When 'Good Faith' Makes Good Sense: Applying Leon’s Exception to the Exclusionary Rule to the Government’s Reasonable Reliance on Title III Wiretap Orders

38 Pages Posted: 22 Aug 2012

See all articles by Derik T. Fettig

Derik T. Fettig

Mitchell Hamline School of Law; Hamline University School of Law; University of Minnesota - Twin Cities - School of Law

Date Written: August 21, 2012

Abstract

The good faith exception to the exclusionary rule, as set out by the Supreme Court in United States v. Leon, is well established when the government relies on a traditional search warrant. Its applicability to the government’s reliance on wiretap orders issued under Title III, the federal wiretap law, remains an open question, however. While there is a circuit split on the issue, commentators have uniformly opposed application of the good faith exception in Title III cases. By contrast, this Article makes a comprehensive case for a good faith exception for the government’s reasonable reliance on Title III wiretap orders. First, this Article briefly outlines Title III’s suppression remedy, the law related to the exclusionary rule outside the wiretap context, and the circuit split over application of the good faith exception in Title III wiretap cases. Next, this Article analyzes the current divide in the courts and considers the arguments of commentators opposed to a good faith exception in wiretap cases. It concludes that the text and legislative history of Title III support application of the good faith exception but acknowledges that outcome is not clear under the current version of the statute. Thus, this Article concludes by examining the normative and practical implications of a good faith amendment to Title III. It argues that the good faith exception is more applicable to reliance on wiretap orders than reliance on traditional search warrants, in part due to the more detailed requirements for the government to obtain authorization for electronic surveillance. It also addresses specific concerns raised by courts and commentators and explains why inclusion of a good faith amendment in Title III will not lead to increased government wiretapping or an erosion of Title III’s suppression remedy.

Keywords: good faith exception, exclusionary rule, wiretaps, electronic surveillance, Title III

JEL Classification: K14

Suggested Citation

Fettig, Derik T., When 'Good Faith' Makes Good Sense: Applying Leon’s Exception to the Exclusionary Rule to the Government’s Reasonable Reliance on Title III Wiretap Orders (August 21, 2012). Harvard Journal on Legislation, Vol. 49, p. 373, 2012, Available at SSRN: https://ssrn.com/abstract=2133531

Derik T. Fettig (Contact Author)

Mitchell Hamline School of Law ( email )

875 Summit Ave
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Hamline University School of Law ( email )

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Saint Paul, MN 55104-1237
United States
651-523-2645 (Phone)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States

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