The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
An important theme in Fourth Amendment law these days is the rights/remedy gap. Over the past few years, courts have interpreted the Fourth Amendment broadly in some interesting ways. But when they have, a broad "good-faith exception" kicks in and takes away any remedy for the violation that results from the court's broad interpretation. The result makes a lot of high-profile Fourth Amendment litigation mostly prospective. It's often clear at the outset that the defendant will lose eventually. The litigation is mostly about whether the defendant will lose on the right or lose on the remedy, with the difference being the prospective application of the rule.
To be clear, I'm no fan of this development. I have argued against it in articles (here and here) and in briefs and argument in Davis v. United States. But the Supreme Court is going in a different direction, so that's all just academic.
That brings me to a new case on the rights/remedy gap, Rodriguez v. United States, handed down Thursday by the Eighth Circuit. Rodriguez is on remand from April's Supreme Court decision of the same name, which held that the government violated the Fourth Amendment by extending a traffic stop for seven or eight minutes while waiting for drug-sniffing dogs. According to the Supreme Court in Rodriguez, a traffic stop must end "when tasks tied to the traffic infraction are—or reasonably should have been—completed." The Fourth Amendment does not permit an extension to wait for the dogs, so Rodriguez's Fourth Amendment rights were violated.
On remand, the Eighth Circuit says that Rodriguez loses anyway. Eighth Circuit law "provided that a brief delay to employ a drug dog did not constitute an unconstitutional seizure, as long as the traffic stop was not unreasonably prolonged." Because the stop here was not unreasonably prolonged, the Davis good-faith exception applies, and there is no remedy for the violation. In response to Rodriguez's point that he wouldn't have litigated the case to the Supreme Court if he had known he would have lost anyway on the remedy, the Eighth Circuit offers the Supreme Court's answer from Davis: "[A] good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions" because "defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue." In other words, Rodriguez's incentive doesn't matter. If he hadn't litigated the issue, someone else might have.
First, I wonder if circuit courts will adjust to Davis eventually by preemptively addressing the good-faith standard the first time—and if so, how that will change the prospect of Supreme Court review. When the Eighth Circuit had Rodriguez the first time, it could have added the Davis good-faith exception as a second reason to deny the motion to suppress. Time will tell whether the Supreme Court is more reluctant to grant cert when the lower court opinion also holds that the good-faith exception applies. Maybe the justices will just grant as they normally would and do their best to ignore the good-faith exception to try to settle the prospective rule. After all, maybe the lower court was on the wrong side of the split and also wrong about how the good-faith exception applied. It's theoretically possible. Or perhaps the justices will be less likely to grant cert to resolve splits when the the good-faith exception likely applies.
Alternatively, when the application of the good-faith exception is obvious, perhaps the issue won't come up because the cert petition won't be filed in the first place. Or maybe the petitions will be filed anyway, either because the application of the good-faith exception is misunderstood (more likely in the short run than in the long run) or for broader ideological reasons (at least in some cases). It's hard to know, given that Davis is pretty new. Perhaps we will get some insight based on how the Court handles the pending and upcoming cert petitions on cell-site surveillance, which raise good-faith issues under the similar Illinois v. Krull standard.
Second, I think there's more going in the application of the good-faith standard in Rodriguez than the Eighth Circuit lets on. As I have explained before, Davis is unclear about how close a precedent needs to be to the facts of a particular case for reliance on the precedent to be "reasonable." When the precedent adopted a bright-line rule, this normally won't be an issue. But what if the precedent was a general standard?
The Eighth Circuit had adopted a standard allowing stops to go on as long as they did not "unreasonably prolong" the stop. But the pre-Rodriguez precedents had mostly been in the two- to four-minute range, with none seeming to go as far as the seven- to eight-minute range of Rodriguez. When determining if an officer "reasonably" relied on a standard of "reasonable" prolonging, is the test whether the court concludes that the application was plausible, whether it was correct or whether it was covered by the actual facts of the earlier applications of that standard? The Eighth Circuit doesn't address this, perhaps just in keeping with its circuit tradition of fairly minimalist opinions. But it's an interesting issue.
My third thought is a general point about the expanded good-faith exception. The broad readings of the Fourth Amendment and the expansion of the good-faith exception are surely linked. The broad good-faith exception frees judges to rule prospectively. They can interpret the Fourth Amendment broadly because they know no criminal will get out of jail. This came up in the oral argument in Davis:
JUSTICE KENNEDY: In one sense if we're talking about costs, the [broad good faith exception] is defendant friendly, in that this Court may be more willing to impose stricter rules under the Fourth Amendment, if it knows that the good faith rule will protect against the costs of overturning the conviction.
MR. KERR: That's exactly right, Justice Kennedy. And, in fact, that exact argument was one of the reasons Justice Harlan concluded that the exclusionary rule should be available in the first case and on direct review. The Court needs to be aware of the costs when it overturns precedent. It should not depart from precedent lightly.
And I think Gant is a good example. Justice Alito's dissent nicely points out the very real costs of the shift from the Belton rule to the Gant rule, and if there were no costs in a regime of pure prospectivity, the Court would feel much more free to overturn its precedents because no one would actually be affected by the rule of any cases that are either on direct review or in the initial case or of those individuals whose convictions are already final.
JUSTICE KENNEDY: But that could work to the benefit of defendants as a class, not the particular defendant?
MR. KERR: That works to the benefit of defendants as a class, absolutely. In fact, going back to the Linkletter era, that was perceived as one of the benefits of Linkletter, that it freed the Court to overturn precedent. But I think that is an improper consideration. It is necessary for Fourth Amendment decisionmaking for the Court to accurately weigh the costs and benefits of any shift in the rules.
To the extent the justices used to feel pressured into reading the Fourth Amendment narrowly to avoid setting bad guys free, the expanded good-faith exception largely takes that pressure away. The Court now has more freedom to adopt pro-defendant Fourth Amendment rules because it's unlikely criminals will go free no matter how the justices rule.
Hat tip: Howard Bashman.