Government Misconduct Blog – The Good Faith Exception May Not Require Much Good
Last week, in United States v Michaud, the First Circuit forgave FBI agents who violated the Fourth Amendment by illegally placing a GPS device on a vehicle. The court distinguished between law enforcement using “new investigative methods in the face of uncertainty,” which is bad, and law enforcement relying on “clear and settled principles to install a [new technology] instead of [an old technology], and then to monitor it for over a week,” which is apparently good. This decision may cause law enforcement to feel more empowered than they are to rely on faith when violating privacy rights.
For several reasons, the FBI and other law enforcement agents should not embark more freely on police-state inquisitions just yet. First of all, other court rulings suggest that the good faith exception to the exclusionary rule does “not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw.” Second, the parties in Michaud did not sufficiently build a record concerning the FBI’s ability to seek a warrant within the eleven-day monitoring period even if one were not available at the start. Third, nothing in Michaud relieves state actors of potential financial liability, in a Bivens or Section 1983 action, for those constitutional violations. Faith is not enough by itself to avoid the exclusionary rule.. Good faith is the standard.
Limitations on the holding in Michaud can be found in its conclusion:
[The] good-faith exception is not a license for law enforcement to forge ahead with new investigative methods in the face of uncertainty as to their constitutionality. “The justifications for the good-faith exception do not extend to situations in which police officers have interpreted ambiguous precedent or relied on their own extrapolations from existing caselaw.” …The good-faith exception is, however, properly applied in cases like this one (or Davis itself), where new developments in the law have upended the settled rules on which the police relied