Amdt4.1 Fourth Amendment: Historical Background
Approval of warrantless searches pursuant to arrest first appeared in dicta in several cases. Weeks v. United States , 232 U.S. 383, 392 (1914); Carroll v. United States, 267 U.S. 132, 158 (1925); Agnello v. United States, 269 U.S. 20, 30 (1925). Whether or not there is to be a rule or a principle generally preferring or requiring searches pursuant to warrant to warrantless searches, however, has ramifications far beyond the issue of searches pursuant to arrest. United States v. United States District Court, 407 U.S. 297, 320 (1972).
How cited: in Brooks v. State, 2015
A warrantless search conducted without probable cause violates the Fourth Amendment. Belote v. State, 411 Md. 104, 112 (2009). Typically, the exclusionary rule is "the appropriate remedy for a violation of the Fourth Amendment." Myers v. State, 395 Md. 261, 278 (2006); see also Weeks v. United States, 232 U.S. 383 (1914) (establishing the exclusionary rule); Mapp v. Ohio, 367 U.S. 643 (1961) (applying the exclusionary rule to the states). But, application of the exclusionary rule is not per se: it "has always been our last resort, not our first impulse." Hudson v. Michigan, 547 U.S. 586, 591 (2006); see also Gates, 462 U.S. at 223.
Due Process Incorporation?
like the specific requirements and restrictions placed by the Bill of Rights (Amendments I to VIII) upon the administration of criminal justice by federal authority, the Fourteenth Amendment did not subject criminal justice in the States to specific limitations. The notion that the "due process of law" guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after impressive consideration. See, e. g., Hurtado v. California, 110 U. S. 516; Twining v. New Jersey, 211 U. S. 78; Brown v. Mississippi, 297 U. S. 278; Palko v. Connecticut, 302 U. S. 319. Only the other day the Court reaffirmed this rejection after thorough reexamination of the scope and function of the Due Process Clause of the Fourteenth Amendment. Adamson v. California, 332 U. S. 46. The issue is closed.
For purposes of ascertaining the restrictions which the Due Process Clause imposed upon the States in the enforcement of their criminal law, we adhere to the views expressed in Palko v. Connecticut, supra, 302 U. S. 319. That decision speaks to us with the great weight of the authority, particularly in matters of civil liberty, of a court that included Mr. Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice Cardozo, to name only the dead. In rejecting the suggestion that the Due Process Clause incorporated the original Bill of Rights, Mr. Justice Cardozo reaffirmed on behalf of that 27*27 Court a different but deeper and more pervasive conception of the Due Process Clause. This Clause exacts from the States for the lowliest and the most outcast all that is "implicit in the concept of ordered liberty." 302 U. S. at 325.
Rutledge Dissent
I also reject any intimation that Congress could validly enact legislation permitting the introduction in federal courts of evidence seized in violation of the Fourth Amendment. I had thought that issue settled by this Court's invalidation on dual grounds, in Boyd v. United States, 116 U. S. 616, of a federal statute which in effect required the production of evidence thought probative by Government counsel—the Court there holding the statute to be "obnoxious to the prohibition of the Fourth Amendment of the Constitution, as well as of the Fifth." Id. at 632. See Adams v. New York, 192 U. S. 585, 597, 598. The view that the Fourth Amendment itself forbids the introduction of evidence illegally obtained in federal prosecutions is one of long standing and firmly established. See Olmstead v. United States, 277 U. S. 438, 462. It is too late in my judgment to question it now. We apply it today in Lustig v. United States, post, p. 74.
*659 There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." People v. Defore, 242 N. Y., at 21, 150 N. E., at 587. In some cases this will undoubtedly be the result.[9] But, as was said in Elkins, "there is another consideration—the imperative of judicial integrity." 364 U. S., at 222. The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence. As Mr. Justice Brandeis, dissenting, said in Olmstead v. United States, 277 U. S. 438, 485 (1928): "Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. . . . If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy." Nor can it lightly be assumed that, as a practical matter, adoption of the exclusionary rule fetters law enforcement. Only last year this Court expressly considered that contention and found that "pragmatic evidence of a sort" to the contrary was not wanting. Elkins v. United States, supra, at 218. The Court noted that
"The federal courts themselves have operated under the exclusionary rule of Weeks for almost half a century; 660*660 yet it has not been suggested either that the Federal Bureau of Investigation[10] has thereby been rendered ineffective, or that the administration of criminal justice in the federal courts has thereby been disrupted. Moreover, the experience of the states is impressive. . . . The movement towards the rule of exclusion has been halting but seemingly inexorable." Id., at 218-219.
The ignoble shortcut to conviction left open to the State tends to destroy the entire system of constitutional restraints on which the liberties of the people rest.[11] Having once recognized that the right to privacy embodied in the Fourth Amendment is enforceable against the States, and that the right to be secure against rude invasions of privacy by state officers is, therefore, constitutional in origin, we can no longer permit that right to remain an empty promise. Because it is enforceable in the same manner and to like effect as other basic rights secured by the Due Process Clause, we can no longer permit it to be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment. Our decision, founded on reason and truth, gives to the individual no more than that which the Constitution guarantees him, to the police officer no less than that to which honest law enforcement is entitled, and, to the courts, that judicial integrity so necessary in the true administration of justice.
The judgment of the Supreme Court of Ohio is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
n Weeks v. United States, 232 U. S. 383 (1914), we adopted the federal exclusionary rule for evidence that was unlawfully seized from a home without a warrant in violation of the Fourth Amendment. We began applying the same rule to the States, through the Fourteenth Amendment, in Mapp v. Ohio, 367 U. S. 643 (1961).
591*591 Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs," United States v. Leon, 468 U. S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautio[us] against expanding" it, Colorado v. Connelly, 479 U. S. 157, 166 (1986), and "have repeatedly emphasized that the rule's `costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application," Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 364-365 (1998). We have rejected "[i]ndiscriminate application" of the rule, Leon, supra, at 908, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served," United States v. Calandra, 414 U. S. 338, 348 (1974)—that is, "where its deterrence benefits outweigh its `substantial social costs,'" Scott, supra, at 363 (quoting Leon, supra, at 907).
We did not always speak so guardedly. Expansive dicta in Mapp, for example, suggested wide scope for the exclusionary rule. See, e. g., 367 U. S., at 655 ("[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court"). Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568-569 (1971), was to the same effect. But we have long since rejected that approach. As explained in Arizona v. Evans, 514 U. S. 1, 13 (1995): "In Whiteley, the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation. Subsequent case law has rejected this reflexive application of the exclusionary rule." (Citation omitted.) We had said as much in Leon, a decade earlier, when we explained that "[w]hether the exclusionary sanction is appropriately imposed in a particular case . . . is `an issue separate from the question whether the Fourth Amendment rights of the party seeking 592*592 to invoke the rule were violated by police conduct.'" 468 U. S., at 906 (quoting Illinois v. Gates, 462 U. S. 213, 223 (1983)).
