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Friday, June 17, 2011

More thoughts on the Supreme Court and the Davis Case

[Howard already beat me to the punch on this one, but I thought I would add in my two cents as well.]

Justice Alito may have been in the minority in the JDB case, but he wrote the majority opinion for the Court in Davis v. United States, a well watched case that had raised the question as to whether the exclusionary rule should apply in situations where the police have relied in good faith on law that was later overturned.  The search in question was a Belton search that became unconstitutional as a result of the Court's later ruling in Gant. 

As some of you may recall, frequent commenter and Volokh conspirator Orin Kerr argued the case for Davis before the Supreme Court and published a well-argued law review article on the subject too boot.  (So much for the concern that doctrinal scholarship does not appear in good journals and/or does not sufficiently impact "real life" legal debate). Orin contended, among other things, that application of a "good faith" exception to the exclusionary rule would effectively undermine the defendant's incentives to argue that the police had violated the law.  In other words, Orin's concern was that a ruling in the government's favor would ultimately paralyze the Fourth Amendment and reduce the growth of new law.  [Hope I captured your argument correctly, Orin.  Feel free to correct it in the comments.] 

I think Orin's argument makes much sense, but I also wonder if it is ultimately a "second-best" argument. That is, if you really want to "make law," preserving incentives to file suppression motions seems to be a relatively messy way of doing it.  Perhaps Orin's argument simply highlights the problem with relying on the judiciary (and not a legislature or administrative agency) to generate criminal procedure.  Then again, maybe this is a reflection of my newfound interest in regulation and governance in lieu of more adversarial, litigation-based systems.  In my own ideal world, criminal procedure would be managed by administrators and not judges.  Indeed, the Crim Pro I class would be a variant of Admin Law, and not a con law course. [No worries, I know that isn't happening any time soon ....].

In any event, Justice Alito (a former prosecutor himself) clearly was swayed by the fact that the police were not "culpable" for the violation that occurred.  That is, they had followed the law as it existed, and for that, they should not have to bear the costs of the exclusionary rule's tangible and expressive effects. Although Alito ostensibly addressed the issue through the lens of deterrence theory (ie, it makes no sense to "deter" police who adhered to good law), one could also understand the opinion as an application of retributive principles.  The police followed the law scrupulously; accordingly, they should not be "punished" via a suppression of evidence.  Notice that this intuitive approach is not completely off base: many of the earlier Warren court opinions discussed exclusion in almost moral terms (look back at the Mapp opinion and you'll see what I mean).  If exclusion takes on a meaning that the police have been "bad," then judges will be loath to apply the rule when it appears the police have behaved well. [Of course, many of us will disagree on what "behaving well" means.]

My own view is that it would have been undesirable for the Court to rule in favor of Davis (sorry Orin).  The reason is that an adverse decision would have reduced the Court's credibility with police departments, and would have further eroded the opportunity costs of disobeying the law of criminal procedure.  That is, police would have had less incentive to follow the law (since following the law would create fewer benefits if the law was subsequently overruled), and, even more importantly, police would have lost whatever respect they had for the courts ("I followed the law and you're still excluding the evidence?").  Absent such respect, police would have been less likely to comply with numerous criminal procedure rules, and the courts lack sufficient resources to monitor the police (defendants cannot possibly do an adequate job of monitoring, regardless of their incentives).  So from the lens of compliance theory (drawing on the work of psychologists such as Tom Tyler, and sociologists like John Braithwaite), it makes a lot of sense to uphold the search if it improves judicial credibility and encourages good compliance norms within police departments. 

Finally, like Giovanna did earlier, I would like to come to the aid of my co-blogger, Brian Galle, by noting how this analysis draws on much more than "doctrine".  Orin's argument, which analyzes the players' various incentives, is grounded in the incentive-based talk we now take for granted thanks to Law & Economics.  So is the Court's discussion of deterrence, although I beg to differ on some of their assumptions (seems to me that it is disingenuous to say that strict liability does not deter constitutional violations; the better conclusion would be to say that it deters violations but also likely overdeters good policing).  The question of whether the police were "culpable" arguably reflects intuitions about retribution, and there now exists a robust literature that discusses whether we should use intuition as a basis for retributive punishment.  And the question of whether a given decision will improve or undermine compliance is greatly enhanced by the fields of psychology and sociology.  I wouldn't dream of passing myself off as an expert in any of those fields.  Nevertheless, as individuals with particularized knowledge of legal institutions, we profs can play a role in applying those disciplines to the study of "law," which in turn enriches the way we comprehend and approach more practice-oriented questions.  By all means, we should develop and support doctrinal scholarship; but we should also embrace the theoretical, multi-disciplinary inquiries (at least the well grounded ones) that our colleagues have produced. 

