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Boston Bar Journal

Applying the Exclusionary Rule in the Face of Changing Law

January 19, 2017
| Winter 2017 Vol. 61 #1

by Eric Haskell

Legal Analysis

Massachusetts courts applying the state Constitution have declined to adopt wholesale the federally created “good faith” exception to the exclusionary rule, instead crafting their own approach to exclusionary rule exceptions.  This article identifies one application of the federal “good faith” exception that is in harmony with Massachusetts’ approach: where a search complied with then-existing law when it was undertaken but, before the validity of the search is litigated, the law changes in a way that would retroactively make the search unlawful.

Although no Massachusetts court has definitively spoken to this issue, the question is likely to arise soon.   This is because, as personal-communications and information technology continues to develop, courts are issuing decisions that change what had previously been the settled understanding of search-and-seizure law.  Compare 18 U.S.C. § 2703(d) (1986) (unless barred by state law, police may obtain order for non-content records concerning electronic communications if records are “relevant and material to an ongoing criminal investigation”) with Commonwealth v. Augustine, 467 Mass. 230 (2014) (Augustine I) (police must obtain warrant supported by probable cause to obtain certain cellular tower location records even though “neither the statute, 18 U.S.C. § 2703(d), nor our cases have previously suggested that police must obtain a search warrant”); compare Commonwealth v. Phifer, 463 Mass. 790 (2012) (permitting warrantless search of arrestee’s cellular telephone) with Riley v. California, — U.S. —, 134 S. Ct. 2473 (2014) (requiring warrant to search arrestee’s cellular telephone).  Each such decision results in a class of searches that were valid when undertaken, but would be deemed invalid under the new law.

The Limits of the Exclusionary Remedy, the Federal “Good Faith” Exception, and Massachusetts’ Approach to Exclusionary Rule Exceptions

Both the federal and Massachusetts Constitutions prohibit unreasonable searches and seizures, but neither prescribes a remedy for one.  See generally U.S. Const. amend. IV; Mass. Const. pt. 1, art. XIV.  So, both federal and Massachusetts courts have developed the “exclusionary rule,” which provides generally that unlawfully obtained evidence must be suppressed from use in a criminal case.

Application of the exclusionary rule, however, comes at a cost:  “It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence . . . [a]nd its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.”  Davis v. United States, 564 U.S. 229, 237 (2011); People v. Defore, 242 N.Y. 13, 21 (1926) (Cardozo, C.J.) (famously questioning whether “[t]he criminal is to go free because the constable has blundered”).  For that reason, both federal and Massachusetts courts have insisted that the exclusionary rule be applied only if the benefits of suppression outweigh the costs.  E.g., Herring v. United States, 555 U.S. 135, 140-141 (2009); Commonwealth v. Santiago, 470 Mass. 574, 578 (2015).

Under federal law, this weighing of costs and benefits led to the development of the “good faith” exception, beginning with United States v. Leon, 468 U.S. 897 (1984).  In Leon, police executed a search warrant that had been approved by a state court judge but, in the ensuing federal prosecution, the federal court held that the warrant was not supported by probable cause.  The Supreme Court concluded that suppression was inappropriate because the officers executing the warrant had an objectively reasonable good-faith belief that the search was lawful.  The Court reasoned that the only legitimate purpose of the exclusionary rule is to deter police from committing future unlawful searches, and that “[p]enalizing the officer for the magistrate’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.”  Id. at 921.

Massachusetts courts applying the state Constitution have declined to adopt Leon. See, e.g., Commonwealth v. Valerio, 449 Mass. 562, 568-569 (2007); Commonwealth v. Pellegrini, 405 Mass. 86, 91 n.6 (1990).[1]  Moreover, in contrast with Leon, Massachusetts courts have defined the permissible purposes of the exclusionary rule more broadly than the U.S. Supreme Court has done.  The Massachusetts exclusionary rule, like its federal counterpart, rests on a “foundation” and “primary purpose” of deterring future police misconduct.  Santiago, 470 Mass. at 578; Commonwealth v. Wilkerson, 436 Mass. 137, 142 (2002).  But Massachusetts law identifies a second purpose of the Massachusetts exclusionary rule that does not appear in federal doctrine: to “preserve judicial integrity by dissociating courts from unlawful conduct.”  Commonwealth v. Nelson, 460 Mass. 564, 570-571 (2011); Commonwealth v. Gomes, 408 Mass. 43, 46 (1990) (applicability of exclusionary rule affected by extent to which violation undermines governing rule of law); Commonwealth v. Perez, 87 Mass. App. Ct. 278, 283 (2015) (same).  Accordingly, the logic and reach of the federal “good faith” exception is different from Massachusetts’ approach to exclusionary rule exceptions.

Application of the Exclusionary Rule When a Search Complied with Then-Existing Law that Is Later Overturned

In the federal system, it was only a small step to extend Leon’s logic to a search that complied with then-existing law when it was undertaken, but that would retroactively be deemed unlawful based on a subsequent change in the law (either by statutory amendment or judicial decision).  See Illinois v. Krull, 480 U.S. 340 (1987) (no suppression where warrantless administrative search was authorized by state statute, even though statute was later found unconstitutional); Davis v. United States, 564 U.S. 229 (2011) (no suppression where warrantless automobile search was authorized by Supreme Court precedent, even though that precedent was later overruled).  In those decisions, the Supreme Court framed the issue as one of “good faith” under Leon.  It also noted that the retroactivity of the new law does not mandate exclusion because retroactivity concerns whether a constitutional violation has occurred—not the remedy for any such violation.  See Davis, 564 U.S. at 243-244 (“[T]he retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question.”) (emphasis in original).