Breyer Dissent
To argue, as the majority does, that new remedies, such as 42 U. S. C. § 1983 actions or better trained police, make suppression unnecessary is to argue that Wolf, not Mapp, is now the law. (The Court recently rejected a similar argument in Dickerson v. United States, 530 U. S. 428, 441-442 (2000).) To argue that there may be few civil suits because violations may produce nothing "more than nominal injury" is to confirm, not to deny, the inability of civil suits to deter violations. See ante, at 598. And to argue without evidence (and despite myriad reported cases of violations, no reported case of civil damages, and Michigan's concession of their nonexistence) that civil suits may provide deterrence because claims may "have been settled" is, perhaps, to search in desperation for an argument. See ibid. Rather, the majority, as it candidly admits, has simply "assumed" that, "[a]s far as [it] know[s], civil liability is an effective deterrent," ibid., a support-free assumption that Mapp and subsequent cases make clear does not embody the Court's normal approach to difficult questions of Fourth Amendment law…
The Court has declined to apply the exclusionary rule only:
(1) where there is a specific reason to believe that application of the rule would "not result in appreciable deterrence," United States v. Janis, 428 U. S. 433, 454 (1976); see, e. g., United States v. Leon, 468 U. S. 897, 919-920 612*612 (1984) (exception where searching officer executes defective search warrant in "good faith"); Arizona v. Evans, 514 U. S. 1, 14 (1995) (exception for clerical errors by court employees); Walder v. United States, 347 U. S. 62 (1954) (exception for impeachment purposes), or
(2) where admissibility in proceedings other than criminal trials was at issue, see, e. g., Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 364 (1998) (exception for parole revocation proceedings); INS v. Lopez-Mendoza, 468 U. S. 1032, 1050 (1984) (plurality opinion) (exception for deportation proceedings); Janis, supra, at 458 (exception for civil tax proceedings); United States v. Calandra, 414 U. S. 338, 348-350 (1974) (exception for grand jury proceedings); Stone v. Powell, 428 U. S. 465, 493-494 (1976) (exception for federal habeas proceedings).
Neither of these two exceptions applies here. The second does not apply because this case is an ordinary criminal trial. The first does not apply because (1) officers who violate the rule are not acting "as a reasonable officer would and should act in similar circumstances," Leon, supra, at 920, (2) this case does not involve government employees other than police, Evans, supra, and (3), most importantly, the key rationale for any exception, "lack of deterrence," is missing, see Pennsylvania Bd. of Probation, supra, at 364 (noting that the rationale for not applying the rule in noncriminal cases has been that the deterrence achieved by having the rule apply in those contexts is "minimal" because "application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches"); Michigan v. Tucker, 417 U. S. 433, 447 (1974) (noting that deterrence rationale would not be served if rule applied to police officers acting in good faith, as the "deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct"). That critical latter rationale, which underlies every exception, 613*613 does not apply here, as there is no reason to think that, in the case of knock-and-announce violations by the police, "the exclusion of evidence at trial would not sufficiently deter future errors," Evans, supra, at 14, or "`further the ends of the exclusionary rule in any appreciable way,'" Leon, supra, at 919-920.
Justice Sonia Sotomayor dissented in a 2017 officer involved shooting case, where she quoted Sheehan: [b]ut we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these cases. The erroneous grant of summary judgment in qualified-immunity cases imposes no less harm on 'society as a whole,’ than does the erroneous denial of summary judgment in such cases.
To Justice Sotomayor's point, a 2015 study examined 844 federal appellate qualified immunity decisions from 2009-2012 (encompassing 1460 distinct claims) and found that approximately 78% of the time courts held that there was a violation of constitutional rights, but that the violations were not clearly established. A 2017 study examined five district courts' qualified immunity motions and found that requests by defendants to dismiss the case on the basis of qualified immunity were: 31.6% of the time denied (allowing the case to proceed); 29.3% granted (dismissing the case) on the basis of qualified immunity; 22.0% granted on other grounds, granted qualified immunity in the alternative, or offered little or no rationale; and 17.0% went unresolved, most likely because they were settled. In other words, these district courts firmly rejected qualified immunity less than a third of the time.
Where a plaintiff brings suit is also critically important and the political and judicial philosophies in a state or a circuit likely will determine how quickly qualified immunity is rejected or granted. Plaintiffs who filed Section 1983 claims in the Fifth Circuit Court of Appeals (encompassing Mississippi, Louisiana, and Texas) fared the worst of any circuit because qualified immunity was granted 64% of the time. Plaintiffs fared the best in the Ninth Circuit Court of Appeals where qualified immunity was granted 42% of the time. When comparing states, California granted qualified immunity only 34% of the time while Texas granted qualified immunity 59% of the time. The disparity is so great that an armed plaintiff in California is more likely to overcome qualified immunity than an unarmed plaintiff in Texas. Paul Hughes, a prominent civil rights attorney, commented on the differences in how qualified immunity is granted, stating “It shouldn't turn on the happenstance of geography as to whether or not they (plaintiffs) have a remedy.”
Considering the above statistics, the barriers plaintiffs face in Section 1983 or Bivens Actions are very difficult to break down and often are completely dependent on where the plaintiff brings suit. Part One (I) will discuss modern and relevant cases that continue to portray the consequences of the poor language behind qualified immunity. This section will also discuss how so many cases, where the issue on appeal concerns the question of qualified immunity, ultimately reach the appellate court level, because of a concerning decision in the federal district court. Part Two (II) will discuss how all of the consequences of a poorly written qualified immunity doctrine has detrimentally affected communities of color. Part Three (III) will discuss the policy recommendations and the movement for abolishment of the qualified immunity doctrine, which has been headed by the CATO Institute and the Institute for Justice, with CATO dedicating an entire project to qualified immunity's abolishment in their Criminal Justice divisions.
PDF] missouri.edu , Living a Lie: The Cost of Qualified Immunity
PDF] escholarship.org, After Qualified Immunity
PDF] unm.edu, Is it Time to Revisit Qualified Immunity?
Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the causal link between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.1 In a series of decisions issued over several decades, the Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the Court upheld the admission of an unsigned statement made by a defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own recognizance, and, only then, voluntarily returned several days later to make the unsigned statement.2 Similarly, in its 1984 decision in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because the evidence was seized the next day pursuant to a valid search warrant that had been issued based on information obtained by law enforcement before the illegal entry.3
More recently, in its 2016 decision in Utah v. Strieff, the Court rejected a challenge to the admission of certain evidence obtained as the result of an unlawful stop on the grounds that the discovery of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.4 As a threshold matter, the Court rejected the state court’s view that the attenuation exception applies only in cases involving an independent act of a defendant’s 'free will.'5 Instead, the Court relied on three factors it had set forth in a Fifth Amendment case, Brown v. Illinois,6 to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct: (1) the temporal proximity between the two acts; (2) the presences of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.7 On the whole, the Strieff Court, reiterating that suppression of evidence should be the courts’ last resort, not our first impulse,8 concluded that the circumstances of the case weighed in favor of the admission of the challenged evidence. While the closeness in time between the initial stop and the search was seen by the Court as favoring suppression,9 the presence of intervening circumstances in the form of a valid warrant for the defendant’s arrest strongly favored the state,10 and in the Court’s view, there was no indication that this unlawful stop was part of any systematic or recurrent police misconduct.11 In particular, the Court, relying on the second factor, emphasized that the discovery of a warrant broke the causal chain between the unlawful stop and the discovery of the challenged evidence.12 As such, the Strieff Court appeared to establish a rule that the existence of a valid warrant, predat[ing the] investigation and entirely unconnected with the stop, generally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.13
We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. We do not suggest, however, that exclusion is always inappropriate in cases where an officer has obtained a warrant and abided by its terms. "[S]earches pursuant to a warrant will rarely require any deep inquiry into reasonableness," Illinois v. Gates, 462 U. S., at 267 (WHITE, J., concurring in judgment), for "a warrant issued by a magistrate normally suffices to establish" that a law enforcement officer has "acted in good faith in conducting the search." United States v. Ross, 456 U. S. 798, 823, n. 32 (1982). Nevertheless, the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues must be objectively reasonable, cf. Harlow v. Fitzgerald, 457 U. S. 800, 815-819 (1982),[23] and it is clear that in some circumstances 923*923 the officer[24] will have no reasonable grounds for believing that the warrant was properly issued.
