April 2009, VOL. 31 NO.

4 8
c r i m i n a l l a w
I
t has been said that nobody rides
for free. Tis axiom might carry
more weight in Nevadas criminal
justice system with a recent Supreme
Court opinion invigorating an exception
to evidence exclusion as a sanction against
the State. Te reason? Tis sti sanction
is becoming too expensive in instances of
isolated police negligence. As observed
by a former Nevada Supreme Court
Chief Justice: Truth and criminal
accountability are the primary victims of
the exclusionary rule. Has the economy
of our criminal justice system suciently
changed to permit everyone to pay their
fair share? Te opinion of Herring v.
United States, __ U.S. __, 129 S.Ct. 695
(January 14, 2009) suggests it is time for
change.
HISTORICAL BASIS FOR
EXCLUDING EVIDENCE AGAINST
THE STATE FOR SEARCH AND
SEIZURE VIOLATIONS
In response to numerous intentional
search and seizure abuses by law
enforcement, the judiciary created the
evidence exclusion sanction in criminal
trials. Tis sanction bars the use of evidence
obtained in violation of the Fourth
Amendment. Weeks v. United States, 232
U.S. 383 (1914); Mapp v. Ohio, 367 U.S.
643 (1961). It was a sanction by design,
not an accuseds personal constitutional
right. Te sanctions target and purpose
was unique: to prevent the executive from
benetting by violating the constitutional
prohibition against unreasonable searches
and seizures. Te sanctions eect would
deter police misconduct by removing the
executive gain from misconduct. Because
of the substantial social costs of evidence
exclusion (oftentimes a de facto charge
A weaker economy for the criminal exclusionary sanction?
dismissal), courts have understandably
struggled with an across-the-board
application of the sanction.
MITIGATING THE PRICE TAG:
THE LEON COST-BENEFIT
FORMULA TO ASSESS THE
PROPER REMEDY
In 1984, the judiciary crafted a
narrow, bright-line exception to this
sanction. Where law enforcement acts
in objective reasonable reliance (or good
faith) upon a judicial warrant that later
proves defective, the evidence need not
be excluded. United States v. Leon, 468
U.S. 897 (1984). In Leon, the United
States Supreme Court found that a
police adavit lacked probable cause
and, therefore, narcotics were improperly
gathered under the Fourth Amendment.
Nevertheless, the Supreme Court said
Leons jury would be allowed to consider
the drugs in the criminal case against
him. Te court adopted a cost-benet
approach to when the exclusionary
sanction should apply. On the cost side,
the court found the price tag was high:
some guilty defendants will go free or
receive reduced sentences. On the benet
side, the court noted only marginal or
nonexistent benets are gleaned from
suppressing evidence when the executive
branch reasonably relies upon a judicially
authorized search warrant. Terefore, the
resulting Leon formula is that the costs of
excluding evidence are not justied when
the police commit no misconduct that
would be deterred by evidence exclusion.
NEVADAS APPROACH: RARE
AND NARROW APPLICATIONS
Our Nevada Supreme Court quickly
acknowledged the merits of the reasonable
reliance warrant-based exception. Despite
the initial embrace however, our court has
applied the Leon rule only a handful of
times in the ensuing twenty-ve years.
In Powell v. State, 113 Nev. 41 (1997),
our court made the rst meaningful
application of the evidence exclusion
exception. Powell made incriminating
in-custody statements four days after he
was lawfully arrested in Clark county
for felony child abuse. Powell moved
to suppress those statements because the
court failed to independently review the
arresting ocers sworn basis of probable
cause for Powells arrest until the day of
Powells admissions; 48 hours too late by
case law. Applying the Leon exception,
our court denied Powells motion to
suppress his statements made during his
illegal detention. Te Leon rule applied to
Powells statements because the judiciary
failed, not the executive. Excluding
Powells statements would not serve the
essence of the exclusionary rules function
which is to deter police misconduct, not
court negligence or misconduct.
Only ve years ago however, our
court expressly refused to apply the
Leon exception. State v. Allen, 119
Nev. 166 (2003) (Allen II). Te police
arrested Allen following the service of a
search warrant at her Humbolt county
residence that yielded narcotics. Allen
moved to suppress the drugs, claiming
the warrant document should have had
the police adavit supporting probable
cause attached to the warrant when
the searching ocer left a copy at her
residence. Te ocer testied he never
received any such training and there was
no express statutory requirement. Our
Supreme Court stated that implicit [in
the statute authorizing a warrant] is that
Bruce Hahn
April 2009, VOL. 31 NO. 4
9
a statement of probable cause be included
in the warrant. Our court reasoned that
the ocers reliance upon the judicial
warrant without a statement of probable
cause in it, or without attaching the
adavit to the warrant, was simply
not objectively reasonable. Customary
objective reasonableness by the police
was constrained and Leon was cabined in
Nevada.
