David J. Twombly, The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones, 74 Ohio St. L.J. 807 (2013). (J.D. expected '14, Ohio State).
A key quote (and, one I agree with):
Setting aside the policy question of whether the exclusionary rule ought to stand or fall, lower courts should not take it upon themselves to extend the good-faith exception to cases of police negligence....When the right case comes along, the Supreme Court can clarify whether everyday police negligence really deserves the benefit of the good-faith exception.
...the analysis suggested for the good-faith exception asks a different question: whether the law has clearly established the constitutionality of a particular police practice. Another way to ask the question is whether the law has clearly established a citizen’s lack of a constitutional right under certain circumstances. If the law puts the reasonable officer on notice that her action might be unconstitutional, she should refrain. Reasonable uncertainty in this analysis will not provide the officer with good-faith protection, and suppression
of illegally obtained evidence will result. This standard keeps the good-faith exception tethered to an officer’s compliance with clear legal authority, but it does so in a way that allows law enforcement to adopt new investigative techniques without unreasonable delay.
With respect to nonbinding precedent, this makes the suggested analysis a version of the broad-view approach described above, though it is consistent with the fundamental concerns of many narrow-view courts. In keeping with qualified immunity doctrine, the suggested analysis would allow courts to consider at least some nonbinding precedent as well as binding precedents not directly on point.
The abstract (from SSRN) is below:
The federal exclusionary rule generally prohibits the admission at trial of evidence procured by means of an unconstitutional search. But the rule admits of many exceptions, including an officer’s good-faith reliance on what reasonably appeared at the time of the search to be binding legal authority. The Supreme Court has applied the good-faith exception when police rely on warrants that turn out to be invalid because of magistrates’ errors or database inaccuracies, statutes that turn out to be unconstitutional, and, in the 2011 case of Davis v. United States, to “binding appellate precedent” later overturned. The Court has not determined, however, whether officers may act in good-faith reliance on nonbinding legal precedent. This question has recently arisen in a number of cases affected by the retroactive application of the rule announced in United States v. Jones that installing a GPS device on a vehicle constitutes a Fourth Amendment search.
This Note analyzes the emerging disagreement among district courts over the reach of the good-faith exception. Courts have largely gone in one of two directions. Some read Davis narrowly as extending the good-faith exception only to an officer’s reliance on precedent binding in the jurisdiction at the time of the search. Others read Davis as authorizing a broad good-faith exception that would allow reliance on nonbinding precedent. The disagreement reflects great uncertainty in the lower courts as to the scope of the good-faith exception. Is the exception confined to the handful of situations the Supreme Court has recognized, or does it authorize lower courts to analyze the culpability of officers on a case-by-case basis and extend the exception to new facts? This Note argues that courts should adopt a modified standard from the Court’s qualified immunity cases, focusing on whether the constitutionality of an officer’s action has been clearly established. Such an analysis respects the fundamental rationale of the Court’s good-faith cases while retaining a robust role for the exclusionary rule.
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