PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and
Kelsey, JJ., and Koontz, S.J.
ARTHUR KELSEY JUSTICE
REMAND FROM THE SUPREME COURT OF THE UNITED STATES
case returns to us on remand from the United States Supreme
Court. It involves an unsuccessful motion to suppress filed
in the trial court by Ryan Austin Collins. Convicted of
receipt of stolen property, Collins appealed to the Court of
Appeals, claiming that the trial court should have excluded
evidence obtained by police during a warrantless search of a
motorcycle parked on a private residential driveway. The
Court of Appeals affirmed the conviction, holding that
exigent circumstances justified the search. See Collins
v. Commonwealth, 65 Va.App. 37, 46-48 (2015). On further
appeal to us, we affirmed on a different ground, holding that
the automobile exception justified the warrantless search.
See Collins v. Commonwealth, 292 Va. 486, 488, 506
certiorari review, the United States Supreme Court reversed
our decision and held: "This case presents the question
whether the automobile exception to the Fourth Amendment
permits a police officer, uninvited and without a warrant, to
enter the curtilage of a home in order to search a vehicle
parked therein. It does not." Collins v.
Virginia, 138 S.Ct. 1663, 1668 (2018). The Court limited
its holding to the interplay between the automobile exception
and the curtilage doctrine. "We leave for resolution on
remand," the Court stated, "whether Officer
Rhodes' warrantless intrusion on the curtilage of
Collins' house may have been reasonable on a different
basis, such as the exigent circumstances exception to the
warrant requirement." Id. at 1675. On remand,
the Commonwealth argues that two independent grounds support
the trial court's decision to deny Collins's motion
to suppress: the exigent circumstances exception to the
warrant requirement and the good faith exception to the
factual background of this case has been fully addressed in
the previous opinions and we therefore need not repeat that
background here. In our opinion, the exclusionary rule does
not apply in this case even if no exigent circumstances
existed because, at the time of the search, a reasonably
well-trained officer would not have known that the search of
the motorcycle, located a few feet across the curtilage
boundary of a private driveway, was
begin with a settled but often overlooked premise. Standing
alone, "[t]he fact that a Fourth Amendment violation
occurred - i.e., that a search or arrest was unreasonable -
does not necessarily mean that the exclusionary rule
applies." Herring v. United States, 555 U.S.
135, 140 (2009). The Fourth Amendment prohibits unreasonable
searches and seizures but "says nothing about
suppressing evidence obtained in violation of this
command." Davis v. United States, 564 U.S. 229,
236 (2011). This textual silence has a simple explanation.
the only remedies for unconstitutional searches and seizures
were 'tort suits' and 'self-help.'"
Collins, 138 S.Ct at 1676 (Thomas, J, concurring)
(quoting Utah v. Strieff, 136 S.Ct. 2056, 2061
(2016)). At the time of the Founding, "[t]he
exclusionary rule - the practice of deterring illegal
searches and seizures by suppressing evidence at criminal
trials - did not exist. No such rule existed in 'Roman
Law, Napoleonic Law or even the Common Law of
England.'" Id. (quoting Warren E. Burger,
Who Will Watch the Watchman?, 14 Am. Univ. L. Rev.
1, 1 (1964)). "The Founders would not have understood
the logic of the exclusionary rule either. Historically, if
evidence was relevant and reliable, its admissibility did not
'depend upon the lawfulness or unlawfulness of the mode,
by which it [was] obtained.'" Id.
(alteration in original) (quoting United States v. The La
Jeune Eugenie, 26 F. Cas. 832, 843 (C.C.D. Mass. 1822)
(No. 15, 551) (Story, J.)).
the absence of any historical basis for the exclusionary
rule, the United States Supreme Court has rejected its own
earlier "[e]xpansive dicta" that had
"suggested that the rule was a self-executing mandate
implicit in the Fourth Amendment itself."
Davis, 564 U.S. at 237 (citation omitted). It is
not. Instead, the United States Supreme Court has
"acknowledge[d] the exclusionary rule for what it
undoubtedly is - a 'judicially created remedy' of
[that] Court's own making," id. at 238
(citation omitted), and not "a personal constitutional
right," Stone v. Powell, 428 U.S. 465, 486
exclusionary rule does not serve to "redress,"
Davis, 564 U.S. at 236 (citation omitted), or to
"repair," Elkins v. United States, 364
U.S. 206, 217 (1960), any specific violation under review.