Suppression therefore remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth. Franks v. Delaware, 438 U. S. 154 (1978). The exception we recognize today will also not apply in cases where the issuing magistrate wholly abandoned his judicial role in the manner condemned in Lo-Ji Sales, Inc. v. New York, 442 U. S. 319 (1979); in such circumstances, no reasonably well trained officer should rely on the warrant. Nor would an officer manifest objective good faith in relying on a warrant based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Brown v. Illinois, 422 U. S., at 610-611 (POWELL, J., concurring in part); see Illinois v. Gates, supra, at 263-264 (WHITE, J., concurring in judgment). Finally, depending on the circumstances of the particular case, a warrant may be 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. Cf. Massachusetts v. Sheppard, post, at 988-991.
n sum, the police conduct in this case clearly was objectively reasonable and largely error-free. An error of constitutional dimensions may have been committed with respect to the issuance of the warrant, but it was the judge, not the police officers, who made the critical mistake. "[T]he exclusionary rule was adopted to deter unlawful searches by police, not to punish the errors of magistrates and judges." Illinois v. Gates, 462 U. S. 213, 263 (1983) (WHITE, J., concurring in judgment).[7] Suppressing evidence because the 991*991 judge failed 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. Accordingly, federal law does not require the exclusion of the disputed evidence in this case. The judgment of the Supreme Judicial Court is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
In addition to relying on the reasoning of the Court of Appeals, the Creightons advance three alternative grounds for affirmance. All of these take the same form, i. e., that even if Anderson is entitled to qualified immunity under the usual principles of qualified immunity law we have just described, an exception should be made to those principles in the circumstances of this case. We note at the outset the heavy burden this argument must sustain to be successful. We have emphasized that the doctrine of qualified immunity reflects a balance that has been struck "across the board," Harlow, supra, at 821 (BRENNAN, J., concurring). See also Malley, 475 U. S., at 340 (" `For executive officers in general,. . . qualified immunity represents the norm' " (quoting Harlow, supra, at 807)).[4] Although we have in narrow circumstances provided officials with an absolute immunity, see, 643*643 e. g., Nixon v. Fitzgerald, 457 U. S. 731 (1982), we have been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials' duties or the precise character of the particular rights alleged to have been violated. An immunity that has as many variants as there are modes of official action and types of rights would not give conscientious officials that assurance of protection that it is the object of the doctrine to provide. With that observation in mind, we turn to the particular arguments advanced by the Creightons.
First, and most broadly, the Creightons argue that it is inappropriate to give officials alleged to have violated the Fourth Amendment — and thus necessarily to have unreasonably searched or seized — the protection of a qualified immunity intended only to protect reasonable official action. It is not possible, that is, to say that one "reasonably" acted unreasonably. The short answer to this argument is that it is foreclosed by the fact that we have previously extended qualified immunity to officials who were alleged to have violated the Fourth Amendment. See Malley, supra (police officers alleged to have caused an unconstitutional arrest); Mitchell v. Forsyth, 472 U. S. 511 (1985) (officials alleged to have conducted warrantless wiretaps). Even if that were not so, however, we would still find the argument unpersuasive. Its surface appeal is attributable to the circumstance that the Fourth Amendment's guarantees have been expressed in terms of "unreasonable" searches and seizures. Had an equally serviceable term, such as "undue" searches and seizures been employed, what might be termed the "reasonably unreasonable" argument against application of Harlow to the Fourth Amendment would not be available — just as it would be available against application of Harlow to the Fifth Amendment if the term "reasonable process of law" had been employed there. The fact is that, regardless of the terminology used, the precise content of most of the Constitution's 644*644 civil-liberties guarantees rests upon an assessment of what accommodation between governmental need and individual freedom is reasonable, so that the Creightons' objection, if it has any substance, applies to the application of Harlow generally. We have frequently observed, and our many cases on the point amply demonstrate, the difficulty of determining whether particular searches or seizures comport with the Fourth Amendment. See, e. g., Malley, supra, at 341. Law enforcement officers whose judgments in making these difficult determinations are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law.
For the same reasons, we also reject the Creightons' narrower suggestion that we overrule Mitchell, supra (extending qualified immunity to officials who conducted warrantless wiretaps), by holding that qualified immunity may never be extended to officials who conduct unlawful warrantless searches.
Finally, we reject the Creightons' narrowest and most procrustean proposal: that no immunity should be provided to police officers who conduct unlawful warrantless searches of innocent third parties' homes in search of fugitives. They rest this proposal on the assertion that officers conducting such searches were strictly liable at English common law if the fugitive was not present. See, e. g., Entick v. Carrington, 19 How. St. Tr. 1029, 95 Eng. Rep. 807 (K. B. 1765). Although it is true that we have observed that our determinations as to the scope of official immunity are made in the light of the "common-law tradition,"[5] Malley, supra, at 342, 645*645 we have never suggested that the precise contours of official immunity can and should be slavishly derived from the often arcane rules of the common law. That notion is plainly contradicted by Harlow, where the Court completely reformulated qualified immunity along principles not at all embodied in the common law, replacing the inquiry into subjective malice so frequently required at common law with an objective inquiry into the legal reasonableness of the official action. See Harlow, 457 U. S., at 815-820. As we noted before, Harlow clearly expressed the understanding that the general principle of qualified immunity it established would be applied "across the board."
The approach suggested by the Creightons would introduce into qualified immunity analysis a complexity rivaling that which we found sufficiently daunting to deter us from tailoring the doctrine to the nature of officials' duties or of the rights allegedly violated. See supra, at 642-643. Just in the field of unlawful arrests, for example, a cursory examination of the Restatement (Second) of Torts (1965) suggests that special exceptions from the general rule of qualified immunity would have to be made for arrests pursuant to a warrant but outside the jurisdiction of the issuing authority, §§ 122, 129(a), arrests after the warrant had lapsed, §§ 122, 130(a), and arrests without a warrant, § 121. Both the complexity and the unsuitability of this approach are betrayed by the fact that the Creightons' proposal itself does not actually apply the musty rule that is purportedly its justification but instead suggests an exception to qualified immunity for all fugitive searches of third parties' dwellings, and not merely (as the English rule appears to have provided) for all unsuccessful fugitive searches of third parties' dwellings. Moreover, from the sources cited by the Creightons it appears to have been a corollary of the English rule that where the search was successful, no civil action would lie, whether or not probable cause for the search existed. That also is (quite prudently 646*646 but quite illogically) not urged upon us in the Creightons' selective use of the common law.
