MOVING TARGETS: PLACING THE GOOD FAITH DOCTRINE IN THE CONTEXT OF FRAGMENTED POLICING

Hadar Aviram, University of California, Hastings College of the Law

Abstract

This is a working draft, please do not cite or distribute without the author's permission.

Recent critiques of the Supreme Court decision in Herring v. United States have focused on the impact of the new mens rea standard for good faith on the scope of the exclusionary rule. This article offers a different reading of the Herring decision. Using the facts of Herring, its relationship to Arizona v. Evans, and examining the circuit split regarding illegal predicate searches, Herring can be understood as n acknowledgment of the realities of the localized and fragmented nature of American policing. In a universe of multiple police agencies, with formal and informal collaborations and problematic jurisdictional boundaries, the Herring decision can be read to suggest that the Constitution cannot hold one police agency accountable for the mistake of another.

The article moves on to argue that the Herring outcome shapes the good faith doctrine in a fundamentally unfair way. The police wield government power as an overarching actor in search and seizure situations, but avoid accountability for mistakes and violations due to fragmentation. This structure is particularly problematic in light of the Supreme Court’s reliance on deterrence as the main rationale for the exclusionary rule, and opens the door to several forms of abuse at the local level, in addition to wasteful incentives which may hinder consolidation of, and collaboration among, different agencies.

In light of this problematic outcome, the article calls for a clearer standard for good faith, which acknowledges the need for unified, consistent government accountability for police mistakes.