A NEW HORIZON TO MINIMIZE
COSTS?
In Herring v. United States, the United
States Supreme Court has now squarely
spoken to the Leon exception for the rst
time in fourteen years. Herring has now
applied the reasonable reliance warrant-
based exception in two new contexts.
First, the court applied the Leon rule in
the context of an arrest warrant. Second,
and more signicantly, the court applied
Leon where the executive branch acted
negligently by relying upon a warrant
that had been recalled.
Learning from a neighboring law
enforcement database that Herring had
an active arrest warrant; an investigating
county arrested Herring and immediately
searched him and his vehicle incident
to that arrest. Herring possessed
methamphetamine on his person and
a rearm in his truck; an illegal item
for a convicted felon. Within minutes
after Herrings arrest and search, the
neighboring county contacted the
arresting county after discovering that
Herrings arrest warrant had been recalled
by their court ve months ago. Te
neighboring county then acknowledged
that their local police database had not
been updated to reect the recall.
Herring moved to exclude the drugs
and gun because of the preceding Fourth
Amendment violation. He rightfully
claimed he had been illegally seized and
searched because the arrest warrant was not
valid at the time of his arrest. Te federal
district court denied his suppression
motion nding that the ocers error was
1) a negligent failure to act, not a tactical
deliberate choice, 2) the ocer acted in
a good faith belief the warrant was valid
and 3) that excluding the evidence would
not deter future police mistakes. Te
Eleventh Circuit armed.
Te United States Supreme Court
also armed, nding that the drugs and
gun were admissible even though the
arrest and search were based on a recalled
warrant. Te essential Leon premises
were armed: 1) evidence exclusion is
not an automatic remedy for a Fourth
Amendment violation, 2) the exclusion
remedy should be rst assessed by the
potential that evidence exclusion has
to deter police misconduct, and 3) the
deterrence benets must outweigh the
costs. However, the court went further.
Te majority recognized that excluding
the evidence here would provide some
incremental deterrent against police
misconduct by encouraging the executive
to maintain more accurate warrant
databases. Nonetheless, the majority
found that same benet insubstantial on
the balance with the articulable social
costs: letting guilty and possibly
dangerous defendants go free something
that oends basic concepts of the criminal
justice system. Of greater interest, the
majority held that when police mistakes
are the result of negligence such as that
described here, rather than systemic error
or reckless disregard of constitutional
requirements, any marginal deterrence
does not pay its way. Terefore, in the
majority view of the federal constitution,
the costs of the exclusion sanction have
mounted, and the requisite benet
standard balance must be beyond mere
negligence of the executive branch.
WHERE DO WE GO FROM HERE?
As to our Nevada constitution, the
Nevada Supreme Court has in recent years
been vigilant in interpreting Article I,
18 search and seizure provisions as being
more restrictive against executive power
than its Fourth Amendment Federal
counterpart. Our court has also put the
vitality of the Leon exception in doubt
with Allen II. Now, a new stimulus to
the Leon exception in our criminal justice
economy has arrived under Herring. Is
our court likely to adopt a higher cost-
benet standard before applying the
exclusionary sanction?
Eective services and management
by all three branches of government is
hopelessly dependent upon computer
technology. We have entered an economy
of decreasing governmental resources
to eectively supervise that technology.
Tis combination is a recipe for search
and seizure error in the criminal justice
system. Against this landscape, the
costs of the exclusion sanction are
escalating. Perhaps a new cost-benet
standard for Nevadas system may be in
order, as suggested by the United States
Supreme Court. Is that mounting cost
still outweighed by attenuated negligence
of police ocers with a warrant in
hand? Perhaps in todays criminal justice
economy, everyone should pay their fair
share.
Bruce Hahn has been a Washoe County
criminal prosecutor for 15 years and
serves as the Chief Deputy of the Domestic
Violence-Sex Crimes
Unit. He teaches Search
and Seizure law at the
Northern Nevada Law
Enforcement Academy
and is a guest lecturer
in Criminal Law at the
University of Nevada, Reno.