The opinion
Wendell Griffen, Judge, concurring.
If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.
— Weeks v. United States, 232 U.S. 383, 393 (1914).
Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government.
— Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting).
Like the trial judge, I believe that the affidavit in support of the search warrant in this case did not have sufficient information to support a finding of probable cause. For that reason, I would prefer to hold that anything seized by the police based on the warrant cannot be received into evidence. Unfortunately, precedent from our supreme court compels us to hold that the evidence seized based on that warrant was admissible under the good-faith exception to the exclusionary rule, as outlined in United States v. Leon, 468 U.S. 897 (1984). As a judge on the Arkansas Court of Appeals, I am bound by the decisions of the Arkansas Supreme Court concerning the good-faith exception. However, by concurring in this case, I am not retreating from my previous statements of strong disfavor for the “good faith” exception to the general rule that searches made pursuant to invalid search warrants are unreasonable under the Fourth Amendment. See, e.g., Hampton v. State, 90 Ark. App. 174 , 204 S.W.3d 572 (2005) (Neal, J., dissenting); Loy v. State, 88 Ark. App. 91 , 195 S.W.3d 370 (2004) (Neal, J., dissenting); Crain v. State, 78 Ark. App. 153 , 79 S.W.3d 406 (2002) (Griffen, J., dissenting); Hoay v. State, 75 Ark. App. 103 , 55 S.W.3d 782 (2001) (Griffen, J., concurring). Now, more than ever before, I am convinced that the good-faith exception operates to judicially sanction police conduct that violates the fundamental rights protected by the Fourth Amendment and serves to eviscerate the rules regarding search and seizure.
The Fourth Amendment to the United States Constitution declares:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The Fourth Amendment absolutely prohibits all unreasonable searches and seizures. The Amendment does not define what it means to be unreasonable, but it is well-settled that a warrantless search or seizure is presumptively unreasonable unless it falls under a narrow exception to the warrant requirement. See, e.g., California v. Acevado, 500 U.S. 565 (1991) (allowing for the warrantless search of a container located within an automobile, assuming there is probable cause for the search of said container, adopted in Arkansas in Green v. State, 334 Ark. 484 , 978 S.W.2d 300 (1998)); Horton v. California, 496 U.S. 128 (1990) (allowing for the warrantless seizure of evidence of the crime in “plain view”; adopted in Arkansas in Fultz v. State, 333 Ark. 586 , 972 S.W.2d 222 (1998)); Chimel v. California, 395 U.S. 752 (1969) (allowing for the war-rantless search of a person and the area in the immediate control of a person incident to his or her lawful arrest; adopted in Arkansas in Steel v. State, 248 Ark. 159 , 450 S.W.2d 545 (1970)).
To obtain a warrant, the Fourth Amendment requires probable cause, classically defined as “facts and circumstances within their (the officers’) knowledge and of which they had reasonably trustworthy information (are) sufficient in themselves to warrant a man of reasonable caution in the belief that an offense has been or is being committed.” Brinegar v. United States, 338 U.S. 160, 175-76 (1949) (quoting Carroll v. United States, 267 U.S. 132, 162 (1925)) (internal quotations omitted). An affidavit for a search warrant must provide the magistrate with a substantial basis for determining the existence of probable cause. Illinois v. Gates, 462 U.S. 213 (1983). If that affidavit is based in whole or in part on the hearsay testimony of a confidential informant, then the affidavit must set forth facts bearing on the informant’s reliability and, as far as practicable, the means by which the affiant received the information. Id.; see also Ark. R. Crim. P. 13.1 (2004). If the affidavit lacks sufficient indicia of reliability and the affidavit cannot stand on its own without those statements, then the affidavit contains insufficient facts to make a finding of probable cause. If the affidavit fails to allege sufficient facts to support a finding of probable cause, then any warrant issued based on that affidavit is invalid. A search based on an invalid warrant is the same as a search without a warrant; thus, a search based on an invalid warrant is also unreasonable under the Fourth Amendment. This reasoning operates from the foundational principle that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search and seizures, shall not be violated.
