Courts use the good faith exception as a tool of last resort. When all other arguments fail and the court does not want to suppress evidence, they will find the good faith exception in the corner of the cupboard. Prosecutors may use it as a Hail Mary pass when all other arguments fail. There is little chance of success, but the desperate play pans out every once in a while. This sparingly used exception is used primarily in two situations: (1) when officers reasonably rely on a defective warrant; and (2) when police adhere to statutes found unconstitutional. When courts apply the good faith exception, however, it swallows the exclusionary rule and leaves citizens no redress. Without the exclusionary rule, the Fourth Amendment grants a right with no remedy. (Justice Breyer in Davis v. United States and Hudson v. Michigan). The framers of our Bill of Rights certainly did not intend such a consequence.
In 1984, United States v. Leon modified the exclusionary rule to not bar evidence when an officer reasonably relies on a defective warrant. The Court used a balancing test and reasoned that the benefit of deterring police misconduct by suppressing the evidence did not outweigh the costs of suppressing the truth. The Court also applied the good faith exception when a database erroneously informed officers that they had a warrant in Arizona v. Evans and Herring v. United States and when an unconstitutional statute authorized a search in Illinois v. Krull.
Fortunately, the Minnesota Supreme Court has repeatedly refused to adopt the good faith exception to defective warrants. (See State v. Jackson at 180, citing four different Minnesota Supreme Court decisions declining to use the good faith exception). In State v. Smith, however, the Minnesota Court of Appeals did not apply the exclusionary rule when officers reasonably relied on a window-tint statute to stop a vehicle. The court of appeals assumed that the statute was unconstitutional, but determined law enforcement acted in good faith when enforcing it. The court outlined a five-part test to determine whether the exclusionary rule should apply. Part two states that the exclusionary rule is not appropriate when: “the legislation in question did not authorize a warrantless search in the gathering of evidence”. (Smith at 550–51). This is where Smith is distinguishable from McNeely challenges. Minnesota’s Implied Consent law does authorize a warrantless search whereas the statute in Smith merely proscribed excessively tinted windows.
In 2003, the Minnesota Supreme Court found a statute unconstitutional that allowed police to stop vehicles that displayed special series registration plates (a.k.a. whiskey plates) in State v. Henning. No individualized suspicion was required at the time of the stop. And, officers were merely acting in good faith by following the statute. The Court applied the balancing test and found that the privacy of the travelling public outweighed the minimal intrusion of a seizure to determine if someone was driving while impaired. The purpose of exclusionary rule is not to punish individual officers or to suppress the truth, but rather to enforce the Fourth Amendment.
In McNeely challenges, some prosecutors and attorney generals believe that officers rely in good faith on Minnesota’s Implied Consent statutes. They believe the DWI laws do not mandate officers to get a warrant for a breath, blood, or urine test and the officers are merely following the law. They believe that the deterrent benefit of suppressing the test results, obtained without a warrant and in violation of the Fourth Amendment, does not outweigh the cost to society by not imposing any consequences on drunk drivers. Thankfully, this ends-justify-the-means-argument falls on deaf ears in Minnesota. “We have never before simply allowed the ends to justify the means when the means void our citizens’ constitutional protections.” (Justice Gilbert in State v. Henning at 386).
As attorneys continue to sort through exceptions to the warrant requirement in McNeely cases, the good faith exception has emerged. Thankfully, this desperation play is generally unsuccessful. If the courts do apply the good faith exception to McNeely cases, then will they assume, or find, that Minnesota’s Implied Consent law is unconstitutional?
Robert H. Ambrose is an attorney for the The Kans Law Firm in Bloomington, Minnesota. He protects his clients’ constitutional rights by challenging DWI cases across the state.