The general rule of qualified immunity is intended to provide government officials with the ability "reasonably [to] anticipate when their conduct may give rise to liability for damages." Davis, 468 U. S., at 195. Where that rule is applicable, officials can know that they will not be held personally liable as long as their actions are reasonable in light of current American law. That security would be utterly defeated if officials were unable to determine whether they were protected by the rule without entangling themselves in the vagaries of the English and American common law. We are unwilling to Balkanize the rule of qualified immunity by carving exceptions at the level of detail the Creightons propose. We therefore decline to make an exception to the general rule of qualified immunity for cases involving allegedly unlawful warrantless searches of innocent third parties' homes in search of fugitive
Because an officer can reasonably act unreasonably, there are three types of errors after Leon:
(1) reasonable mistakes that are not a violation of the Fourth Amendment at all, such as a mistake of fact;
(2) unreasonable mistakes that in fact violate the Fourth Amendment, but at the time of the conduct reasonable minds could have differed about whether the officer was acting lawfully; and
(3) unreasonable mistakes where the officer violated clearly established law, so that no reasonable argument could be made that the action was lawful.
The Leon court stated that when a magistrate abandons his neutral role "in the manner condemned in Lo-Ji Sales, Inc. v. New York," then the good faith exception should not apply. Leon, 468 U.S. at 923, 104 S.Ct. 3405. In Lo-Ji Sales, an investigator for the New York State Police sought a warrant to search an adult bookstore and presented a Town Justice with two allegedly obscene films along with an affidavit indicating that "similar" films were present in the bookstore. 442 U.S. at 321, 99 S.Ct. 2319. After viewing the two films, the Town Justice issued a warrant authorizing a search of the bookstore for items determined to be possessed in violation of New York law. Id. at 321-22, 99 S.Ct. 2319. The warrant did not list those items; instead, the Town Justice 470*470 accompanied law enforcement officers on a search of the bookstore, examined the materials therein to assess their obscenity, then authorized the seizure of the items deemed obscene. Id. at 326-27, 99 S.Ct. 2319. The Supreme Court stated that the Town Justice "was not acting as a judicial officer but as an adjunct law enforcement officer." Id. at 327, 99 S.Ct. 2319. The Court disapproved of the Town Justice's reliance on the "conclusory" allegations that "similar" items were present at the store and criticized the issuance of an open-ended warrant. Following Leon's express reference to the unacceptability of the conduct of the Town Justice in Lo-Ji Sales, this Court has held that the good faith exception cannot apply "`where the issuing magistrate wholly abandoned his judicial role' as a detached and neutral decisionmaker." United States v. Andrews, 577 F.3d 231, 236 (4th Cir.2009) (quoting Leon, 468 U.S. at 923, 104 S.Ct. 3405)…
In sum, nothing in this opinion should be construed as requiring officers to second-guess the legal conclusions drawn by magistrates presented with sufficient evidence to reach them. However, where a reasonable officer would know that a probable cause determination could not be rendered without information conspicuously absent from his application for a warrant, reliance on the resulting warrant is not objectively reasonable. Stated differently, a magistrate's signature cannot render reasonable an objectively unreasonable failure to support a warrant application with evidence necessary to demonstrate probable cause. Here, the information before the magistrate failed to demonstrate whether the pictures allegedly possessed by Doyle were in fact illegal to possess and failed to indicate when Doyle allegedly possessed them. Upholding this warrant would ratify police reliance on questionable indicia of probable cause to justify a search of a residence for child pornography without any regard to when the child pornography supposedly existed in the residence. Because such reliance would be manifestly unreasonable, we cannot endorse such action. Accordingly, the holding of the district court is
"The doctrine of qualified immunity protects government officials `from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). Qualified immunity "gives government officials breathing room to make reasonable but mistaken judgments," and "protects `all but the plainly incompetent or those who knowingly violate the law.'" Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 2085, 179 L.Ed.2d 1149 (2011) 1245*1245 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)). "[W]hether an official protected by qualified immunity may be held personally liable for an allegedly unlawful official action generally turns on the `objective legal reasonableness' of the action, assessed in light of the legal rules that were `clearly established' at the time it was taken." Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987) (citation omitted).
Where the alleged Fourth Amendment violation involves a search or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a warrant is the clearest indication that the officers acted in an objectively reasonable manner or, as we have sometimes put it, in "objective good faith." United States v. Leon, 468 U.S. 897, 922-923, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).[1] Nonetheless, under our precedents, the fact that a neutral magistrate has issued a warrant authorizing the allegedly unconstitutional search or seizure does not end the inquiry into objective reasonableness. Rather, we have recognized an exception allowing suit when "it is obvious that no reasonably competent officer would have concluded that a warrant should issue." Malley, 475 U.S., at 341, 106 S.Ct. 1092. The "shield of immunity" otherwise conferred by the warrant, id., at 345, 106 S.Ct. 1092, will be lost, for example, where the warrant was "based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable," Leon, 468 U.S., at 923, 104 S.Ct. 3405 (internal quotation marks omitted).[2]..
The question in this case is not whether the Magistrate erred in believing there was sufficient probable cause to support the scope of the warrant he issued. It is instead whether the Magistrate so obviously erred that any reasonable officer would have recognized the error. The occasions on which this standard will be met may be rare, but so too are the circumstances in which it will be appropriate to impose personal liability on a lay officer in the face of judicial approval of his actions. Even if the warrant in this case were invalid, it was not so obviously lacking in probable cause that the officers can be considered "plainly incompetent" for concluding otherwise. Malley, supra, at 341, 106 S.Ct. 1092. The judgment of the Court of Appeals 1251*1251 denying the officers qualified immunity must therefore be reversed.serschmidt v. Millender, 132 S.Ct. 1235
In United States v. Leon, 468 U. S. 897 (1984), this Court ruled that the Fourth Amendment exclusionary rule does not apply to evidence obtained by police officers who acted in objectively reasonable reliance upon a search warrant issued by a neutral magistrate, but where the warrant was ultimately found to be unsupported by probable cause. See also Massachusetts v. Sheppard, 468 U. S. 981 (1984). The present case presents the question whether a similar exception to the exclusionary rule should be recognized when officers act in objectively reasonable reliance upon a statute authorizing warrantless administrative searches, but where the statute is ultimately found to violate the Fourth Amendment…
When evidence is obtained in violation of the Fourth Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure. Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). The Court has stressed that the "prime purpose" of the exclusionary rule "is to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures." United States v. Calandra, 414 U. S. 338, 347 (1974). Application of the exclusionary rule "is neither intended nor able to `cure the invasion of the defendant's rights which he has already suffered.' " United States v. Leon, 468 U. S., at 906, quoting Stone v. Powell, 428 U. S. 465, 540 (1976) (WHITE, J., dissenting). Rather, the rule "operates as `a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.' " 468 U. S., at 906, quoting United States v. Calandra, 414 U. S., at 348.