The United States Supreme Court established an explicit rule excluding evidence resulting from an unconstitutional search. See Weeks v. United States, 232 U.S. 383 (1914). The Court recognized that allowing the admission of illegally obtained evidence would operate to nullify the Fourth Amendment. See id. The Court first mandated that the States adhere to the Fourth Amendment. Wolf v. Colorado, 338 U.S. 25 (1949). Later, the Court held the exclusionary rule applicable to the States as well. Mapp v. Ohio, 367 U.S. 643 (1961). The Mapp Court recognized that the pursuit of remedies other than the exclusion of the illegally seized evidence had proven “worthless and futile.” Id. at 652 . Even though the Fourth Amendment was unable to “cure the invasion of the defendant’s rights which he had already suffered,” Stone v. Powell, 428 U.S. 465, 540 (White, J., dissenting), the exclusionary rule was still a remedy that could operate to deter police misconduct. To that point, the law was clear: illegally seized material was inadmissible against a person whose Fourth Amendment rights were violated. The clear and deliberate aim of the exclusionary rule was to deter illegal police conduct and protect the individual rights.
It now appears that the goal of vindicating Fourth Amendment liberties has either been callously abandoned or wilfully subjugated to law enforcement aims at the cost of fundamental rights. Rather than punishing Fourth Amendment violations by excluding illegally seized items and upholding the liberties protected by the Amendment, the Court began balancing those liberties against other interests. In United States v. Calandra, 414 U.S. 338 (1974), the Court concluded that use of the exclusionary rule in the use of a grand jury proceeding would interfere with the grand jury’s duties and held that a witness could not refuse to answer a question on the ground that the question was based on evidence obtained from an illegal search. In Stone v. Powell, 428 U.S. 465 (1976), the Court held that a prisoner could not be afforded federal habeas corpus relief on the ground that illegally seized evidence was introduced at trial if the State provided an opportunity to litigate the ground at trial. There, the Court stated that enforcement of Fourth Amendment rights through the use of the exclusionary rule was minimal compared to “the substantial societal cost of application of the rule.” Id. at 495 .
The Supreme Court has refused to apply the exclusionary rule in even the most egregious of Fourth Amendment violations. In United States v. Payner, 447 U.S. 727 (1980), investigators for the Internal Revenue Service set up an operation to investigate the defendant, whom they suspected to be a narcotics trafficker. To that end, two investigators befriended a bank vice-president. One evening, while one investigator took the vice-president to dinner, the other investigator took the vice-president’s briefcase from his hotel room and copied documents that were later used to obtain other documents implicating the defendant in efforts to falsify federal tax returns. The Court noted that “[n]o court should condone the unconstitutional and possibly criminal behavior of those who planned and executed this ‘briefcase caper.’” Id. at 735 . However, the Court refused to exclude the illegally seized evidence, holding that the defendant did not have standing to challenge the search because his reasonable expectation of privacy was not violated. By the time the Court decided Leon, the general rule of excluding illegally obtained evidence stood little chance of surviving. It was clear that the question was not, how can courts and judges enforce the Fourth Amendment, but, how much latitude will courts and judges accord the police despite the Fourth Amendment.
The phrase “good-faith exception” became a legal fiction as soon as the Supreme Court established it in United States v. Leon, supra. As already stated, the original rule was that evidence obtained from an illegal search or seizure is inadmissible at trial. Mapp v. Ohio, supra; Weeks v. United States, supra. Evidence seized pursuant to an invalid search warrant was considered illegally seized. After Leon, the evidence can only be excluded if (1) the magistrate is misled by information the affiant knew was false, (2) the magistrate “wholly abandoned his judicial role in the matter condemned,” (3) the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable,” or (4) the warrant is “so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid.” Leon, 468 U.S. at 923 . The change allows law enforcement agents who lack probable cause to enter into private property and seize incriminating material after applying to a magistrate for a search warrant, even when the warrant is based on false, misleading, and unreliable affidavits.
