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by Gary L. Gerszewski, J.D.
[Special Agent Gerszewski is a legal instructor at the FBI Academy.]
In the early morning hours, on a lonely stretch of highway, a police officer accesses a computerized database to verify information provided by the driver of a vehicle stopped for speeding. Based on the results of this inquiry, the officer arrests the driver because of an outstanding warrant.
Three months earlier, however, a records clerk for the officer's department mistakenly failed to remove from the computer a previous entry that indicated an arrest warrant had been issued for the driver. Will evidence seized by the officer pursuant to the arrest based on inaccurate computerized information be covered by the "good faith" exception to the exclusionary rule?1
During its most recent term, the Supreme Court expanded the scope of the "good faith" exception to the exclusionary rule as it applies to court personnel responsible for maintaining information in a computerized database.2 Though the decision did not create a "good faith" exception for mistakes made by police personnel with similar responsibilities, language contained in the Court's opinion might be viewed as a possible invitation to one.
This article suggests that the Court's possible extension of a "good faith" exception for police clerical personnel depends on the ability of law enforcement to establish an environment worthy of such an exception. It examines the basis of the "good faith" exception in general3 and then its application specifically to data entry personnel.
ARIZONA V. EVANS
In January 1991, an officer of the Phoenix Police Department observed Isaac Evans driving the wrong direction on a one-way street. The officer stopped Evans and asked him to produce his driver's license. Evans responded by advising the officer that his license had been suspended.
The officer conducted a computerized records search using the computer terminal in his patrol car, which confirmed the suspension. The inquiry also indicated that there was an outstanding misdemeanor arrest warrant for Evans.
Based on this computer-generated information, the officer took Evans into custody and discovered a bag of marijuana while conducting a search incident to the arrest. Subsequently, the court informed the police that the warrant had been quashed 17 days earlier.
Evans moved to suppress the marijuana, arguing that the arrest and subsequent search were illegal because the warrant had been quashed. Evans also argued it would be inappropriate for the court to apply the "good faith" exception in this case because it was police error that invalidated the arrest.
At the suppression hearing, testimony revealed that a rare clerical oversight by a court clerk resulted in the erroneous computer information. Following lower court disagreement as to whether the evidence should be suppressed, the U.S. Supreme Court agreed to consider the case to determine "whether the exclusionary rule requires suppression of evidence seized incident to an arrest resulting from an inaccurate computer record, regardless of whether police personnel or court personnel were responsible for the record's continued presence in the police computer."4 However, before discussing the Supreme Court's decision in Evans, the rationale for the exclusionary rule merits a brief review.
THE EXCLUSIONARY RULE
The Court's previous ruling in United States v. Leon5 held that the purpose of the exclusionary rule would not be served by excluding evidence seized pursuant to a search warrant issued by a magistrate that subsequently was determined by a reviewing court to be unsupported by probable cause. Leon examined the very purpose of the exclusionary rule and balanced its rationale against "[t]he substantial social costs exacted by the exclusionary rule...that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains."6 The decision evidenced the Court's view that an "unbending application of the exclusionary sanction to enforce the ideals of governmental rectitude would impede unacceptably the truth-finding functions of the judge and jury."7
The Court in Leon reaffirmed that the exclusionary rule is a judicially created remedy designed to deter police misconduct.8 Moreover, because the exclusionary rule is a creation of the Court and not specifically mandated by the Constitution, its application in a particular case is an issue separate from whether a constitutional right has been violated by law enforcement.
Accordingly, Leon concludes that "[t]he deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent conduct which has deprived the defendant of some right,"9 and that it was not expected, "and should not be applied, to deter objectively reasonable law enforcement activity."10 Because the officers' actions in obtaining the search warrant were completely reasonable under the fourth amendment, the Court concluded that there was no inappropriate police conduct that could be deterred. The majority surmised that the only likely deterrent effect of excluding evidence under the circumstances would be to make officers less willing to do their duty in the future.11
"Good Faith" Exception
The Court in Leon identified three specific reasons why application of the exclusionary rule against the conduct of judges and magistrates would be inappropriate. First, the exclusionary rule was created to deter police misconduct rather than to sanction the errors of judicial officers. Second, there was no evidence to suggest that judges and magistrates are inclined to ignore or subvert the protections guaranteed by the fourth amendment. Third, and most important, there was no basis for believing that the exclusion of evidence would have a significant deterrent effect on issuing judges or magistrates.12 In assessing the third factor, the Court noted that judges and magistrates are not part of the "law enforcement team,"13 and as such, do not have any stake in the outcome of any particular criminal investigation. Because of this, the threat of exclusion of evidence is unlikely to have any significant deterrent effect upon them.
