken without ‘collusion with federal officers’ …or ‘at the behest of Government officials’ …do not implicate the Fourth Amendment inasmuch as no Governmental action is involved.”U.S. v. Andrews, 618 F.2d 646, 652 (10th Cir.), cert. denied, 449 U.S. 824 (1980).

“Although the surreptitious search of premises by a private party does not violate the Fourth Amendment, if, in conducting the search, the searcher is acting as an instrument or agent of the Government, there is a Fourth Amendment transgression. However, ‘[a] private person cannot act unilaterally as an agent or instrument of the state; there must be some degree of governmental knowledge and acquiescence’.” U.S. v. Bennett, 709 F.2d 803, 805 (2d Cir. 1983).

“But the evidence would be excludable in the present case even if the TWA employee had not acted solely to satisfy the government’s interest in viewing the contents of the package, but instead had initiated and participated in the search for reasons contemplated by the inspection clause in TWA’s tariff. The customs agents joined actively in the search. They held open the flaps of the large package; removed, opened, and inspected the contents of the small boxes which it contained; and marked the small boxes for future identification. Thus, at the very least, the search of appellant’s package was a joint operation of the customs agents and the TWA employee. When a federal agent participates in such a joint endeavor, ‘the effect is the same as though he had engaged in the undertaking as one exclusively his own’.” Corngold v. U.S., 367 F.2d 1, 5-6 (9th Cir. 1966).


 U.S. v. Snowadzki, 723 F.2d 1427, 1429 (9th Cir. 1984).

“To determine whether a private person acted as a government agent in an illegal search and seizure, this court considers ‘(1) whether the government knew of and acquiesced in the intrusive conduct, and (2) whether the party performing the search intended to assist law enforcement efforts or to further his own ends.’… The burden of establishing government involvement in a private search rests on the party objecting to the evidence.” U.S. v. Snowadzki, 723 F.2d at 1429.


U.S. v. Ford, 525 F.2d 1308, 1311 (10th Cir. 1975).

“Mrs. Ford does not question the right and duty of an air carrier to inspect any package or article submitted for shipment if it has reason to believe the package does not conform to tariff regulations. But, if government officers participated in this inspection, it became a warrantless government search, per se unreasonable unless falling within one of the carefully defined exceptions.” U.S. v. Ford, 525 F.2d at 1311.


Horton v. Goose Creek Ind. School Dist., 690 F.2d 470 (5th Cir. 1982) [school officials, employed and paid by state and supervising children [who are for the most part compelled to attend] are agents of government and constrained by Fourth Amendment]. See also Jones v. Latexo Independent school Dist., 499 F. Supp. 223, 229 (1980).

“The blanket inspection carried out by the ‘sniffer dog’ and the resulting searches of selected students and private vehicles constituted state action…. …While the doctrine of in loco parentis places the school teacher or employee in the role of a parent for some purposes, that doctrine cannot transcend constitutional rights.”

“The fact that some of the challenged actions were carried out by employees of SAI, a private corporation, does not lessen the degree of state involvement. The entire drug detection program at the Latexo School was initiated and implemented at the direction of the School Board and with the active involvement of Superintendent Acker and other school personnel. At the very least, the school was a joint participant in the program at all times, rendering the challenged conduct state action ” [citations omitted]. Jones v. Latexo Independent school Dist., 499 F. Supp. at 229.

However, it is important to remember in special settings, as in a school, children’s Fourth Amendment protections are diminished by the school’s duty to act in loco parentis. Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, 536 U.S. 822, 122 S.Ct. 2559, 153 L.Ed.2d 735 (2002)[school children who participate in extra circular activities may be drug tested pursuant to school policy without a warrant and without an initial showing that the school is experiencing a drug problem].


Even non-constitutional violations of state or federal statutes may render evidence inadmissible.

Miller v. U.S., 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) [violation of District of Columbia Law and substantially identical requirements of federal statute].

As explained above, Texas precludes the admission of evidence obtained by law enforcement or private persons in violation of any law. See Texas Code of Criminal Procedure Art. 38.23. Also a violation of the federal wiretap statute will result in exclusion of the evidence obtained thereby from any preceding for any purpose. However, a violation of the Right to Financial Privacy Act of 1978 does not result in suppression of the fruits. U.S. v. Frazin, 780 F.2d 1461 (9th Cir. 1986), cert. denied, 479 U.S. 844 (1986). Nor is the violation of ethical rules typically remedied by suppression of the evidence obtained by the violation.


The use of military personnel in violation of the Posse Comitatus Act is constitutionally unreasonable if it results in searches and seizures by military means. 18 U.S.C. 1385. Bissonette v. Haig, 776 F.2d 1384 (8th Cir. 1985). However, such violations have not resulted in exclusion of the evidence obtained. U.S. v. Wolffs, 594 F.2d 77 (5th Cir. 1979)[foreclosed the creation of an exclusionary rule, unless it was “confronted   with widespread and repeated violations of the Posse Comitatus Act”]; U.S. v. Hartley, 796 F.2d 112 (5th Cir. 1986) [citing Wolffs,

594 F.2d at 85]; U.S. v. Walden, 490 F.2d 372 (4th Cir.), cert. denied, 417 U.S. 977, 94 S.Ct. 3187, 41 L.Ed.2d

1148 (1974); State v. Danko, 219 Kan. 490, 548 P.2d 819 (1976); State v. Sanders, 303 N.C. 608, 281 S.E.2d 7

(1981), cert. denied, 454 U.S. 973, 102 S.Ct. 523, 70 L.Ed.2d 392 (1981).


The Supreme Court has held that the exclusionary rule does not apply to evidence [tape recordings] obtained in violation of I.R.S. regulations noting that “no statute was violated by the recording of respondent’s conversations.” U.S. v. Caceras, 440 U.S. 741, 99 S.Ct. 1465, 1473 & n. 21, 59 L.Ed.2d 733 (1979).


The prosecutor cannot make use of civil forfeiture procedures (civil forfeiture “seizure” warrant) to “search” for and gain evidence or to physically intrude upon and evict a tenant. U.S. v. Ladson, 774 F.2d 436 (11th Cir. 1988). See also Forfeiture Searches of Real Property, 25 CRIM. L. REV. 59 (1987).

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