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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
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
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
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
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
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
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
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
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
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
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-
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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