Application of Leon to Clerical Personnel
The Court in Evans rejected a "reflexive application of the exclusionary rule,"14 which would automatically require exclusion in cases of a constitutional violation. Even though the arrest of Evans was based on erroneous computer information, the Court ruled that the evidence seized pursuant to his arrest was admissible. The Court found support in Leon for "a categorical exception to the exclusionary rule for clerical errors of court employees"15 because:
1) The exclusionary rule was designed to deter police misconduct, not mistakes by employees of the court
2) No evidence was offered to suggest that court employees are inclined to ignore the fourth amendment or that "lawlessness among these actors requires the application of the extreme sanction of exclusion,"16 and
3) Court employees are not likely to be affected significantly by the exclusion of evidence in any particular case because they are not members of the law enforcement team.
In its decision, the Court expressly declined to determine whether evidence should be suppressed if police personnel are responsible for the error,17 even though that decision was not necessary to determine the issue addressed in Evans. This action by the Court may be viewed as a step toward extending the "good faith" exception created in Evans to law enforcement personnel. Whether the Court in future decisions creates such an exception may depend on several important considerations.
Computers' Threat to Personal Liberty
Evans involves much more than simply a new application of the "good faith" exception. It is a case that illustrates the dangers presented by computer technology, which will weigh heavily in any future consideration of a "good faith" exception for police clerical personnel.
While the Court's decision in Evans was based on a 7-2 majority, five Justices expressed concern about the threat to personal liberty posed by computer technology. Their opinions reflect an awareness of the potential problems relating to the automation of law enforcement records. Because these five Justices form a majority of the Court, the potential impact of their views cannot be ignored.
The two dissenting Justices expressed their belief that the Court's decision ignored "the reality that computer technology has changed the nature of threats to citizen's privacy over the past half century."18 They noted that the FBI's National Crime Information Center (NCIC) alone contains over 23 million records that are accessible to "approximately 71,000 federal, state and local agencies."19 They concluded that given the magnitude of the potential risk associated with the computerization of arrest warrants, the exclusionary rule was the only mechanism available to curtail the type of error that led to the arrest of Evans.
Three of the Justices who voted with the majority in Evans acknowledged the validity of the concerns expressed by the dissent but nonetheless sided with the majority because the decision was specifically limited to a court employee's departure from established procedures, which is not the kind of error to which the exclusionary rule should apply.20 These Justices cautioned, however, that they would not apply the "good faith" exception in situations where officers relied "on a recordkeeping system, their own or some other agency's, that has no mechanism to ensure its accuracy over time and that routinely leads to false arrests."21 Noting that such unjustified reliance would not constitute objectively reasonable conduct, the Justices commented:
The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.22
Two of those same three Justices joined in a separate concurring opinion to express an even stronger view about the potential problems of computerization. They opined that while the exclusionary rule historically had applied only to the misconduct of police agencies, the expanded reliance on computerized records by every arm of government might someday present them with the question of whether that rule should be extended to government as a whole and not merely to law enforcement.
The purpose of this expanded application would be to maintain what they described as an "acceptable minimum limit"23 on the number of false arrests that could result from increased reliance on computer records. While concern about the dangers of computer technology will be an important issue to the Court in considering the expansion, it is not the only problematic issue for law enforcement.
Leon and Its Application to Police Personnel
Because Leon addresses the actions of non-police personnel, the factors the Court developed were tailored specifically to assess conduct that can be categorically described as non-law enforcement in nature. This framework is not particularly well-suited to the creation of a categorical "good faith" exception for police clerical personnel.
For instance, the first two factors of the "good faith" exception--the historical purpose of the exclusionary rule and the inclination of a group to ignore or subvert the fourth amendment--serve to identify distinctions between the conduct of law enforcement and non-law enforcement personnel. They do not recognize distinctions between, for instance, street patrol officers and data entry clerks who work for the department. However, the third most important factor identified in Leon may enable law enforcement to establish an environment that will satisfy the Court that a "good faith" exception should be made for police clerical personnel, not as a categorical matter but on a case-by-case basis.
Systemic Deterrent Effect
The crucial question the Court must address in considering a "good faith" exception for police is, "Would the likelihood of exclusion have a significant deterrent effect on police personnel responsible for a computer error?" Deterrence is, after all, the ultimate purpose of the exclusionary rule.
