Illegal Predicate Searches and Tainted Warrants After <i>Heien</i> and <i>Strieff</i>01 Jan 2018
A long-standing debate has surrounded the relationship between two features of the Fourth Amendment's exclusionary rule - the fruits of the poisonous tree doctrine and the good-faith exception - in cases where the evidence used to secure a search warrant was obtained in violation of the defendant's constitutional rights. Some judges and scholars maintain that the fruits of the poisonous tree doctrine takes precedence in such "tainted warrant" cases, leading to the suppression of any evidence seized in executing the warrant unless the warrant was supported by probable cause independent of the illegal predicate search. By contrast, others believe that the good-faith exception should be available in these circumstances because the police acted in reasonable reliance on a search warrant.
Two recent Fourth Amendment opinions issued by the Supreme Court - the 2014 mistake of law ruling in Heien v. North Carolina and the 2016 fruits of the poisonous tree decision in Utah v. Strieff - limited the consequences of errors police make in conducting Terry stops and potentially have implications for the tainted warrant cases. In examining the impact these two opinions may have on the admissibility of evidence seized pursuant to a tainted warrant, this Article approaches the tension between the poisonous tree doctrine and the good-faith exception first by disaggregating the tainted warrant cases depending on what type of law enforcement mistake led to the unconstitutional predicate search and then by analogizing to the standards of appellate review.
A warrant may be tainted because the officer conducting the predicate search made a mistake of fact, a mistake about the reach of state criminal law, a mistake about the existence of probable cause or reasonable suspicion, or a mistake about some other substantive Fourth Amendment doctrine. Examining each type of error in turn, this Article concludes that the Court's current Fourth Amendment jurisprudence is adequate to address all varieties of tainted warrants, that law enforcement misrepresentations of state criminal codes can be evaluated under Heien and that Strieff's attenuation analysis does not call for excusing any additional tainted warrants. The Article therefore argues against extending the good-faith exception to save any tainted warrant that cannot survive under the Court's existing case law and that is not supported by probable cause independent of the impermissible predicate search.