The exclusionary rule is a self-limiting,
"prudential" doctrine whose "sole purpose . .
. is to deter future Fourth Amendment violations,"
Davis, 564 U.S. at 236-37, rather than to serve as a
"reparation or compensatory dispensation to the injured
criminal," United States v. Janis, 428
U.S. 433, 454 n.29 (1976) (citation omitted). "Where
suppression fails to yield 'appreciable deterrence,'
exclusion is 'clearly unwarranted.'"
Davis, 564 U.S. at 237 (alteration and citation
appreciable deterrence, standing alone, cannot justify the
application of the exclusionary rule. As the United States
Supreme Court emphasized in Davis,
Real deterrent value is a "necessary condition for
exclusion," but it is not "a sufficient" one.
The analysis must also account for the "substantial
social costs" generated by the rule. Exclusion exacts a
heavy toll on both the judicial system and society at large.
It almost always requires courts to ignore reliable,
trustworthy evidence bearing on guilt or innocence. And its
bottom-line effect, in many cases, is to suppress the truth
and set the criminal loose in the community without
punishment. Our cases hold that society must swallow this
bitter pill when necessary, but only as a "last
resort." For exclusion to be appropriate, the deterrence
benefits of suppression must outweigh its heavy costs.
Id. (citations omitted).
"heavy costs" of suppressing the truth,
id., should always be a court's "last
resort, not [its] first impulse," Hudson v.
Michigan, 547 U.S. 586, 591 (2006). "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." Herring, 555 U.S.
at 144. This deliberateness requirement focuses "the
inquiry on the 'flagrancy of the police misconduct'
at issue." Davis, 564 U.S. at 238 (citation
omitted). The rule thus seeks "to deter deliberate,
reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence."
Herring, 555 U.S. at 144. Only in such circumstances
can the violation be deemed "patently
unconstitutional" or be characterized as "flagrant
conduct," id. at 143-44, thereby justifying
determining whether to apply the exclusionary rule,
"[t]he pertinent analysis of deterrence and culpability
is objective" and "'is confined to the
objectively ascertainable question whether a reasonably well
trained officer would have known that the search was
illegal' in light of 'all of the
circumstances.'" Id. at 145 (citation
omitted). "These circumstances frequently include a
particular officer's knowledge and experience, but that
does not make the test any more subjective than the one for
probable cause, which looks to an officer's knowledge and
experience, but not his subjective intent." Id.
at 145-46 (citations omitted).
courts disagree regarding the scope of the good faith
exception. Some apply it only when binding appellate
precedent had specifically authorized a search or seizure
that a later case subsequently deemed unconstitutional.
See, e.g., United States v. Martin, 712
F.3d 1080, 1081-82 (7th Cir. 2013) (per curiam). These courts
abjure any reliance upon an officer's objective, good
faith belief unless that belief was based upon binding
precedent specifically authorizing the particular
search or seizure at issue. To accommodate this limited view
of the good faith exception, these courts simply rename it as
the "Exception for 'Binding Appellate
Precedent.'" See, e.g., United States
v. Lara, 815 F.3d 605, 612 (9th Cir. 2016). In doing so,
these courts treat the most obvious application of
the good faith exception as an exclusive restatement
of the exception itself.
view of the good faith exception involves no rigorous
cost-benefit analysis as required by the United States
Supreme Court. Instead, the "Exception for 'Binding
Appellate Precedent, '" id., turns entirely
on what constitutes "binding" precedent - a fluid
question that could produce inconsistent answers. If a dozen
federal circuit courts of appeal have uniformly ruled in
favor of the contemplated search while the specific circuit
in which an officer conducts the same kind of search has not
so ruled, the good faith exception would not apply if, in a
later case of first impression, a court in the officer's
jurisdiction or the United States Supreme Court invalidated
the type of search at issue. Consider also the situation in
which a state's highest court has ruled on an issue in
conflict with existing precedent from its corresponding
federal circuit court of appeal. Which ruling, state or
federal, would be "binding" precedent for purposes
of applying the good faith exception in state courts? See
generally Bryan A. Garner et al., The Law of Judicial
Precedent 691 (2016) ("[L]ower federal courts don't
have appellate jurisdiction over state courts. Hence their
decisions aren't binding on the state courts, which have
an independent duty to decide questions of federal law as
presented." (footnote omitted)).
