A. The Exclusionary Rule Cases
Exclusionary rule cases expose a good cop paradigm. The exclusionary rule requires that evidence seized by government agents in violation of a defendant's Fourth Amendment rights be excluded from a criminal trial to determine the defendant's guilt. The Court imposed exclusion in Mapp v. Ohio as the sole remedy available to a defendant involved in a criminal trial. The Court adopted exclusion as the sole remedy because of its presumed broad deterrence value, which the Court believed had not been achieved by the local enforcement of other remedies.
The Court's presumption of the exclusionary rule's effectiveness is based on a presumption of good cops, that is, a cop who is solely or chiefly motivated by law enforcement interests. Only if cops are good will they be deterred by the exclusion of evidence at trial. If a cop does not desire or is indifferent towards criminal prosecution, exclusion embodies no deterrent value. As the Court in Terry v. Ohio noted, “[r]egardless of how effective the rule may be where obtaining convictions is an important objective of the police, it is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forego successful prosecution in the interest of serving some other goal.” Oftentimes, these officers who do not desire trial or are indifferent to it are motivated by something other than the desire to advance the accepted interests of law enforcement. Exclusion does not effect an officer who is engaged in his activity merely to harass, intimidate, or otherwise satisfy her personal desires. Exclusion, then, if it can be presumed effective, fails to contemplate or address “bad cops.” However, the remedies the Court explicitly rejects in opting for exclusion did have the potential to address bad cops.
A discussion of the trilogy of Wolf v. Colorado, Mapp v. Ohio, and United States v. Leon, demonstrates the development of the good cop paradigm in cases discussing the exclusionary rule. In Wolf, the Supreme Court refused to impose the exclusionary rule on the states as part of its decision to impose Fourth Amendment requirements on them. In rejecting exclusion, the Court observed that there were other remedies “which, if consistently enforced, would be equally effective” as exclusion. The remedies the Court considered included civil actions for damages against the searching officer, against one who procures the issuance of a warrant maliciously and without probable cause, against a magistrate who acts without jurisdiction in issuing a warrant, against persons acting with a warrant who exceed the authority granted thereby, and against one who issues a general search warrant or a warrant unsupported by affidavit. The Court also recognized the power of a court to keep an officer for contempt for violating the parameters of a warrant. Likewise, the Court noted the privilege of a private citizen to use force to repel an unlawful search.
In Mapp v. Ohio, the Supreme Court partly overruled Wolf and made the exclusionary rule applicable to the states. The Court reasoned that this extension was required to protect the integrity of the courts and to deter police officers from engaging in unconstitutional procedures. The Court explicitly rejected the remedies considered and allowed review in Wolf, and further reasoned that the exclusionary rule was an essential component of Fourth Amendment rights and the only effective way to protect such Fourth Amendment interests was by removing the desire to ignore it.
In United States v. Leon, the Court jettisoned the judicial integrity rationale, and established the deterrence of police officers as the sole rationale for the exclusionary rule. The Court focused the deterrence only on police officers, and not judicial officers, which could result in a broader application of the exclusionary rule than to good cops only.
In Leon, the Court also carved out the good faith exception to the exclusionary rule, which underscored the Court's focus on deterrence and, thus, further exposed the good cop paradigm. The good faith exception to the exclusionary rule allows unconstitutionally seized evidence to be admitted into a criminal trial when the police officers have reasonably relied on an informed warrant issued by a detached and neutral magistrate. This reasonable reliance is construed as “good faith,” and disallows the application of the exclusionary rule, even though Fourth Amendment standards have been violated.
The Court's conscious rejection in Mapp of the alternative remedies discussed and approved in Wolf evinces the Court's subscription to the good cop myth. These remedies would have addressed both good and bad cops had the Court adopted them and required their enforcement. For example, the remedies of internal police review, self-help against unauthorized police action, and various civil remedies including actions against magistrates for issuing unsupported or otherwise unconstitutional warrants, would have effected broader deterrence. These remedies might deter the cop who does not care that his activities may result in a criminal conviction against the person whose privacy may have been intruded. Several of these remedies impose penalties on officers prior to or in the absence of criminal proceedings. In the case of self-help, the remedy can be immediate and prevent the Fourth Amendment injury entirely. Indeed, the remedies which focus on magistrates avoid a focus on cops altogether whether they be bad or good. Especially, in light of the good faith exception to the exclusionary rule, the scope of these remedies clearly appears broader than exclusion.
The failure of the Court to adopt any of these alternative remedies suggests either that the Court did not contemplate cops not being motivated by law enforcement interests or that the Court believed that bad cops comprised only a small insignificant minority of cops. The consistency in the Court's examination of a cop's subjective mental state in Leon further reveals the good cop paradigm. The Court in Leon allows the goodness (or reasonableness) of cops to be the basis for denying a defendant the sole practical remedy for a Fourth Amendment violation buy in the main the Court does not tease out a cop's lack of sincere & pure motivations for requiring an exception to the Court's rule adopting exclusion. Given the Court's capacity to discern and give legal significance, to an officer's particular subjective intentions. When their admirable, good faith, the Court's failure to tease out and give legal significance to cops' bad subjective state, in most instances involving a “Fourth Amendment violation by requiring something more than exclusion evidences not a lack of ability to do in the Court's part to identify and address the bad cop but a lack of desire to do so. Moreover, the Court's adoption of a good faith exception in Leon further suggests that the Court failed to consider the bad cop. The good faith exception demonstrates that the Court is not seriously interested in exploring whether a cop has bad motives. If the cop has relied on a validly issued search warrant, the officer is not subject to any deterrent or other punitive action despite his possible bad motives. Thus, if an officer has conducted a search merely to harass or indulge a vendetta, the defendant has no remedy if the officer was able to provide more than a “bare bones affidavit” that persuades a magistrate to find probable cause and to issue a warrant. Thus, the exclusionary rule cases demonstrate the Court's focus on good as well as a refusal to face the bad cop.