As with any remedial device, application of the exclusionary rule properly has been restricted to those situations in which its remedial purpose is effectively advanced. Thus, in various circumstances, the Court has examined whether the rule's deterrent effect will be achieved, and has weighed the likelihood of such deterrence against the costs of withholding reliable information from the truth-seeking process. See, e. g., United States v. Janis, 428 U. S. 433, 454 (1976) (evidence obtained by state officers in violation of Fourth Amendment may be used in federal civil proceeding because likelihood of deterring conduct of state officers does not outweigh societal costs imposed by exclusion); United States v. Calandra, 414 U. S., at 351-352 (evidence obtained in contravention of Fourth Amendment may be used in grand jury proceedings because minimal advance in deterrence of police 348*348 misconduct is outweighed by expense of impeding role of grand jury).
Dissent
The Court today extends the good-faith exception to the Fourth Amendment exclusionary rule, United States v. Leon, 468 U. S. 897 (1984), in order to provide a grace period for unconstitutional search and seizure legislation during which the State is permitted to violate constitutional requirements with impunity. Leon's rationale does not support this extension of its rule, and the Court is unable to give any independent reason in defense of this departure from established precedent. Accordingly, I respectfully dissent.
We decline to extend the rule of standing in Fourth Amendment cases in the manner suggested by petitioners. As we stated in Alderman v. United States, 394 U. S. 165, 174 (1969), "Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously 134*134 asserted." See Brown v. United States, 411 U. S. 223, 230 (1973); Simmons v. United States, 390 U. S. 377, 389 (1968); Wong Sun v. United States, 371 U. S. 471, 492 (1963); cf. Silverman v. United States, 365 U. S. 505, 511 (1961); Gouled v. United States, 255 U. S. 298, 304 (1921). A person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person's premises or property has not had any of his Fourth Amendment rights infringed. Alderman, supra, at 174. And since the exclusionary rule is an attempt to effectuate the guarantees of the Fourth Amendment, United States v. Calandra, 414 U. S. 338, 347 (1974), it is proper to permit only defendants whose Fourth Amendment rights have been violated to benefit from the rule's protections.[3] See Simmons v. United States, supra, at 389. There is no reason to think that a party whose rights have been infringed will not, if evidence is used against him, have ample motivation to move to suppress it. Alderman, supra, at 174. Even if such a person is not a defendant in the action, he may be able to recover damages for the violation of his Fourth Amendment rights, see Monroe v. Pape, 365 U. S. 167 (1961), or seek redress under state law for invasion of privacy or trespass..
Each time the exclusionary rule is applied it exacts a substantial social cost for the vindication of Fourth Amendment rights. Relevant and reliable evidence is kept from the trier of fact and the search for truth at trial is deflected. See United States v. Ceccolini, 435 U. S. 268, 275 (1978); Stone v. Powell, 428 U. S. 465, 489-490 (1976); United States v. Calandra, 414 U. S., at 348-352. Since our cases generally 138*138 have held that one whose Fourth Amendment rights are violated may successfully suppress evidence obtained in the course of an illegal search and seizure, misgivings as to the benefit of enlarging the class of persons who may invoke that rule are properly considered when deciding whether to expand standing to assert Fourth Amendment violations.[6]
This case lies at the crossroads of the Fourth and the Fifth Amendments. Petitioner was arrested without probable cause and without a warrant. He was given, in full, the warnings prescribed by Miranda v. Arizona, 384 U. S. 436 (1966). Thereafter, while in custody, he made two inculpatory statements. The issue is whether evidence of those statements was properly admitted, or should have been excluded, in petitioner's subsequent trial for murder in state court. Expressed another way, the issue is whether the statements were to be excluded 592*592 as the fruit of the illegal arrest, or were admissible because the giving of the Miranda warnings sufficiently attenuated the taint of the arrest. See Wong Sun v. United States, 371 U. S. 471 (1963). The Fourth Amendment, of course, has been held to be applicable to the States through the Fourteenth Amendment. Mapp v. Ohio, 367 U. S. 643 (1961)…
The Court in Wong Sun, as is customary, emphasized that application of the exclusionary rule on Toy's behalf protected Fourth Amendment guarantees in two respects: "in terms of deterring lawless conduct by federal officers," and by "closing the doors of the federal courts to any use of evidence unconstitutionally obtained." Ibid. These considerations of deterrence and of judicial integrity, by now, have become rather commonplace in the Court's cases. See e. g., United States v. Peltier, ante, at 535-538; United States v. Calandra, 414 U. S. 338, 347 (1974); Terry v. Ohio, 392 U. S. 1, 12-13, 28-29 (1968). "The rule is calculated to prevent, not to repair. Its purpose is to deter—to compel respect for the 600*600 constitutional guaranty in the only effectively available way—by removing the incentive to disregard it." Elkins v. United States, 364 U. S. 206, 217 (1960). But "[d]espite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons." United States v. Calandra, 414 U. S., at 348. See also Michigan v. Tucker, 417 U. S. 433, 446-447 (1974).[5]..
This Court has described the Miranda warnings as a "prophylactic rule", Michigan v. Payne, 412 U. S. 47, 53 (1973), and as a "procedural safeguard," Miranda v. Arizona, 384 U. S., at 457, 478, employed to protect Fifth Amendment rights against "the compulsion inherent in custodial surroundings." Id., at 458. The function of the warnings relates to the Fifth Amendment's guarantee against coerced self-incrimination, and the exclusion 601*601 of a statement made in the absence of the warnings, it is said, serves to deter the taking of an incriminating statement without first informing the individual of his Fifth Amendment rights.
Although, almost 90 years ago, the Court observed that the Fifth Amendment is in "intimate relation" with the Fourth, Boyd v. United States, 116 U. S. 616, 633 (1886), the Miranda warnings thus far have not been regarded as a means either of remedying or deterring violations of Fourth Amendment rights. Frequently, as here, rights under the two Amendments may appear to coalesce since "the `unreasonable searches and seizures' condemned in the Fourth Amendment are almost always made for the purpose of compelling a man to give evidence against himself, which in criminal cases is condemned in the Fifth Amendment." Ibid.; see Mapp v. Ohio, 367 U. S., at 646 n. 5. The exclusionary rule, however, when utilized to effectuate the Fourth Amendment, serves interests and policies that are distinct from those it serves under the Fifth. It is directed at all unlawful searches and seizures, and not merely those that happen to produce incriminating material or testimony as fruits. In short, exclusion of a confession made without Miranda warnings might be regarded as necessary to effectuate the Fifth Amendment, but it would not be sufficient fully to protect the Fourth. Miranda warnings, and the exclusion of a confession made without them, do not alone sufficiently deter a Fourth Amendment violation.[6]
Thus, even if the statements in this case were found to be voluntary under the Fifth Amendment, the Fourth 602*602 Amendment issue remains. In order for the causal chain, between the illegal arrest and the statements made subsequent thereto, to be broken, Wong Sun requires not merely that the statement meet the Fifth Amendment standard of voluntariness but that it be "sufficiently an act of free will to purge the primary taint." 371 U. S., at 486. Wong Sun thus mandates consideration of a statement's admissibility in light of the distinct policies and interests of the Fourth Amendment.