Breyer, even while opposing the exception, has persuasively
explained why the binding-precedent version of it necessarily
draws artificial distinctions. In his dissent in
Davis, joined by Justice Ginsburg, he explained that
an officer who conducts a search that he believes complies
with the Constitution but which, it ultimately turns out,
falls just outside the Fourth Amendment's bounds is no
more culpable than an officer who follows erroneous
"binding precedent." Nor is an officer more
culpable where circuit precedent is simply suggestive rather
than "binding," where it only describes how to
treat roughly analogous instances, or where it just does not
Davis, 564 U.S. at 258 (Breyer, J., dissenting).
"Thus, if the Court means what it now says,"
Justice Breyer concluded, then "it would place
determinative weight upon the culpability of an individual
officer's conduct, and . . . would apply the exclusionary
rule only where a Fourth Amendment violation was
'deliberate, reckless, or grossly negligent, '"
a conclusion that Justice Breyer thought would allow
"the 'good faith' exception" to
"swallow the exclusionary rule." Id.
lower courts, however, believe that the United States Supreme
Court did mean what it said in Davis and that, by
saying it so clearly, intended to reinforce the traditional
understanding of the exclusionary rule. Hewing closely to
Davis and Herring, these courts hold that
the exclusionary rule has always "place[d] determinative
weight upon the culpability of an individual officer's
conduct," id., and that the rule has no
applicability unless such culpable conduct can be deterred by
excluding highly probative evidence. This view focuses
"the inquiry on the 'flagrancy of the police
misconduct' at issue" and recognizes that "when
the police act with an objectively 'reasonable good faith
belief' that their conduct is lawful, or when their
conduct involves only simple, 'isolated' negligence,
the 'deterrence rationale loses much of its force,'
and exclusion cannot 'pay its way.'"
Id. at 238 (majority opinion) (citations omitted).
these courts, the Third Circuit, expressly rejected the
binding-precedent narrowing of the good faith exception and
held that courts must answer the deterrence question in every
case, not just in those preceded by binding precedent:
To exclude evidence simply because law enforcement fell short
of relying on binding appellate precedent would impermissibly
exceed the Supreme Court's mandate that suppression
should occur in only "unusual" circumstances: when
it "further[s] the purposes of the exclusionary
rule." . . . We must conduct the same analysis on the
facts before us, even in the absence of binding appellate
United States v. Katzin, 769 F.3d 163, 177-79 (3d
Cir. 2014) (en banc) (first alteration in original) (citation
omitted). The Fourth Circuit, at least in dicta, seems to
We have serious doubts about [appellant's] narrow view of
the good-faith inquiry. Nothing in Davis itself
supports such an interpretation. Instead, Davis
merely establishes the inapplicability of the exclusionary
rule in one specific circumstance. Davis does not,
however, alter the general good-faith inquiry which, we
reiterate, requires consideration of whether a reasonably
well-trained officer would have known that a search was
illegal in light of all of the circumstances.
United States v. Stephens, 764 F.3d 327, 337 (4th
Cir. 2014) (citation omitted).
similarly take at face value the United States Supreme
Court's clearly articulated standard for determining
whether the good faith exception applies to a given case:
"The pertinent analysis of deterrence and culpability is
objective" and "'is confined to the objectively
ascertainable question whether a reasonably well trained
officer would have known that the search was illegal' in
light of 'all of the circumstances.'"
