While the Fourth Amendment is designed to protect criminal defendants against prosecutors' use of unlawfully obtained evidence, an important exception exists for evidence obtained by law enforcement officers who rely in good faith on existing legal authority. Thus, if police rely on a statute that turns out to be unconstitutional or invalid warrants or precedent, the evidence obtained is nonetheless admissible under the good faith exception.
Empirical analyses on how the good faith exception works "on the ground," however, are scant. To this end, a recent paper, The Reality of the Good Faith Exception, by Matthew Tokson (Utah) and Michael Gentithes (Akron), helps to fill a void.
Their paper draws from available published (and unpublished) judicial decisions (N=5,531) that mention the Fourth Amendment or "motion to suppress" across three separate months (July 2015, 2018, and 2021). Among the paper's findings includes a discernible uptick in the exceptions salience over time (see Figure 1, below).
Figure 1: Good Faith Exception (GFE) Prevalence Over Time - Proportion of Fourth Amendment Suppression Cases Involving the Good Faith Exception
The authors are correctly mindful that selection effects certainly influence their descriptive findings. The authors argue that selection effects in this context likely lead, on balance, to an under-counting of suppression hearings to the extent that "defendants and their attorneys likely decline to file suppression motions because of the good faith exception." (emphasis added)
Overall, the paper argues that "the [good faith] exception, originally confined to narrow circumstances, is turning into a protection for nearly any investigatory activity with an arguable connection to an existing precedent or statute" and that "[c]ourts rely on the exception with remarkable frequency, and a large proportion of courts invoking the exception avoid any substantive constitutional ruling, stunting the development of Fourth Amendment doctrine."
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