The trial court suppressed Harris' first and third statements; the State does not challenge those rulings. The sole issue in this case is whether Harris' second statement — the written statement made at the station house — should have been suppressed because the police, by entering Harris' home without a warrant and without his consent, violated Payton v. New York, 445 U. S. 573 (1980), which held that the Fourth Amendment prohibits the police from effecting a warrantless and nonconsensual entry into a suspect's home in order to make a routine felony arrest…
This case is therefore different from Brown v. Illinois, 422 U. S. 590 (1975), Dunaway v. New York, 442 U. S. 200 (1979), and Taylor v. Alabama, 457 U. S. 687 (1982). In each of those cases, evidence obtained from a criminal defendant 19*19 following arrest was suppressed because the police lacked probable cause. The three cases stand for the familiar proposition that the indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality. See also Wong Sun v. United States, 371 U. S. 471 (1963). We have emphasized, however, that attenuation analysis is only appropriate where, as a threshold matter, courts determine that "the challenged evidence is in some sense the product of illegal governmental activity." United States v. Crews, supra, at 471. As Judge Titone, concurring in the judgment on the basis of New York state precedent, cogently argued below, "[i]n cases such as Brown v. Illinois (supra) and its progeny, an affirmative answer to that preliminary question may be assumed, since the `illegality' is the absence of probable cause and the wrong consists of the police's having control of the defendant's person at the time he made the challenged statement. In these cases, the `challenged evidence' — i. e., the post arrest confession — is unquestionably `the product of [the] illegal governmental activity' — i. e., the wrongful detention." 72 N. Y. 2d, at 625, 532 N. E. 2d, at 1235.
Harris' statement taken at the police station was not the product of being in unlawful custody. Neither was it the fruit of having been arrested in the home rather than someplace else. The case is analogous to United States v. Crews, supra. In that case, we refused to suppress a victim's in-court identification despite the defendant's illegal arrest. The Court found that the evidence was not " `come at by exploitation' of . . . the defendant's Fourth Amendment rights," and that it was not necessary to inquire whether the "taint" of the Fourth Amendment violation was sufficiently attenuated to permit the introduction of the evidence. 445 U. S., at 471. Here, likewise, the police had a justification to question Harris prior to his arrest; therefore, his subsequent statement was not an exploitation of the illegal entry into Harris' home.
In Stone v. Powell, 428 U.S. 465 (1976), the Court, using its familiar cost-benefit analysis, held that the exclusionary rule could not be injured in habeas corpus proceedings to challenge Fourth Amendment viol a i ions that resulted in evidence being admitted at a state trial. The Court stated that in the context of habeas proceedings, "the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force." The deterrent effect of exclusion was considered low because the habeas proceeding is collateral to the criminal trial and therefore not something officers would think about in deciding whether to conduct an illegal search. And the costs of exclusion are especially high because reversing a state conviction on habeas review implicates serious federalism and finality interests. The practical consequence of Stone is that unless the Supreme Court grants certiorari, no federal court will ever review a state court ruling on a Fourth Amendment issue. Parole
During the period in which the substantive scope of the writ was expanded, the Court did not consider whether exceptions to full review might exist with respect 479*479 to particular categories of constitutional claims. Prior to the Court's decision in Kaufman v. United States, 394 U. S. 217 (1969), however, a substantial majority of the Federal Courts of Appeals had concluded that collateral review of search-and-seizure claims was inappropriate on motions filed by federal prisoners under 28 U. S. C. § 2255, the modern postconviction procedure available to federal prisoners in lieu of habeas corpus.[12] The primary rationale advanced in support of those decisions was that Fourth Amendment violations are different in kind from denials of Fifth or Sixth Amendment rights in that claims of illegal search and seizure do not "impugn the integrity of the fact-finding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers." 394 U. S., at 224. See Thornton v. United States, 125 U. S. App. D. C. 114, 368 F. 2d 822 (1966).
Kaufman rejected this rationale and held that search-and-seizure claims are cognizable in § 2255 proceedings. The Court noted that "the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial," 394 U. S., at 225, citing, e. g., Mancusi v. DeForte, 392 480*480 U. S. 364 (1968); Carafas v. LaVallee, 391 U. S. 234 (1968), and concluded, as a matter of statutory construction, that there was no basis for restricting "access by federal prisoners with illegal search-and-seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners," 394 U. S., at 226. Although in recent years the view has been expressed that the Court should re-examine the substantive scope of federal habeas jurisdiction and limit collateral review of search-and-seizure claims "solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts," Schneckloth v. Bustamonte, 412 U. S. 218, 250 (1973) (POWELL, J., concurring),[13] the Court, without discussion or consideration of the issue, has continued to accept jurisdiction in cases raising such claims. See Lefkowitz v. Newsome, 420 U. S. 283 (1975); Cady v. Dombrowski, 413 U. S. 433 (1973); Cardwell v. Lewis, 417 U. S. 583 (1974) (plurality opinion).[14]
The discussion in Kaufman of the scope of federal habeas corpus rests on the view that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, requires the granting of habeas corpus relief when a prisoner has been convicted 481*481 in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, 367 U. S. 643 (1961), to require exclusion of such evidence at trial and reversal of conviction upon direct review.[15] Until these cases we have not had occasion fully to consider the validity of this view. See, e. g., Schneckloth v. Bustamonte, supra, at 249 n. 38; Cardwell v. Lewis, supra, at 596, and n. 12. Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified.[16] We hold, therefore, that 482*482 where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.[17]..
The balancing process at work in these cases also finds expression in the standing requirement. Standing to invoke the exclusionary rule has been found to exist only when the Government attempts to use illegally obtained evidence to incriminate the victim of the illegal search. Brown v. United States, 411 U. S. 223 (1973); Alderman v. United States, 394 U. S. 165 (1969); Wong Sun v. United States, 371 U. S. 471, 491-492 (1963). See Jones v. United States, 362 U. S. 257, 261 (1960). The standing requirement is premised on the view that the "additional benefits of extending the . . . rule" to defendants other than the victim of the search or seizure are outweighed by the "further encroachment upon the 489*489 public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, supra, at 174-175.[26]..