Herring, 555 U.S. at 145 (citation omitted). Under
this standard, the inquiry must be focused on the
"'flagrancy of the police misconduct' at
issue," Davis, 564 U.S. at 238 (citation
omitted), and employ the "last resort" remedy of
exclusion only when necessary "to deter deliberate,
reckless, or grossly negligent conduct, or in some
circumstances recurring or systemic negligence,"
Herring, 555 U.S. at 140, 144 (citation omitted).
case, the good faith inquiry raises two initial questions:
What was the state of the law governing Officer Rhodes's
search at the time that he conducted it, and what factual
circumstances provided either clarity or ambiguity to Officer
Rhodes in his presumed reliance upon that law? The issue,
however, is not whether the automobile exception is
categorically inapplicable to a portion of a private driveway
within the curtilage absent some other legal basis for the
police being there. The United States Supreme Court
conclusively settled that issue in this case. Instead, we
examine the state of the law at the time of the search and
ask only the "'objectively ascertainable question
whether a reasonably well trained officer would have known
that the search was illegal' in light of 'all of the
circumstances.'" Herring, 555 U.S. at 145
(citation omitted). For several reasons, we believe the
answer to that question is "no."
time that Officer Rhodes searched the motorcycle, no binding
precedent had held that the automobile exception was
inapplicable to a vehicle parked in a private driveway
located close enough to a home to be considered within the
curtilage. This absence of direct precedent, by itself, does
not sideline the exclusionary rule. But what does, we
believe, is Scher v. United States, 305 U.S. 251
(1938), and the subsequent line of cases that applied the
automobile exception to driveways without considering
whether, and if so exactly where, the curtilage boundary
might intersect with the driveway and thus put the automobile
exception off limits.
Scher, federal law enforcement officers conducted a
warrantless search of a vehicle while it was parked in a
detached "garage" that was "within the
curtilage" of a residence. Id. at 253. The
driver, after being arrested based upon contraband found
during the search of the vehicle, moved to suppress the
evidence. The trial court denied the motion. The defendant
appealed to the Court of Appeals for the Sixth Circuit.
Affirming the trial court, the Sixth Circuit acknowledged
that the vehicle had been parked in a garage within the
curtilage but nonetheless held that "[t]he garage was
not searched." Scher v. United States, 95 F.2d
64, 65 (6th Cir. 1938) (per curiam). Relying in part on
Carroll v. United States, 267 U.S. 132 (1925), the
case that first recognized the automobile exception, the
Sixth Circuit found that sufficient probable cause had
existed for the search of the vehicle and thus that
"[t]here was no unlawful search and seizure."
Scher, 95 F.2d at 65.
appeal to the United States Supreme Court, the defendant
focused his argument on the assertion that "the garage
in which the automobile was located and where the search was
made, was within the curtilage of the
petitioner-appellant's home and therefore within the
protection of the Constitutional guarantees against
unreasonable search and seizure." Appellant's Br. at
8, Scher, 305 U.S. 251 (No. 49). "[T]he record
clearly shows," he insisted, "that the garage of
the petitioner-appellant was located within the curtilage of
the petitioner's home and residence; [and] that the
automobile at the time of the search was at rest and in said
garage." Id. at 7. On brief, the defendant
contested the proposition that the automobile exception
applies when a vehicle is parked within the curtilage of a
The [Sixth Circuit] in its opinion states the garage was not
searched. We respectfully submit that such a statement is
fallacious in view of the facts in this case. . . . While the
automobile was the object that was searched, the search
without a doubt was made in the garage of the
defendant, and therefore was a search of the garage
itself. . . . The [Sixth Circuit's] position that
the garage was not searched is clearly erroneous. We,
therefore, contend that the garage, which was searched by the
officers without a search warrant, was part of the curtilage
of the defendant's private dwelling, and, therefore, the
search made was that of a private dwelling.
Id. at 25-26 (emphases in original).
response, the Solicitor General for the United States
defended the Sixth Circuit's application of the
automobile exception, asserting that it was "well
established that the prohibition against search of a dwelling
without a warrant does not include searches of vehicles made
upon probable cause." Appellee's Br. at 16,
Scher, 305 U.S. 251 (No. 49) (relying on
Carroll, among other cases). That the vehicle had
been parked in the garage was irrelevant, the Solicitor
General argued. "No part of the garage or the
petitioner's home was searched." Id. at 24.
The vehicle was the "only thing searched."
Id. Because the officers had probable cause to
search the vehicle, "they were justified in making the
search." Id. at 17.
the issue so framed, the United States Supreme Court held
that the automobile exception had followed the vehicle
into the curtilage:
Considering the [automobile-exception] doctrine of
Carroll . . . and the application of this to the
facts there disclosed, it seems plain enough that just before
he entered the garage the following officers properly could
have stopped petitioner's car, made search and put him