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Collins v. Commonwealth

Supreme Court of Virginia

March 28, 2019

RYAN AUSTIN COLLINS
v.
COMMONWEALTH OF VIRGINIA

          PRESENT: Lemons, C.J., Goodwyn, Mims, McClanahan, Powell, and Kelsey, JJ., and Koontz, S.J.

          OPINION

          D. ARTHUR KELSEY JUSTICE

         UPON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

         This 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 (2016).

         On 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 exclusionary rule.

         I.

         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 unconstitutional.[1]

         A.

         We 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.

         "Historically, 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)).[2] 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.)).[3]

         B.

         Recognizing 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 (1976).

         The 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 omitted).

         Even 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).

         The "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 exclusion.

         C.

         When 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).

         Lower 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.

         This 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)).[4]

         Justice 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 exist.

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.

         Some 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.[5] 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).

         One of 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 precedent.

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 agree:

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).[6]

         We 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).

         D.

         In this 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."

         1.

         At the 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.

         In 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.

         On 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 home:

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).[7]

         In 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.

         With 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 ...

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