Massachusetts appellate courts have twice encountered such a situation, with equivocal results.

In Commonwealth v. Miller, 78 Mass. App. Ct. 860, 864-865 (2011), the Massachusetts Appeals Court, in dicta, explicitly endorsed an exception to the exclusionary rule where police officers comply with then-existing law.  There, a State Trooper made a traffic stop because the words “Spirit of America” on the defendant’s license plate were obscured, a circumstance the Trooper believed to be prohibited by a Registry of Motor Vehicles regulation.  The defendant sought to suppress evidence obtained in the ensuing encounter, arguing that the regulation was invalid because it exceeded the scope of the RMV’s rulemaking authority under the relevant statute and thus could not be used to justify the stop.  The Appeals Court first observed that, even if the regulation were deemed invalid, the fruits of the stop would nevertheless be admissible:  “[W]hen a police officer objectively and reasonably relies on an act of another government body (such as a legislative enactment or agency records) and the actions of that government body are later determined to be incorrect or invalid, evidence obtained by the otherwise proper actions of the police need not be suppressed.”  Id. at 864-865.  The court went on, though, to determine that the defendant had not violated the regulation, and accordingly found the traffic stop to have been unjustified.

On the other hand, in Augustine I, 467 Mass. at 254, the SJC implicitly rejected an exception where police officers comply with then-existing law.  There, the court held for the first time that a search warrant was required to obtain certain cellular tower location records, notwithstanding that a federal statute (with which the police had complied in their investigation) required a lesser showing.  The SJC remanded the case for determination whether probable cause to support a warrant would have existed, observing that suppression “should be allowed” if probable cause were lacking.  Id. at 256.[2]  The court made that observation, however, without analyzing or articulating a holding as to the applicability of the exclusionary rule, even though that issue had been briefed by the parties.

How will the Massachusetts appellate courts rule in a case that squarely presents the issue of whether the exclusionary rule applies when a search complied with then-existing law, even if that search would retroactively be deemed unlawful?  This author believes that Massachusetts’ broad view of the purposes of the exclusionary rule supports an exception where police officers comply with then-existing law.

Deterrence of future police misconduct—the exclusionary rule’s primary purpose under Massachusetts law and sole purpose under federal law—does not support suppression of evidence obtained through a search that complied with then-existing law, even if later changes would retroactively make the search unlawful.  See, e.g., Davis, 564 U.S. at 241 (“About all that exclusion would deter in this case is conscientious police work.”); Wilkerson, 436 Mass. at 142 (where officer “did nothing wrong, there is no unlawful conduct for exclusion of the evidence to deter”).  But, while a lack of deterrent value may be necessary to support an exception to the exclusionary rule, it is not sufficient under Massachusetts law.  It can be said with equal force that suppression of the fruits of a Leon-type search (i.e., one authorized by a facially valid, but actually insufficient, warrant) serves no deterrent purpose—yet the Massachusetts courts have declined to apply an exception for a Leon-type search.  So a lack of deterrent value cannot alone be determinative.

Massachusetts law, unlike federal law, recognizes a second purpose of the exclusionary rule: the interest in dissociating the courts from unlawful conduct and not undermining the governing rule of law. This second purpose supports suppression of a Leon-type search authorized by a facially valid (but actually insufficient) warrant:  No law authorizes such a search and, when the warrant is reviewed through adversarial litigation, it will be deemed contrary to governing law.

This second purpose, however, does not support suppression where a search complied with then-existing law.  As the SJC has previously observed, it does no violence to judicial integrity to admit evidence that was “properly obtained” under the law that governed the search.  See Commonwealth v. Brown, 456 Mass. 708, 715 (2010) (“judicial integrity . . . is hardly threatened when evidence properly obtained under Federal law, in a federally run investigation, is admitted as evidence in State courts,” even though that evidence was obtained in manner that would have been impermissible under Massachusetts law).  To the contrary, it may well harm the governing rule of law and diminish public confidence in the justice system to exclude such evidence based solely on the fortuitous timing of an intervening change in the law.

Thus, even though the federal rubric of “good faith” is inapposite for the reasons described earlier, this author believes that Massachusetts’ approach to the exclusionary rule independently supports an exception where police officers comply with then-existing law, regardless of subsequent changes to the law.

[1] In some cases involving arrests wrongly made on the basis of mistaken information chargeable solely to the police, Massachusetts courts have inquired into whether the search-and-seizure violation is “substantial and prejudicial” in determining whether to suppress evidence seized in the encounter.  See generally Commonwealth v. Maingrette, 86 Mass. App. Ct. 691, 697-698 (2014) and cases cited therein.  Application of this test, however, appears to be limited to such cases.  Id.

[2] On remand, a Superior Court judge found that there was no probable cause and ordered suppression of the records.  On the Commonwealth’s interlocutory appeal from that order, the SJC reversed the finding of no probable cause.  Commonwealth v. Augustine, 472 Mass. 448 (2015) (Augustine II).

Eric Haskell is an Assistant Attorney General in the Criminal Bureau of the Attorney General’s Office, and a member of the BBJ Board of Editors.  This article represents the opinions and legal conclusions of its author and not necessarily those of the Office of the Attorney General.  Opinions of the Attorney General are formal documents rendered pursuant to specific statutory authority.