Amdt4.5.2.3 Good Faith Exception

Fourth Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Another significant curtailment of the exclusionary rule involves the attenuation exception, which permits the use of evidence discovered through the government’s unconstitutional conduct if the causal link between that misconduct and the discovery of the evidence is seen by the reviewing courts as sufficiently remote or has been interrupted by some intervening circumstances.1 In a series of decisions issued over several decades, the Court has invoked this exception in upholding the admission of challenged evidence. For example, in Wong Sun v. United States, the Court upheld the admission of an unsigned statement made by a defendant who initially had been unlawfully arrested because, thereafter, the defendant was lawfully arraigned, released on his own recognizance, and, only then, voluntarily returned several days later to make the unsigned statement.2 Similarly, in its 1984 decision in Segura v. United States, the Court upheld the admission of evidence obtained following an illegal entry into a residence because the evidence was seized the next day pursuant to a valid search warrant that had been issued based on information obtained by law enforcement before the illegal entry.3

More recently, in its 2016 decision in Utah v. Strieff, the Court rejected a challenge to the admission of certain evidence obtained as the result of an unlawful stop on the grounds that the discovery of an arrest warrant after the stop attenuated the connection between the unlawful stop and the evidence seized incident to the defendant’s arrest.4 As a threshold matter, the Court rejected the state court’s view that the attenuation exception applies only in cases involving an independent act of a defendant’s 'free will.'5 Instead, the Court relied on three factors it had set forth in a Fifth Amendment case, Brown v. Illinois,6 to determine whether the subsequent lawful acquisition of evidence was sufficiently attenuated from the initial misconduct: (1) the temporal proximity between the two acts; (2) the presences of intervening circumstances; and (3) the purpose and flagrancy of the official misconduct.7 On the whole, the Strieff Court, reiterating that suppression of evidence should be the courts’ last resort, not our first impulse,8 concluded that the circumstances of the case weighed in favor of the admission of the challenged evidence. While the closeness in time between the initial stop and the search was seen by the Court as favoring suppression,9 the presence of intervening circumstances in the form of a valid warrant for the defendant’s arrest strongly favored the state,10 and in the Court’s view, there was no indication that this unlawful stop was part of any systematic or recurrent police misconduct.11 In particular, the Court, relying on the second factor, emphasized that the discovery of a warrant broke the causal chain between the unlawful stop and the discovery of the challenged evidence.12 As such, the Strieff Court appeared to establish a rule that the existence of a valid warrant, predat[ing the] investigation and entirely unconnected with the stop, generally favors finding sufficient attenuation between the unlawful conduct and the discovery of evidence.13


  1.  Jump to essay-1Utah v. Strieff, 136 S. Ct. 2056, 2061 (2016).
  2.  Jump to essay-2371 U.S. 471, 491 (1963).
  3.  Jump to essay-3468 U.S. 796, 813–16 (1984).
  4.  Jump to essay-4Strieff, 136 S. Ct. at 2059. The state in Strieff had conceded that law enforcement lacked reasonable suspicion for the stop, id. at 2060, and the Supreme Court characterized the search of the defendant following his arrest as a lawful search incident to arrest, id. at 2063.
  5.  Jump to essay-5Id. at 2061 (quoting State v. Strieff, 457 P.3d 532, 544 (Utah 2015)).
  6.  Jump to essay-6See 422 U.S. 590, 603–04 (1975) (holding that the state supreme court in this case had erroneously concluded that Miranda warnings always served to purge the taint of an illegal arrest).
  7.  Jump to essay-7See Strieff, 136 S. Ct. at 2062–64.
  8.  Jump to essay-8Id. at 2061 (quoting Hudson v. Michigan, 547 U.S. 586, 591 (2006) (internal quotations omitted)).
  9.  Jump to essay-9Id. at 2062 (noting that only minutes passed between the unlawful stop and the discovery of the challenged evidence).
  10.  Jump to essay-10Id. at 2062–63. The Strieff Court emphasized that it viewed the warrant as compelling the officer to arrest the suspect. Id. at 2063; see also id. at 2062 (similar).
  11.  Jump to essay-11Id. at 2063.
  12.  Jump to essay-12Id. at 2063.
  13.  Jump to essay-13Id. at 2062.