“Clearly Established” Circuit Law in Good-Faith Suppression Cases

This week, I’ve been posting on the evolving connection between circuit precedent and “clearly established law” in both qualified–immunity and AEDPA cases. To round out the discussion, this post discusses related issues posed by a third doctrine: the good-faith exception to the exclusionary rule. Appropriately enough, the circuit courts themselves have recently had interesting things to say about circuit precedent in this area. The upshot is a remarkable convergence between qualified immunity and a rapidly growing exception to the exclusionary rule.

By way of background, the “good-faith exception” to modern exclusionary doctrine is predicated on the need to deter wrongful police conduct. If police engage in bad conduct, the argument goes, then the police should generally be punished by suppressing any discovered evidence. But sometimes the police engage in blameless conduct that nonetheless violates the Fourth Amendment. The “good-faith” exception then dictates that suppression is unwarranted. In Davis v. United States (2011), the Supreme Court held that the good-faith exception applies when police follow “binding appellate precedent” issued by circuit courts. This issue arose in Davis because circuit precedent had said that a particular kind of search was constitutional and the police acted accordingly–only to have the Supreme Court later hold the opposite. Davis effectively said that the police hadn’t done anything wrong and so shouldn’t suffer deterrence in the form of suppression.

But what exactly qualifies as “binding appellate precedent” for good-faith purposes? Davis itself held that an appellate precedent triggers the good-faith exception when it “specifically authorizes a particular police practice” that turns out to be unconstitutional. In fleshing out that standard, circuit courts have framed their inquiry in terms familiar to qualified-immunity jurisprudence.

Take United States v. Sparks, a thoughtful 2013 decision in the First Circuit. In his opinion for the court, Judge Stahl discussed how the good-faith exception should apply in a post-United States v. Jones GPS-tracking case. Here’s a key passage:

Before Davis was decided[,] a number of state and federal courts (including the Eleventh Circuit, as affirmed in Davis itself) had already adopted a Davis-type reliance-on-precedent exception to the exclusionary rule. They unanimously held—and we agree—that the exception is available only where the police rely on precedent that is “clear and well-settled.” [cites]. Indeed, the circuits that recognized the exception pre-Davis stressed that their “precedent on a given point must be unequivocal” for suppression to be withheld. [cites].

Sparks then concluded that this “clear and well-settled” standard—which sounds quite similar to the “clearly established law” standard that controls in qualified-immunity cases—was consistent with the reasons that the Supreme Court had created the good-faith exception to the exclusionary rule. As Sparks put it:

[T]his emphasis on the clear application of the precedent to the case at hand is consistent with Davis’s focus on deterrence; where judicial precedent does not clearly authorize a particular practice, suppression has deterrent value because it creates an “incentive to err on the side of constitutional behavior.”

In other words, officers are supposed to conform to the governing law of their circuit or the Supreme Court. But when those sources of precedential guidance provide no clear answer, there’s something important to be gained by encouraging officers to “err on the side of constitutional behavior.”

The logic here could easily be exported to qualified-immunity cases, and perhaps even to habeas. That is, officers might be more likely to err on the side of constitutional behavior when they know that they are risking civil liability or a habeas release order. Therefore, civil liability and/or habeas relief should be on the table unless the government has acted in accord with clearly established law. When officers stray beyond what their home circuits have clearly established as lawful conduct, they should be encouraged to think twice.

Yet that line of reasoning is not the governing principle in qualified-immunity and AEDPA cases. Instead, qualified immunity protects officers from civil liability unless they’ve violated “clearly established law.” Last week, the Supreme Court reserved whether and when circuit law meets that standard. Meanwhile, AEDPA Section 2254(d)(1) conditions relief on a violation of clearly established Supreme Court precedent. This week, the Court reinforced that principle, too.

So the prevailing view of the good-faith exception is in a sense the flip of the prevailing rule for qualified immunity and habeas. Whereas compliance with clear law is necessary to protect government interests in the suppression cases, defiance of clear law is necessary to overcome government interests in the qualified immunity and habeas cases. Put another way, violations of unclear and unsettled law will still trigger the deterrent of suppression, but won’t trigger the deterrent of civil liability or habeas relief.

