Brooks’s Eve: A Hasty Part 3

Word is, the Brooks decision will be released tomorrow at 10 a.m.   Though my comments here may look completely cuckoo in just a few hours, the Court’s treatment of good faith at the Brooks arguments was sufficiently provocative that I want to say just a bit about it.

Did you happen to catch this article by the New York Times’s Adam Liptak a couple of weeks ago?  SCOTUS has a “hot bench,” i.e., one that asks a lot of questions.  The justices quoted in the story explained that their questions are intended more for each other than for the lawyers.  Justice Kagan said that oral argument is about “the justices talking to each other with some helpless person standing at the podium who you’re talking through.”  [SCOTUS apparently also keeps a “humor index.”  Justice Kagan reported that Justice Scalia has “lapped [the rest of] us 10 times.”]

The Minnesota Supreme Court is a much more polite host than SCOTUS.  When, however, the Brooks arguments reached the good faith issue, some of the exchanges between the justices reduced the normally-assured Sheridan to the role of ventriloquist’s dummy.

At issue is whether the Minnesota Supreme Court should adopt some variety of the Leon good faith exception to the exclusionary rule.  To date, our Court has refrained from applying Leon, relying on article I, § 10 of the Minnesota Constitution.  The caselaw fails to offer a rule or even a rationale in support of Leon’s rejection.  It is, rather, an accretion of not-gonnas:  don’t want to address, much less adopt, here; need not, here and here; don’t have to because good faith wouldn’t cure anyway, here.  If there was an Illustrated Guide to the Minnesota Supreme Court’s Good Faith Declination Doctrine, it would look like this →Hear-No-Evil-See-No-Evil-Speak-No-Evil-300x225

The most extensive discussion of the good faith exception by our Court appears in Justice Barry Anderson’s dissenting opinion in State v. Jackson from 2007.  Joined by then-Associate Justice Gildea, Justice Anderson made clear that he would recognize an exception, and that the exclusionary rule ought to be applied “only where its deterrence benefits outweigh its substantial social costs.”

At the Brooks arguments, Justice Stras brought up Davis v. U.S., in which SCOTUS extended good faith to the situation in which the police conduct a search in compliance with precedent that is later overruled.  Justice Stras proposed that the Minnesota Supreme Court could adopt the Davis exception without embracing all of Leon, but for one problem:  Sheridan had omitted to argue article I, § 10 in his brief.  Absent the article I, § 10 argument, Justice Stras asked, isn’t this “purely a Fourth Amendment case — so there’s at least a colorable argument that we are bound by Leon and Davis in this context and we may in fact adopt a different rule when someone alleges an article I, § 10 claim?”

Justice Lillehaug interjected: Counsel, I would not want you to too hastily give up your state constitutional argument.  We took a look at the motions that were made in the trial court, and in at least two of the cases, it looks like Mr. Brooks’s then-attorney did make an argument under both the Fourth Amendment and its Minnesota counterpart.

Chief Justice Gildea’s question-in-reply:  In your arguments to this Court, you did not articulate that your client’s rights under article I, § 10 are greater than your client’s rights under the Fourth Amendment.

Sheridan:  That is not in the brief.  You are correct.

Then it was Assistant Scott County Attorney Zettler’s turn at the podium.

Justice Lillehaug:  Regarding article I, § 10, do you understand the state constitutional right to be before this Court?

Zettler:  In my view, it was not raised in the briefs.

Justice Lillehaug:  Do you know if Mr. Brooks’s motion below was based on both the federal and state constitutions?

Chief Justice Gildea:  I thought the argument below in the trial court — article I, § 10 was cited but there wasn’t any argument based on article I, § 10 — even below it was based on the Fourth Amendment.

Zettler:  Yes.

Chief Justice Gildea:  Before Mr. Sheridan standing here today, no court has been asked to extend broader protection than Mr. Brooks would be entitled to under the Fourth Amendment.

Zettler:  That’s right.

No case that has come before the Court seeking recognition for a good faith exception has been as compelling as this one.  Justice Wright is not participating in Brooks, so the composition of the Court is six.  Given the justices’ comments at the oral argument and their decisions in past cases, I would be surprised if more than one of the six continued to support a policy of abstention vis-a-vis the good faith exception.  If Mr. Brooks’s article I, § 10 claim has been preserved, the Court could adopt a limited and well-defined version of a good faith rule, a Davis rule for reliance on overturned precedent.  But from Chief Justice Gildea’s repeated challenges to the sufficiency of the preservation, I think we may infer that there is support on the Court for the importation of SCOTUS’s entire good faith canon, which is increasingly hostile to the exclusionary rule.  As it is modernly formulated, the exclusionary rule is less a rule than a utilitarian cost-benefit equation.  Per Herring v. U.S.:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.

It is hard to overestimate how dramatic the effect on state court criminal practice would be were this case-by-case, cost-benefit suppression formula adopted as the law in Minnesota.

You would think that if the Court reaches good faith in its opinion tomorrow, Brooks must needs have first won on SIA and consent.  But you might be wrong.  “I’m buoyed,” Sheridan declared, when the Court asked him about good faith during his rebuttal, “because to arrive at good faith would mean that I prevailed on all the other issues.”

Not so fast.  “Well, counsel,” said Chief Justice Gildea, “it could be a short circuit way of not having to answer any of those other questions.  We could, for example, assume without deciding here but say the evidence shouldn’t be suppressed because of Davis.  So, you know, I don’t want to pop your balloon but — ”

Sheridan:  “It’s too late . . . “

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