The Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Exclusionary Rule

87 Pages Posted: 28 Aug 2006

See all articles by Andrew E. Taslitz

Andrew E. Taslitz

American University - Washington College of Law


The good faith exception to the exclusionary rule has been assailed by most commentators, defended by a few. If the exception is to continue to exist, however, as seems likely, a new understanding of it - articulated in this paper - may give it a significant role in deterring police violations of the Fourth Amendment. This new understanding, this paper argues, is rooted in an implicit logic in the Leon decision that created the exception. That logic views suppression of evidence as justified only when there is culpable police behavior - at least rising to a level akin to criminal negligence - by the police as an entity rather than by any individual officer. But there is another, analogous, though not identical, area of the law in which entity liability is ideally imposed (in practice, less may often be required, though the trend is toward the ideal)only where there is proof of similar culpability: corporate criminal liability. This paper finds an analogy to one set of theories of criminal liability - expressive theories (those focusing on the messages insulting to human worth sent by criminal conduct) - as helpful in crafting a more muscular good faith exception.

Expressive theories of corporate criminal liability find corporate mens rea in the corporation's structure and practices and permit the corporation to avoid liability by creating and effectively implementing internal mechanisms to discourage, discover, and punish criminal conduct by units or individuals within the corporate entity. A corporation failing to do so is at least criminally negligent. After part I explores the United States Supreme Court's case law on the good faith exception in some depth, Part II of this paper details these mechanisms of good corporate behavior. Part III then explains why certain police entity conduct demonstrates insulting messages similar to those of corporate criminal liability, how the structure of police departments can be examined for evidence of departmental criminal negligence, what steps to discourage and uncover constitutional violations police departments can take to be considered to be acting in good faith, and why the suppression remedy is a superior form of punishment in this context to seeking actual criminal prosecution of the police. The paper concludes with specific guidelines for determining good faith and responds to potential practical objections to the proposal, while exploring the political likelihood of its actually being adopted by courts or legislatures. Finally, even if no short-term change in the law results, the conclusion suggests that the model outlined in this paper can help in better understanding the wisdom of the exclusionary rule itself.

Keywords: Good faith, exclusionary rule, Fourth Amendment, search and seizure, corporate criminal liability, expressive function, police entity liability

Suggested Citation

Taslitz, Andrew E., The Expressive Fourth Amendment: Rethinking the Good Faith Exception to the Exclusionary Rule. Mississippi Law Journal, 2007, Available at SSRN:

Andrew E. Taslitz (Contact Author)

American University - Washington College of Law ( email )

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