In State v. Anderson, 284 Ark. 509 , 683 S.W.2d 897 (1985), our supreme court first recognized the significant change in Fourth Amendment jurisprudence as a result of Leon. Leon had its critics. Justice Purtle recognized that Arkansas was not obligated to follow federal law regarding the competency of evidence, quoting State v. Browning, 206 Ark. 791 , 178 S.W.2d 77 (1944), and warned that adoption of the federal precedent would operate to legalize “all searches and seizures authorized and executed in good faith” regardless of Fourth Amendment implications. Anderson, 284 Ark. at 511 , 683 S.W.2d at 898 (Purtle, J., dissenting). Justice Purtle’s concerns were indeed prophetic.
McFarland v. State, 284 Ark. 533 , 684 S.W.2d 233 (1985), is the case often cited for the Arkansas Supreme Court’s adoption of Leon and the good-faith exception. There, the magistrate who issued the search warrant testified that the search warrants were not returned to him, as mandated by Ark. R. Crim. P. 13.4. However, the supreme court, with minimal discussion, found the searches reasonable and cited Leon in support of its conclusion. After McFarland, it appeared that the good-faith exception would truly be an “exception” in Arkansas, as the supreme court refused to apply it to salvage unconstitutional searches in Stewart v. State, 289 Ark. 272 , 711 S.W.2d 787 (1986), and Herrington v. State, 287 Ark. 228 , 697 S.W.2d 899 (1985).
However, my survey of cases since 1986 detected only nine published cases where Arkansas appellate courts did not apply the good-faith exception to salvage a search conducted pursuant to an invalid search warrant. 1 See Bennett v. State, 345 Ark. 48 , 44 S.W.3d 310 (2001); Stewart v. State, supra; Bogard v. State, 88 Ark. App. 214 , 197 S.W.3d 1 (2004); Abbott v. State, 307 Ark. 278 , 819 S.W.2d 694 (1991); Smith v. State, 79 Ark. App. 79 , 84 S.W.3d 59 (2002); Jones v. State, 73 Ark. App. 432 , 44 S.W.3d 765 (2001); Henry v. State, 29 Ark. App. 5 , 775 S.W.2d 911 (1989); Lamb v. State, 23 Ark. App. 115 , 743 S.W.2d 399 (1988); Ulrich v. State, 19 Ark. App. 62 , 716 S.W.2d 111 (1986). Meanwhile, the good-faith exception has been applied to validate searches in sixteen published opinions. See George v. State, 358 Ark. 269 , 189 S.W.3d 28 (2004); Feland v. State, 355 Ark. 573 , 142 S.W.3d 631 (2004); Yancey v. State, 345 Ark. 103 , 44 S.W.3d 315 (2001); Moya v. State, 335 Ark. 193 , 981 S.W.2d 521 (1998); Sims v. State, 333 Ark. 405 , 969 S.W.2d 657 (1998); Echols v. State, 326 Ark. 917 , 936 S.W.2d 509 (1996); State v. Blevins, 304 Ark. 388 , 802 S.W.2d 465 (1991); Starr v. State, 297 Ark. 26 , 759 S.W.2d 535 (1988); Jackson v. State, 291 Ark. 98 , 722 S.W.2d 831 (1987); Hampton v. State, supra; Loy v. State, supra; Crain v. State, supra; Davidson v. State, 76 Ark. App. 464 , 68 S.W.3d 331 (2002); Sanders v. State, 76 Ark. App. 104 , 61 S.W.3d 871 (2001); Wray v. State, 69 Ark. App. 170 , 11 S.W.3d 9 (2000); Carson v. State, 21 Ark. App. 249 , 731 S.W.2d 237 (1987). This number does not include seven additional published cases where the appellate court found that the warrant was supported by an affidavit showing probable cause but stated that it would have validated the search pursuant to the good-faith exception. See Moore v. State, 297 Ark. 296 , 761 S.W.2d 894 (1988); Watson v. State, 291 Ark. 358 , 724 S.W.2d 478 (1987); Chrobak v. State, 75 Ark. App. 281 , 58 S.W.3d 387 (2001); Sossamon v. State, 31 Ark. App. 131 , 789 S.W.2d 738 (1990); Brannon v. State, 26 Ark. App. 149 , 761 S.W.2d 947 (1988); McDaniel v. State, 20 Ark. App. 201 , 726 S.W.2d 688 (1987); Vanderkamp v. State, 19 Ark. App. 361 , 721 S.W.2d 680 (1986).