In that regard, a police agency might contend that a single clerical employee is so far removed from the law enforcement function that the rule would have no impact on them. However, it is likely that clerical personnel would be presumptively considered by the Court to be part of "the law enforcement team," and as such, would be subject to the "systemic"24 deterrent effect of the exclusionary rule as it relates to future conduct.25 With this consideration in mind, the agency might wish to focus its attention on an aspect of the exclusionary rule that, under the Leon analysis, seems to have been discounted, that is, the effect that the exclusionary rule already has had on the policies and practices of law enforcement.
CREATING A "WORTHY" ENVIRONMENT
Justice Blackmun noted the following in Leon:
...the scope of the exclusionary rule is subject to change in light of changing judicial understanding about the effects of the rule outside the confines of the courtroom...it is incumbent on the Nation's law enforcement officers, who must continue to observe the Fourth Amendment in the wake of today's decision, to recognize the double-edged nature of that principle.26
Although these comments were intended to serve as a warning to law enforcement, they emphasize Justice Blackmun's view that the purpose of the rule is not to redress individual past wrongs but to affect the future conduct of law enforcement as a community. Considering this view, if a police agency previously had taken reasonable steps to ensure the accuracy of its computerized records based on the threat of exclusion, would the exclusion of evidence be justified if erroneous information was maintained in a particular database as a result of an understandable human error?27
It could be argued that there would be no misconduct to be deterred in the future and that the mere threat of exclusion had served the purpose of the exclusionary rule by altering the conduct of the agency before the fact. Under such circumstances, the Court might recognize that the department's actions in attempting to safeguard its computerized information had created a "worthy" environment for the application of a "good faith" exception. With this in mind, law enforcement must be prepared to demonstrate that the exclusionary rule has retained its vitality by creating an incentive for police managers to examine the manner in which law enforcement collects, maintains, and uses computerized data.
In order to create a worthy environment for an expansion of the "good faith" exception for errors by police personnel in the use of computerized data, law enforcement managers need to follow three important guidelines. They should: 1) Establish appropriate safeguards to ensure the accuracy of the database; 2) continually monitor and assess the accuracy of records obtained from other agencies; and 3) enact policies to verify independently information received as a result of an inquiry by an officer.
1 This article addresses the exclusionary rule. It does not consider various issues related to the civil liability of the officer or the department.
2 Arizona v. Evans, 115 S.Ct. 1185 (1995).
3 For an earlier discussion of the good faith exception to the exclusionary rule, see Robert A. Fiatal, "The Judicial Preference for the Search Warrant," FBI Law Enforcement Bulletin, July 1986, pp. 21- 30.
4 Arizona v. Evans, supra at 1189.
5 468 U.S. 897 (1984).
6 Id. at 907.
9 Id. at 919.
11 Id. at 920.
12 These same factors were applied in Illinois v. Krull, 480 U.S. 340 (1987). The Court ruled that the purpose of the exclusionary rule would not be served by excluding evidence that officers had seized pursuant to an Illinois statute, which was later declared to be unconstitutional.
13 United States v. Leon, supra at 917.
14 Arizona v. Evans, supra at 1192.
15 Id. at 1194.
16 Id. at 1193.
17 Id. at 1194, n.5.
18 Id. at 1197 (Stevens, J., dissenting).
19 Id. at 1199 (Ginsburg, J., dissenting).
20 Id. at 1194 (O'Connor, J., concurring).
22 Id. at 1195 (O'Connor, J., concurring).
23 Id. at 1195 (Souter, J., concurring).
24 United States v. Leon, supra at 917.
25 Information known to clerical personnel could well be imputed to the officer on the street as part of the "collective knowledge/collective ignorance" rule. Ott v. State, 600 A.2d 111 (Md. 1992) (citing United States v. Hensley, 469 U.S. 221 (1985)).
26 United States v. Leon, supra at 928 (Blackman, J. Concurring).
27 For example, some courts have recognized that there may be some legitimate basis for a delay in removing warrant information from a computerized database. These courts have noted that it is the burden of the government to establish the reason for the delay. State v. Moore, 614 A.2d 1360 (N.J.Super.A.D. 1992); Ott v. State, supra.
NOTE: Law enforcement officers of other than Federal jurisdiction who
are interested in this article should consult their legal advisor. Some
police procedures ruled permissible under Federal constitutional law are
of questionable legality under State law or are not permitted at all.
from the FBI's 11/95 monthly magazine
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