The Supreme Court recently clarified the scope of the good faith exception to the exclusionary rule in Herring v. United States. The Court's decision, however, did not address whether the good faith exception should apply to illegal predicate searches. Illegal predicate searches are searches where a police officer misapplies the law and conducts an illegal search that yields evidence later used to obtain a search warrant. There is currently a circuit split on the application of the good faith exception to situations where there has been an illegal predicate search. Some circuits have held that even though the searching officer was directly at fault for the illegal search, the good faith exception can be invoked if the search was close enough to the line of validity, thus making the search objectively reasonable. Other circuits, however, have ruled that if the police officer is wholly responsible for misapplying the law when deciding to conduct an illegal search, then the state is per se precluded from arguing good faith. This Note argues that in order to honor the deterrent purposes of the exclusionary rule, and in order to deter institutional ignorance of the protections afforded by the Fourth Amendment, future courts should not extend the good faith exception to these kinds of illegal searches.
Andrew Z. Lipson,
The Good Faith Exception as Applied to Illegal Predicate Searches: A Free Pass to Institutional Ignorance,
60 Hastings L.J. 1147
Available at: https://repository.uchastings.edu/hastings_law_journal/vol60/iss5/5