When the good-faith “exception” to the general rule applies in twenty-three out of thirty-two cases, it is misleading for us to call it an exception. Just like the warrant requirement, which “[has] become so riddled with exceptions that it was basically unrecognizable,” Acevado, 500 U.S. at 582 (Scalia, J., concurring), the Fourth Amendment’s exclusionary rule, post-Leon, has been swallowed to the point where it only operates to protect the public in rare instances. 2 An exception to a rule is supposed to be “[s]omething that is excluded from a rule’s operation.” Black’s Law Dictionary 604 (8th ed. 2004). However, when the good-faith exception (1) renders powerless so much of the exclusionary rule as to make the original rule inapplicable more times than not, and (2) has narrowly-applied exceptions of its own, the “exception” has supplanted the rule.
The resulting flawed logic behind the good-faith exception has led to predictably flawed logic in Arkansas case law. Several cases cite Leon as the rule rather than the exception and apply it without conducting probable-cause analysis. See, e.g., Echols v State, supra; State v. Blevins, supra; Starr v. State, supra; Partin v. State, 22 Ark. App. 171 , 737 S.W.2d 461 (1987) (finding probable cause but analyzing the facts under Leon first); Carson v. State, supra. The principal opinion is the most recent result of that unfortunate logic. Because Leon is the exception, it should not be considered, nor even discussed, until the court concludes that the search warrant was not supported by probable cause. If probable cause is found, then there is no need to consider the good-faith exception and to apply the Leon analysis. Yet, the principal opinion begins its analysis by citing Leon principles before citing principles for determining the validity of the search warrant affidavit, the principles used to dispose of this case. Today’s decision is a clear example of how courts conflate probable-cause and Leon analyses and the consequences for the fundamental civil liberties that are implicated when they do so.
The flawed logic of Leon has also taken away from the primary purpose of the exclusionary rule: deterrence. The exclusionary rule was created to give the government an incentive to be mindful of a person’s constitutional rights. Without the good-faith exception, police officers would know that misjudgments related to search warrant affidavits would be disfavored and result in seized items being excluded as incriminatory evidence. Thus, the exclusionary rule would have its full deterrent effect and the Fourth Amendment would be vindicated. Because of the good-faith exception, however, police have little interest in protecting constitutional rights:
[I]n situations where police officers reasonably (but mistakenly) believe that their planned conduct satisfied Fourth Amendment requirements — presumably either (a) because they are acting on the basis of an apparently valid warrant, or (b) because their conduct is only later determined to be invalid as a result of a subsequent change in the law or the resolution of an unsettled question of law — then such officers will have no reason to refrain from conducting the search and the exclusionary rule will have no effect.
Leon, 468 U.S. at 952 (Brennan, J., dissenting) (emphasis added).
It appears to have escaped notice that, thanks to the Leon holding, the Fourth Amendment is the only provision in the Bill of Rights with a “good-faith” exception. Appellate courts reverse and remand when incriminating statements are given involuntarily or without the advice of counsel contrary to the Sixth Amendment; when defendants are not informed of their rights under the Fifth Amendment; when a defendant is subjected to double jeopardy; or when a court imposes a cruel or unusual punishment. These reversals occur without subjecting the governmental conduct that violates constitutional rights to good-faith analysis. If the right to be free from unreasonable searches and seizures is truly fundamental to being a free society, the police should not be judicially excused to violate that right by findings that unreasonable searches and seizures can somehow be conducted in “good faith.”