One way to compare these legal regimes is to ask: “What happens when police violate binding home circuit precedent?” Under the prevailing view, such officers:

• Haven’t violated “clearly established law” for purposes of AEDPA.
• Might have violated “clearly established law” for purposes of qualified immunity.
• Have violated “clear and well-settled law” for purposes of the good-faith exception.

Whether this spectrum makes sense depends on what each doctrine is and should be doing. Needless to say, each of these points is open to criticism. What’s more, all three points are, to varying degrees, disputed and in flux, as evident from recent Supreme Court activity in all three areas.

There’s also something to be said for considering these doctrinal areas (and perhaps others as well) in tandem. Here are a few examples of potential interactions between them. First, a strong deterrent arising from any one of these three mechanisms might reduce the need for the other two. Second, the various mechanisms might be better suited for different types of governmental conduct. So perhaps each doctrine should be narrowed and adapted to play to its own distinctive strengths. Finally, courts might see an advantage in borrowing insights and standards across these doctrines, thereby rendering them uniform over time.

It’s especially interesting to focus on qualified immunity and the good-faith exception, since both doctrines are associated with deterrence and frequently arise in connection with police action. Last year, a fine student note (“Toward A General Good Faith Exception”) argued that the standards in these two areas should basically be rendered interchangeable, so that more or less the same police conduct would both forfeit qualified immunity and authorize suppression. This approach, which effectively proposes that the good-faith exception expand to match qualified immunity, trades on the benefits of doctrinal uniformity. The general good-faith approach also has intuitive appeal: if police conduct is bad enough to trigger one type of deterrence, then it seems bad enough to trigger another. And if not, then not.

But even if we view this issue purely in terms of policy and cost/benefit analysis (which we shouldn’t), there are many plausible reasons for distinguishing qualified immunity and the good-faith exception. For example, the social costs of each type of remedy are very different in kind and perhaps also in magnitude. And, of course, it’s possible to think that the two standards should be made uniform not by expanding the good-faith exception, but rather by shrinking the scope of qualified immunity. In Davis, for instance, Justices Breyer and Sotomayor expressed concern that the good-faith doctrine might be headed toward a qualified-immunity-style standard. Besides worrying about leaving police without adequate deterrence, these Justices also suggested that the future elucidation of Fourth Amendment law might be stunted as a result. Similar concerns arise in the qualified-immunity context.

Notably, the general good-faith approach recently took a major step forward in the en banc Third Circuit case United States v. Katzin, decided just last month. (Orin Kerr discussed  it here.) The question, much as in Sparks, was whether suppression was warranted where the police had attached a GPS tracking device before United States v. Jones. Without Third Circuit precedent on point, Katzin held that two Supreme Court cases from the early 1980s provided all the “binding appellate precedent” necessary to trigger the good-faith exception. In doing so, Katzin held that binding appellate precedent can yield good-faith reliance even if the precedent doesn’t “specifically authorize” the police conduct. It’s enough, Katzin held, for the police to have acted “well within the rationale” of binding case law.

Self-consciously going even further, Katzin alternatively held that Davis was but one application of a broader good-faith principle. The Third Circuit accordingly deployed “the Supreme Court’s more general good faith test,” finding that the officers had “a good faith belief in the lawfulness of their conduct.” This inquiry looks a lot like the current inquiry for qualified immunity. Most relevant for the present purpose, Katzin considered, among other things, out-of-circuit precedent at the time of the officers’ conduct, finding it either supportive of the police or distinguishable. In a five-judge dissent, Judge Greenaway responded: “[L]aw enforcement made a deliberate decision implicating constitutional principles on the basis of a 3-1 circuit split, absent any specific authorization for their conduct. What if the split had been 2-2 or 1-3?”

After Katzin, it’s only a matter of time before the Supreme Court decides to rule on whether Davis sets the outer limits of the good-faith exception. Indeed, we might get some more insight into these issues as soon as this term, in Heien v. North Carolina.