In sum, we conclude that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim,[36] a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.[37] In this context the 495*495 contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force.[38]
In Franks v. Delaware, 438 U.S. 154 (1978), the Court held that a defendant has a limited right to attack the truthfulness of statements made in warrant applications. But the Court emphasized that it is difficult for a defendant to mount a successful challenge, because in order to obtain a hearing the defendant must make a case that the officers preparing the application engaged in deliberate falsification or reckless disregard for the truth that materially affected the showing of probable cause
Abstract
The Supreme Court made it clear as early as 1933 that simply officers acting pursuant to a warrant does not insulate evidence seized from being suppressed if the facts presented are deemed insufficient by a reviewing court to establish probable cause (Nathanson v. United States). The principle that a warrant can be challenged after its issuance was later relied upon by the Court to invalidate arrest warrants as well as search warrants. After Mapp V. Ohio made the exclusionary rule applicable to the States, it was similarly relied upon to strike down warrants in State cases. In Rugendorf v. United States, the Court held that inaccurate information in an affidavit which is not necessary to a finding of probable cause and which does not impinge upon the integrity of the affiant will not cause a warrant to be invalidated. In Franks v. Delaware (1978), the Court made it clear that only where the defense has proof that the affiant lied or acted with a reckless disregard for the truth with respect to some material statement in the affidavit will a hearing regarding such be required. A deliberate falsehood by a nonaffiant, fellow officer may fall within the Franks rule, but an informant's misrepresentation will have no effect on the validity of the warrant. To be guilty of 'reckless disregard for the truth,' the officer must have entertained serious doubt as to the truth of the information inserted in the affidavit. The post-Franks decisions express due regard for the confidentiality of informants, but officers should note that courts may require an in camera hearing to ensure the existence of the informant and the fact that the officer has not misrepresented the informant's information. Endnotes and a chart are included.
The Supreme Court has also applied the Franks principle where a warrant has been approved in reliance on an affidavit containing information obtained through illegal surveillance. See United States v. Karo, 468 U.S. 705, 719, 104 S.Ct. 3296, 3305, 82 L.Ed.2d 530 (1984), where the Court held that warrantless monitoring of a beeper in a private residence violated the Fourth Amendment, but that a warrant obtained on the strength of an affidavit containing information gathered through such surveillance was nevertheless valid "if sufficient untainted evidence was presented in the warrant affidavit to establish probable cause."
Every other circuit has read Franks to require that a deliberate falsehood be material if the warrant is to be voided because of falsehood…
It is clear that we are not free to use our supervisory power in a way that "would conflict with the harmless error inquiry mandated by the Federal Rules of Criminal Procedure." Bank of Nova Scotia v. United States, 487 U.S. 250, ___, 108 S.Ct. 2369, 2373, 101 L.Ed.2d 228 (1988); see also United States v. Hasting, 461 U.S. 499, 103 S.Ct. 1974, 76 L.Ed.2d 96 (1983). To require that a warrant be voided and all evidence seized thereunder be suppressed because of immaterial false statements would fly in the face of the harmless error rule. We also note that the materiality rule is consistent with our construction of federal statutes criminalizing false statements. See United States v. Adams, 870 F.2d 1140 (6th Cir.1989), (perjury); United States v. Abadi, 706 F.2d 178 (6th Cir.), cert. denied, 464 U.S. 821, 104 S.Ct. 86, 78 L.Ed.2d 95 (1983) (false statements in matters within jurisdiction of federal agency); see also United States v. Korman, 614 F.2d 541, 551 (6th Cir.) (Merritt, J., dissenting) ("A rule requiring automatic suppression without regard to the materiality of false information in a search warrant affidavit would be overkill just as would conviction of securities fraud or perjury for irrelevant misrepresentation."), cert. denied, 446 U.S. 952, 100 S.Ct. 2918, 64 L.Ed.2d 808 (1980)…
We turn now to the question whether the untainted portion of the affidavit in this case sufficiently supported a finding of probable cause under the "totality of the circumstances" test enunciated in Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983). Setting to one side the false statements, the district court concluded that the five totally truthful paragraphs of the affidavit contained sufficient information to justify a finding of probable cause. We agree…
This is precisely the sort of hair-splitting analysis the Supreme Court has directed the lower courts to eschew in favor of a common sense "totality of the circumstances" test. The untainted paragraphs of the affidavit contain information from three independent, reliable informants concerning the defendant's routine possession of firearms on his person. These paragraphs amply support a finding of probable cause.
It appears to us, given the admissibility of Mrs. Graff's and respondent's out-of-court statements, that the Government sustained its burden of proving by the preponderance of the evidence that Mrs. Graff's voluntary consent to search the east bedroom was legally sufficient to warrant admitting into evidence the $4,995 found in the diaper bag.[14] But we prefer that the District Court 178*178 first reconsider the sufficiency of the evidence in the light of this decision and opinion. The judgment of the Court of Appeals is reversed and the case is remanded to the Court of Appeals with directions to remand the case to the District Court for further proceedings consistent with this opinion.
[14] Accordingly, we do not reach another major contention of the United States in bringing this case here: that the Government in any event had only to satisfy the District Court that the searching officers reasonably believed that Mrs. Graff had sufficient authority over the premises to consent to the search.
The Government also contends that the Court of Appeals imposed an unduly strict standard of proof on the Government by ruling that its case must be proved "to a reasonable certainly, by the great weight of the credible evidence." But the District Court required only that the proof be by the greater weight of the evidence and the Court of Appeals merely affirmed the District Court's judgment. There was an inadvertence in articulating the applicable burden of proof, but it seems to have been occasioned by a similar inadvertence by the Government in presenting its case. In any event, the controlling burden of proof at suppression hearings should impose no greater burden than proof by a preponderance of the evidence. See Lego v. Twomey, 404 U. S. 477, 488-489 (1972). We do not understand the Government to contend that the standard employed by the District Court was in error, and we have no occasion to consider whether it was.
Under the standing rules set out in Jones, there will be occasions, even in prosecutions for nonpossessory offenses, when a defendant's testimony will be needed to establish standing. This case serves as an example. 391*391 Garrett evidently was not in Mrs. Mahon's house at the time his suitcase was seized from her basement. The only, or at least the most natural, way in which he could found standing to object to the admission of the suitcase was to testify that he was its owner.[13] Thus, his testimony is to be regarded as an integral part of his Fourth Amendment exclusion claim. Under the rule laid down by the courts below, he could give that testimony only by assuming the risk that the testimony would later be admitted against him at trial. Testimony of this kind, which links a defendant to evidence which the Government considers important enough to seize and to seek to have admitted at trial, must often be highly prejudicial to a defendant. This case again serves as an example, for Garrett's admitted ownership of a suitcase which only a few hours after the robbery was found to contain money wrappers taken from the victimized bank was undoubtedly a strong piece of evidence against him. Without his testimony, the Government might have found it hard to prove that he was the owner of the suitcase.[14]
The dilemma faced by defendants like Garrett is most extreme in prosecutions for possessory crimes, for then the testimony required for standing itself proves an element of the offense. We eliminated that Hobson's choice in Jones v. United States, supra, by relaxing the standing requirements. This Court has never considered squarely the question whether defendants charged with nonpossessory crimes, like Garrett, are entitled to be relieved 392*392 of their dilemma entirely.[15] The lower courts which have considered the matter, both before and after Jones, have with two exceptions agreed with the holdings of the courts below that the defendant's testimony may be admitted when, as here, the motion to suppress has failed.[16] The reasoning of some of these courts would seem to suggest that the testimony would be admissible even if the motion to suppress had succeeded,[17] but the only court which has actually decided that question held that when the motion to suppress succeeds the testimony given in support of it is excludable as a "fruit" of the unlawful search.[18] The rationale for admitting the testimony when the motion fails has been that the testimony is voluntarily given and relevant, and that it is therefore entitled to admission on the same basis as any other prior testimony or admission of a party.[19]
It seems obvious that a defendant who knows that his testimony may be admissible against him at trial will sometimes be deterred from presenting the testimonial proof of standing necessary to assert a Fourth Amendment 393*393 claim. The likelihood of inhibition is greatest when the testimony is known to be admissible regardless of the outcome of the motion to suppress. But even in jurisdictions where the admissibility of the testimony depends upon the outcome of the motion, there will be a deterrent effect in those marginal cases in which it cannot be estimated with confidence whether the motion will succeed. Since search-and-seizure claims depend heavily upon their individual facts,[20] and since the law of search and seizure is in a state of flux,[21] the incidence of such marginal cases cannot be said to be negligible. In such circumstances, a defendant with a substantial claim for the exclusion of evidence may conclude that the admission of the evidence, together with the Government's proof linking it to him, is preferable to risking the admission of his own testimony connecting himself with the seized evidence.
