Extending the Good Faith Exception to the Fourth Amendment's Exlcusionary Rule to Warrantless Seizures that Serve as the Basis for the Search Warrant

Posted: 7 May 2010

See all articles by Thomas K. Clancy

Thomas K. Clancy

University of Mississippi School of Law

Date Written: 1995

Abstract

This Article proposes an extension of the good faith exception to the Fourth Amendment's exclusionary rule. This extension would cover situations where the police, notwithstanding their efforts to conform to the law, illegally seize and detain persons or their effects, such as luggage, thereafter fully disclose the facts surrounding the seizure and detention to a magistrate in an application for a search warrant, and then recover evidence as a result of the warrant's execution.

Part I of this Article discusses the Supreme Court's current view of the purpose of the Fourth Amendment's exclusionary rule and reviews the good faith exception to that rule. The Supreme Court has not had occasion to decide whether to extend the good faith exception to warrantless seizures that serve as the basis for a subsequent application for a search warrant. The lower court cases that have addressed the issue, however, have reached conflicting results. This Article then examines the application of the good faith exception to those prior warrantless seizures. Part II distinguishes United States v. Leon, the case in which the Supreme Court announced the good faith exception, from the circumstances that are the subject of this Article. Part III explores the policies supporting the preference for a warrant. That Part concludes that extension of good faith to the situations detailed above is justified, premised on two important considerations, which are detailed in Parts III and IV: First, there must be a recognition that a magistrate may deny the warrant if illegal activity is disclosed in the application. Second, the affidavit must accurately and fully detail the circumstances that gave rise to the illegal seizure. These Parts argue that such a rule would bring about two socially valuable consequences. First, recourse to warrants would be encouraged, resulting in early intervention and review by the judiciary of police actions, thereby placing the judiciary between the citizen and the police. Second, the need for the ultimate sanction of exclusion, with its high costs to society, would be reduced. Part V illustrates the application of the proposed extension of the good faith exception, and Part VI contains some concluding remarks.

Keywords: fourth amendment, search and seizure, good faith, criminal procedure, constitutional law

Suggested Citation

Clancy, Thomas K., Extending the Good Faith Exception to the Fourth Amendment's Exlcusionary Rule to Warrantless Seizures that Serve as the Basis for the Search Warrant (1995). Available at SSRN: https://ssrn.com/abstract=1602058

Thomas K. Clancy (Contact Author)

University of Mississippi School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States
662-832-5244 (Phone)

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