Posted by Miriam Baer on June 17, 2011 at 05:08 PM | Permalink


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Of all the possible arguments for the government in Davis, the argument about police respect for the law strikes me as the very weakest. The defense in Davis was arguing to maintain the status quo; in contrast, the Government was arguing for a departure from the status quo. So if the defense rule in Davis would lead to disrespect for the law, as you say, then logically it must be that this rule (which has been in effect since 1987) has already caused that disrespect. But I'm guessing you can't point to any evidence that the rule has actually led to any disrespect for the law, and I think the reason why is easy to understand: Supreme Court overrulings of precedents in favor of criminal defendants are so uncommon, and there are already so many exceptions to the exclusionary rule that eliminate the likelihood of relief even if the Supreme Court changes the law, that no police officer would ever really think about the possibility of losing a case based on Supreme Court overturning the law after the search occurred.

To make it concrete, imagine you're back at the U.S. Attorney's Office talking to a New York City cop. The cop tells you that he has stopped frisking suspects who he thinks are carrying guns. You ask why, and he says the following: Miriam, I'm deeply worried that the Supreme Court will overturn Terry v. Ohio sometime in the next few years. If it does, any frisk I do may be deemed illegal under the new frisk test the Supreme Court announces, whatever it is. And if my frisk is illegal under the new test, and the inevitable discovery doctrine, fruit of the poisonous tree, standing, and other doctrines don't apply, and if the conviction isn't yet final, and if the defendant has preserved the issue so the plain error doctrine doesn't apply, then it's theoretically possible that any gun I discover in a frisk would be suppressed. I'll be honest: I am so anxious about the possibility that Terry will be overturned and my future cases jeopardized that I have stopped frisking people. And that has made me so anxious that I no longer respect the Supreme Court, and that lack of respect has let me to decided to violate current Fourth Amendment rules, too. You would think this cop had a screw loose, I think.

Posted by: Orin Kerr | Jun 20, 2011 12:18:41 AM

Hi Orin,
No, I certainly was not imagining the conversation you posed, although that would be rather entertaining. Here is what I was thinking: let's say that most cops see the 4th Amendment law in binary terms. That is, "if I follow the law, the evidence comes in. If I violate the law, then the evidence is excluded." Now this is admittedly crude, but we all utilize heuristics in our daily lives, and this seems to me a very sensible way for officers to understand criminal procedure. From that perspective, your argument on behalf of Davis, even if it seemed like a perfectly reasonable maintenance of the status quo, would seem like an unexpected slap in the face to officers, who would likely conclude, "wow, even I follow the law, the evidence still doesn't come in!"

Now I don't think the above line of thinking leads to over deterrence (except maybe in some large police department where some nervous nelly department counsel decides that a 5-4 majority is too inherently stable to authorize a given type of police action). No, what I am worried about is that there will be less adherence overall by police officers with the law. That is, the next time a police officer has to decide whether to search, he might just say to himself, "ugh, whatever, they are always changing the law anyway.". That fear is based on the fairly robust research that Tom Tyler and others have done with regard to compliance in other venues.

Now, you are absolutely correct that I have no specific empirical evidence to back up my theory (word to our readers: feel free to call me if you are an empirical type and this interests you), but none of the Supreme Court's modern 4th Amendment jurisprudence appears to be based on what you and I would deem sufficient empirical proof. Instead, this seems to be an area in which the Court makes predictions based loosely on microeconomic theory (ie, what will players X and Y do if we set costs at A or B?). And this gets back to my original point in the post that we might have a better world if this were all under the umbrella of some regulatory agency rather than decided piecemeal by a Court prone to casual predictions of how people will react.

Posted by: Miriam baer | Jun 20, 2011 9:46:42 AM


At oral argument, the Deputy Solicitor General argued that the Supreme Court had not changed the law in favor of criminal defendants since 1969. Given that, your idea that any actual police officer would think, "ugh, whatever, they are always changing the law [in favor of criminal defendants] anyway" strikes me as utterly absurd. According to the government's own position, this has never happened since before most of today's cops were born, even without a good faith exception; I don't know how a cop could think the Supreme Court is "always" doing something that was last done when Earl Warren was Chief Justice.

Further, the traditional thinking has been that the availability of the exclusionary remedy is actually the key to responsible decisionmaking that stabilizes the law and ensures respect for it. If the Supreme Court can change the law without letting anyone out of jail, the thinking went, then the Supreme Court will often change the law. If the Court has to free people by changing the law, then it will be reluctant to change the law. That was why Justice Scalia dismissed prospective decisionmaking as a "handmaiden of judicial activism": The remedy is what keeps the Court in line. That was the traditional thinking, at least.

As for your idea about giving this to a regulatory agency, I think we already have a body of government that is supposed to come up with rules that the executive branch should follow: the U.S. Congress. I think there are a lot of good reasons for Congress, not the courts, to make criminal procedure rules. But I don't think it makes sense to give this to an executive branch agency: Giving the executive the power to decide the powers of the Executive reminds me a bit too much of the old Onion article about Pres. Bush, "Bush Grants Self Permission to Grant Power to Self," http://www.theonion.com/articles/bush-grants-self-permission-to-grant-more-power-to,2012/

Posted by: Orin Kerr | Jun 21, 2011 12:33:06 AM

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