The rule adopted by the courts below does not merely impose upon a defendant a condition which may deter him from asserting a Fourth Amendment objection—it imposes a condition of a kind to which this Court has always been peculiarly sensitive. For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment's Self-Incrimination Clause because the testimony was voluntary.[22] As an abstract matter, this may well be true. A defendant is "compelled" to testify in support of a motion to suppress only in the sense that if he 394*394 refrains from testifying he will have to forgo a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit.[23] However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit.[24] When this assumption is applied to a situation in which the "benefit" to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.
Dissent
If a motion to suppress is granted, federal law permits immediate appellate review of the ruling subject to certain conditions. 18 U.S.C. § 3731. M ost states are in accord. The federal statute provides that three conditions must be satisfied before the government can appeal from a suppression order: 1. The government cannot appeal if the defendant has been put in jeopardy, within the meaning of the Double Jeopardy Clause; 2. An appeal must not be taken for the purpose of delay; and 3. The suppressed evidence must be substantial proof of a fact material to the proceedings. See United States v. Gantt, 179 F.3d 782 (9th Cir.1999), for an application of these factors.
In abrogating the common law position reaffirmed in DiBella, Congress did not go so far as to grant the government unfettered authority to appeal suppression orders. Appeals are not permitted "after the defendant has been put in jeopardy and before the verdict or finding on an indictment or information." 18 U.S.C. § 3731. Before an appeal is filed, Congress also requires that "the United States attorney certifies to the district court that the appeal is not taken for purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." This requirement is designed to force federal prosecutors to consider whether the appeal is taken for a proper purpose before they force a defendant to relitigate the evidentiary issue. See United States v. Carrillo-Bernal, 58 F.3d 1490, 1493 (10th Cir.1995).
Unfortunately, some government attorneys from time to time treat the § 3731 certification requirement as a mere formality and even neglect to file the certification in a timely manner.[4] The failure to file the certificate does not oust our jurisdiction but does require us to decide whether to exercise our discretion under F.R.App.P. 3(a) to dismiss the appeal. See United States v. Becker, 929 F.2d 442, 445 (9th Cir.1991). While "the complete failure to file a certificate would clearly constitute a violation of the statute," id. at n. 1, we have previously accepted certificates filed even after oral argument. See id.; United States v. Eccles, 850 F.2d 1357, 1359-60 (9th Cir.1988). Other circuits have not been as generous, especially in recent years. See, e.g., United States v. Salisbury, 158 F.3d 1204, 1206-07 (11th Cir.1998) (dismissing appeal where certificate 786*786 filed one month after notice of appeal); Carrillo-Bernal, 58 F.3d at 1492 (dismissing appeal where certificate filed after court alerted parties of deficiency); United States v. Miller, 952 F.2d 866, 876 (5th Cir.1992) (dismissing appeal where certificate filed after deficiency raised in defendant's brief)…
The Ninth Circuit does require "more than the prosecutor's bare certification" to the district court to establish § 3731 compliance; the government must also demonstrate to this Court the existence of the two § 3731 conditions. United States v. Adrian, 978 F.2d 486, 490-91 (9th Cir.1992); see also United States v. Poulsen, 41 F.3d 1330, 1333 (9th Cir.1994). The government concedes that it erred in not making a case for the § 3731 conditions in its opening brief. But because there has been no allegation or indication that the appeal is being pursued for delay and because the relevance to the indictment of the items seized is unquestioned, we conclude that § 3731 has been satisfied.
The district court's decision to suppress is reviewed as a question of law, but the trial court's factual findings are, of course, reviewed for clear error. See United States v. Kemmish, 120 F.3d 937, 939 (9th Cir.1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1087, 140 L.Ed.2d 144 (1998).
The government violated F.R.Cr.P. 41(d) by failing to present Gantt with a complete copy of the warrant. Rule 41(d) provides in pertinent part: "[t]he officer taking property under the warrant shall give to the person from whom or from whose premises the property was taken a copy of the warrant and a receipt for the property taken or shall leave the copy and receipt at the place from which the property was taken. . . ." The government argues that, under the rule, agents always have the option of serving the warrant on the person or leaving the warrant behind after they have completed the search.
We reject this reading of Rule 41(d). As we have frequently explained, one of the major aims of the particularized warrant requirement is to "give notice to the person subject to the search what the officers are entitled to seize." In the Matter of Seizure of Property Belonging to Talk of the Town Bookstore, Inc., 644 F.2d 1317, 1318 (9th Cir.1981) (quoting United States v. Marti, 421 F.2d 1263, 1268 (2d Cir.1970)). Accord United States v. McGrew, 122 F.3d 847, 850 (9th Cir.1997); United States v. Van Damme, 48 F.3d at 466 (9th Cir.1995) (since affidavit did not accompany warrant "Van Damme could look at no document specifying what the officers could take."); United States v. Towne, 997 F.2d 537, 545 (9th Cir.1993); United States v. Hayes, 794 F.2d 1348, 1355 (9th Cir.1986) (one purpose of "accompany" requirement is to "inform the person subject to the search what items the officers . . . can seize."), cert. denied, 479 U.S. 1086, 107 S.Ct. 1289, 94 L.Ed.2d 146 (1987).
The government argues that even if a Rule 41(d) violation demanding suppression has occurred, the evidence should not be suppressed under the "good-faith" exception to the exclusionary rule. See United States v. Leon, 468 U.S. 897, 918, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The good-faith exception is not relevant here.
VII. Conclusion
The agents violated Rule 41(d)'s requirement that a warrant be served upon a person present at the search of her property at the time of execution absent some exigent circumstance. The violation was deliberate and prejudicial, so suppression is required under Rule 41(d) regardless of the dictates of the Fourth Amendment. Because errors in the execution of warrants are solely in the province of agents, the good-faith exception has no applicability. The decision of the district court to suppress the evidence seized at Gantt's apartment is AFFIRMED.