One day, I hope to read an opinion that refers to the good-faith exception to the exclusionary rule as an aberration in the law on par with the decisions in the Dred Scott v. Sanford, 60 U.S. (How.) 393 (1856) and Plessy v. Ferguson, 163 U.S. 537 (1896). The Fourth Amendment is supposed to protect citizens from unreasonable search and seizure and is not part of the Constitution for the convenience of the government. See McDonald v. United States, 335 U.S. 451 (1948) (reversing conviction on Fourth Amendment grounds where no reason, except the inconvenience of the officers and a delay in preparing papers, explained the officer’s failure to seek a search warrant); United States v. Taylor, 934 F.2d 218 (9th Cir. 1991) (noting that an individual’s interest outranks government convenience in balancing Fourth Amendment interests). Requiring valid search warrants and probable cause may make it more difficult for the government to find incriminating evidence of criminal conduct; however, “ [i]t is the loss of that evidence that is the ‘price’ our society pays for enjoying the freedom and privacy safeguarded by the Fourth Amendment.” Leon, 468 U.S. at 941 (Brennan, J., dissenting).
At present, the good-faith “exception” demonstrates that the judicial branch, whose members are sworn to interpret and apply the Constitution to uphold and protect individual liberties, has lost its vigilance for freedom and the political will to act as a check on abusive police practices. We are, sadly, in danger of becoming a society where individual liberties exist at the convenience and discretion of policing practices, thereby becoming more of a police state and less of a free society. I am obliged to follow the holdings of our state supreme court regarding the good-faith “exception.” However, I refuse to go quietly into that night.
This survey does not include eleven cases where the appellate court refused to apply the exception to an invalid nighttime search; however, our supreme court has refused to extend the exception to validate an illegal nighttime search. See Fouse v. State, 337 Ark. 13 , 989 S.W.2d 146 (1999); Richardson v. State, 314 Ark. 512 , 863 S.W2d 572 (1993); Garner v. State, 307 Ark. 353 , 820 S.W.2d 446 (1991); State v. Martinez, 306 Ark. 353 , 811 S.W.2d 319 (1991); Hall v. State, 302 Ark. 341 , 789 S.W.2d 456 (1990); Dodson v. State, 88 Ark.App. 380 , 199 S.W.3d 115 (2004); Heaslet v. State, 77 Ark. App. 333 , 74 S.W.3d 242 (2002); Langley v. State, 66 Ark. App. 311 , 990 S.W.2d 575 (1999); Zeiler v. State, 46 Ark. App. 182 , 878 S.W.2d 417 (1994); Thompson v. State, 42 Ark. App. 254 , 856 S.W.2d 319 (1993); Carpenter v. State, 36 Ark. App. 211 , 821 S.W.2d 51 (1991).
Despite the opportunity to limit Leon’s detrimental effect to the Fourth Amendment, the Arkansas Supreme Court recently expanded its scope. In Arizona v. Evans, 514 U.S. 1 (1995), the United States Supreme Court extended the good-faith exception to cover reliance on mistakes by any court employee. In Hoay v. State, 348 Ark. 80 , 71 S.W.3d 573 (2002), the Arkansas Supreme Court, in reliance on Evans, remanded a case for a determination of whether a recordkeeping mistake resulting in the arrest and search of the appellant was due to a police error or a court error, stating that if it was the result of a court error, the good-faith exception would apply. In doing so, our supreme court refused to strengthen the protection needed by Arkansas residents against unreasonable searches and seizures. See Note, Hoay v. State: A Look at the United States Supreme Court’s and Arkansas’s Misapplication of the Exclusionary Rule and Good Faith Exception, 57 Ark. L. Rev. 993 (2005).