The limits of the good-faith exception.

In Groh v. Ramirez, (1) the Supreme Court has narrowed the good-faith exception to the exclusionary rule in a way that will encourage police officers and magistrates to be more careful when they prepare and issue search warrants. Oddly, the Court did so in a civil ease where the issue of evidentiary exclusion was not even before it.

The case arose when Bureau of Alcohol, Tobacco, and Firearms (ATF) agents obtained a search warrant for the home of Joseph Ramirez. They were looking for various weapons, including grenades and a grenade launcher. The application for the search warrant and the sworn affidavit contained particular descriptions of the weapons being sought, but the warrant itself did not, nor did it contain any reference to the affidavit. Instead, the part of the warrant that should have specified the items to be seized was a description of the house itself. (2)

A magistrate signed the warrant, and a team of agents, led by Jeff Groh, went to the house but found no weapons. (3) The agents told Ramirez's wife what they were looking for and gave her a copy of the warrant but not of the affidavit.

The Ramirez family sued under 42 U.S.C. [section] 1983, claiming a Fourth Amendment violation. The lower court dismissed all claims against the agents except Groh. The court held that Groh was not entitled to qualified immunity because his failure to ensure that the search warrant complied with the Fourth Amendment was unreasonable. (4)

The Supreme Court agreed that this warrant violated the particularity requirements of the Fourth Amendment. (5) It also noted that the standards for immunity from a civil suit are the same as the standards fin admitting evidence under the good-faith exception to the exclusionary rule as set down in United States v. Leon. (6) Consequently, in deciding the immunity issue the Court was also able to decide the much more common issue of whether this type of mistake can be considered a good-faith one that would still allow evidence to be admitted under Leon.

Defective warrants

At first blush, this case would seem to be governed by Leon's companion case, Massachusetts v. Sheppard. (7) In that case, a homicide detective drafted a search-warrant affidavit describing the items he sought as part of a murder investigation. He couldn't find a warrant form lot a homicide related search and had to use one meant for controlled-substance searches. (8) When the detective explained the problem, the judge assured him that the court "would make the necessary changes." (9) But the judge "did not change the substantive portion of the warrant, which continued to authorize a search for controlled substances, nor did he alter the form so as to incorporate the affidavit." (10) The detective searched for, and found, evidence of the homicide.

The Sheppard court concluded that the evidence could be included because this was a mistake made in good faith, not an overt attempt to violate the Constitution, and thus qualified under the good-faith exception. "Suppressing the evidence because the judge tidied to make all the necessary clerical corrections, despite his assurances that such changes would be made, will not serve the deterrent function that the exclusionary rule was designed to achieve," the Court said. (11)

In both Sheppard and Groh, the judicial officers issued defective warrants. And in both cases the authorities had spelled out what they were searching had in the affidavit, but because of clerical errors, those descriptions or any reference to them never made it into the warrants themselves. In both cases, the law enforcement officers looked for only the items described in the affidavit, for which they had probable cause to search, but they failed to read the warrants and catch or correct the errors.

The only difference between (;rob and Sheppard is that in Groh the ATF agent, being unaware of the problem, "did not alert the magistrate to the defect in the warrant" (12) and therefore did not receive any assurance that the magistrate would fix it. In other words, although both the issuing judge and the law enforcement officer made mistakes, the officer was more at fault in Groh than in Sheppard.

This is a very thin reed by which to distinguish between the two decisions. The Court explained that the particularity requirement is important not only because it prevents general searches:

   Unless the particular-items described in the
   affidavit ale also set forth in the warrant
   itself (or at least incorporated by reference
   and the affidavit present at the search)
   there can be no written assurance that the
   magistrate actually found probable cause to
   search for, and to seize, every item mentioned
   in the affidavit. (13)

Moreover, "a particular warrant also assures the individual whose property is searched or seized of the lawful authority of the executing officer, his need to search, and the limits of his power to search." (14) But none of these reasons serves as a distinction of Sheppard, where the requirement that the warrant particularly describe the items to be seized was also violated. Rather, Groh must be read as limiting Sheppard to its own un usual facts and casting the good-faith exception into a new, narrower, mold.

This is the first case to interpret Leon and Sheppard since they were decided 20 years ago. One troublesome aspect of police cases is that they both involved police mistakes that were arguably not Fourth Amendment violations at all. (15) There was always a question of what the outer limits of the exception might be.

The Groh Court's holding that the evidence must be excluded--even though the mistake here was purely clerical and the agents in no way tried to take advantage of it--suggests that the good-faith exception can certainly be limited. Mere negligence, at least-where the warrant is "facially deficient," (16) is sufficient to void the good-faith exception, render the evidence inadmissible, and subject the executing officer to suit.

Notes

(1.) 121 S. Ct. 1284 (2004).

(2.) Id. at 1288 n.2.

(3.) Id. at 1288.

(4.) Id. at 1289.

(5.) Id. at 1295.

(6.) Id. at 1294 n.8 (citing Malley v. Briggs, 475 U.S. 335,341 (1986), citing United States v. Leon, 468 U.S. 897 (1984)).

(7.) 468 U.S. 981 (1984).

(8.) Id. at 985.

(9.) Id. at 986.

(10.) Id.

(11.) Id. at 990-91.

(12.) Groh, 124 S. Ct. 1284, 1292 n.4.

(13.) Id. at 1291.

(14.) Id. at 1292 (internal quotations omitted)

(15.) Id. at 1298 (Thomas. J., dissenting).

(16.) Id. at 1294 (citing Leon, 468 U.S. 1897).

CRAIG M. BRADLEY is the James Louis Calamaras Professor of Law at Indiana University School of Law in Bloomington. He can be reached by e-mail at bradleyc@ indiana.edu.