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Friday, March 01, 2013

Good Faith and the Exclusionary Rule

The notion of the exclusionary rule is that evidence gathered that was available via a breach of law, in particular, constitutional law regarding search & seizure, is considered "Fruit of the Poisonous Tree".  Even though it is evidence that could reasonably lead to conviction of a serious crime, if it was gathered after constitutional rights were violated, then it must be excluded, as though it didn't exist.  

Where good faith is provided as an exception to the exclusionary rule would be if the officer had a reasonable and honest belief that a crime was being committed.  For example, if an officer goes to the wrong address, where they were told there was a domestic disturbance, and then hears the TV and believes it to be a citizen at the address in imminent danger, they would be justified at breaking down the door and entering the home.  If they then found cocaine and a sawed-off shotgun in the living room, that evidence could be seized and used as evidence in the trial, even though it was found without a warrant.  The officer acted in good faith and made a mistake by thinking the violence playing on television was an actual violent crime.

A great example of this is the Kyllo v. United States case where police used an infrared camera to observe a high amount of heat radiating from the roof and side of Mr. Kyllo's garage, more than his house, and used that as the basis for a search warrant.  In that case, not only were 100+ marijuana plants seized, but illegal firearms as well.  It is of particular interest because it argued whether or not the radiation of heat from the home was on the inside, or the outside of the home.  If on the inside, then it's within the boundary of the home, and unobservable.  However, if the heat was judged to be on the outside of the walls, then it's being broadcast by Mr. Kyllo, with a similar legal effect to paint on the outside of the home.  The case was tossed out because the judge ruled that the use of infrared cameras obtained from the military were not using "normal tools" to conduct the search - a very scary difference.  Had the police obtained infrared cameras from Radio Shack instead of borrowing them from the military, then the case would have likely been upheld.  This is a great case of the exclusionary rule, and where good faith could not be used, because the heat was not observable through normal means.


The Good Faith Exception to the exclusionary rule is where, if the arresting officer was operating under good faith that a crime had occurred (e.g. the infamous "I smell marijuana" claim), then the search would be permissible, even if the officer was in error.  This is very tenuous thread on which to base justice, because it permits fabrication of evidence.  I would hope that all police would act honorably and justly, but unethical cops have sometimes fabricated evidence due to the police sub-culture or feelings of revenge, prejudice (presumed guilty), bias or anger.

The standard of care for Good Faith is "What would a reasonable person do?"  If the basis of the search warrant is faulty but can be shown to be warranted as a reasonable mistake, then the evidence is not excluded, even though not acquired through otherwise legal means.


 I attended a session in the Law Track of the RSA Conference today, entitled "How the Constitution Protects your Cell Phone and Laptop Encryption Keys".  Exclusion and good faith were part of the discussion, as well as the difference between access and testimony (key vs. encryption key), and the differentiation between reasonable suspicion and probable cause, among many other concepts.  

One thing that was pointed out is the Kyllo vs. US hinged on posse comitatus, the principle of which is that the military cannot operate against civilians in the United States.  Since posse comitatus was struck down 12/31/2011, there now would be no restriction in the use of military-grade hardware for the purpose of spying on Americans, with no need for reasonable suspicion or probable cause.  Case law has not established that change as of yet, but the increasing suppression of the 4th Amendment by the courts would likely find that to be the case, and that our sense of "reasonable expectation of privacy" has taken a pretty frightening turn.

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