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.