Why No "Bad Faith" Exception to the Non-Exclusionary Rule?
July 11, 2006
The purpose of the exclusionary rule is to deter police misconduct. Courts recognize that exclusion, which allows the guilty to go free, is important because it ensures that the police obey the Constitution - the Supreme Law of the Land.
Yet the exclusionary rule does not apply when the police act in good faith. After all, exclusion is no deterrent to the honest-but-mistaken police officer. The good-faith exception, in most contexts, makes sense. Yet there has always been something about the exclusionary rule that has bothered me.
Shouldn't the exclusionary rule apply even in cases where there is probable cause for a search warrant, if a police officer lies in the warrant application? In other words, shouldn't there a bad-faith exception to the rule of non-exclusion that applies when probable cause is present?
Let's say a police officer lies in a search warrant affidavit because he is not sure that the truthful assertions he makes in the search warrant application will amount to probable cause. To ensure that the application is approved, the police officer spinkles in falsehoods with truth. Which is what might have done in U.S. v. Sandoval-Rodriguez (here):
On January 14, 2005, Sandoval moved to suppress evidence obtained from the search of his residence, arguing that the affidavit submitted by Agent Waymire in support of the search warrant contained knowing misstatements of fact concerning whether Pollard had witnessed Augustin retrieve drugs from Sandoval's residence. The district court noted a discrepancy between the warrant application affidavit and a subsequent report prepared by Agent Waymire concerning his interview with Pollard, but the district court determined that the affidavit supported probable cause even without the information attributed to Pollard.
The trial court denied the motion to suppress because, even without the "discrepancies," there was probable cause for the search. Yet if the exclusionary rule exists to deter police misconduct, shouldn't it apply in a case like this? Shouldn't people like Agent Waymire know that, when applying for a search warrant application, he must be totally above board or risk having any evidence obtained from the search be suppressed?
I'm curious to hear your thoughts.