Page 36 - TPA Journal March April 2025

case en banc. rule adds another component. As a judicially cre-
Riley v. California, one of the recent Supreme ated remedy rather than a constitutional require-
Court cases applying the Fourth Amendment to ment, the exclusionary rule is justified by the
modern technology, held that the search of a cell- deterrent effect of suppressing evidence when it
phone incident to arrest requires a warrant. was obtained unlawfully. A key consideration in
Morton and supporting amici view this case as a deciding when suppression will deter is whether
follow-on that allows us to flesh out when proba- “law enforcement officers have acted in objective
ble cause exists to believe that certain applications good faith.” The need to punish police conduct
on a cellphone contain incriminating evidence. and thus deter future violations via suppression
They argue that Riley’s warrant requirement will “assumes that the police have engaged in willful,
be a mere formality if officers can search an entire or at the very least negligent, conduct.” The
phone based on nothing more than the fact that exclusionary rule is not aimed at “punish[ing] the
criminals sometimes use phones to conduct their errors of judges and magistrates” who issue war-
illicit activity. Despite the invitation to treat this as rants.
another difficult case addressing how “the degree Deference to the judge issuing the warrant and the
of privacy secured to citizens by the Fourth exclusionary rule’s focus on deterring police mis-
Amendment” is affected “by the advance of mod- conduct results in the good-faith exception to the
ern technology,” a longstanding rule resolves the suppression remedy: A “‘warrant issued by a mag-
case: Evidence should not be suppressed when istrate normally suffices to establish’ that a law
law enforcement obtained it in good-faith reliance enforcement officer has ‘acted in good faith
on a warrant. in conducting a search.’”
The good-faith rule flows from two central fea- Normally, but not always. The Supreme Court
tures of modern Fourth Amendment jurispru- identified four situations when “a reasonably well
dence: the warrant requirement and the suppres- trained officer would have known that the search
sion remedy. The Supreme Court has held that a was illegal despite the magistrate’s authorization.”
warrant is generally required for certain searches, Reliance on a warrant is unreasonable when: 1)
most notably searches of the home and most the magistrate issued it based
recently searches of cellphones incident to arrest. on information the affiant knew was false or
Behind the warrant requirement is the idea that the should have known was false but for reckless dis-
“inferences which reasonable men draw from evi- regard of the truth; 2) the magistrate wholly aban-
dence” to decide if probable cause exists should doned the judicial role; 3) the warrant is based on
“be drawn by a neutral and detached magistrate an affidavit so lacking in probable cause as to ren-
instead of being judged by the officer engaged in der belief in its existence unreasonable; and 4) the
the often competitive enterprise of ferreting out warrant is facially deficient in particularizing the
crime.” Although obtaining a warrant from that place to be searched or things to be seized.
neutral judge may burden law enforcement before Morton principally tries to defeat good faith by
it conducts the search, the police obtain a invoking the third exception, which involves what
benefit after the search. When a court reviews an are commonly known as “bare bones” affidavits.
after-the-fact challenge to the search, “the resolu- “‘Bare bones’ affidavits contain wholly concluso-
tion of doubtful or marginal cases . . . should be ry statements, which lack the facts and circum-
largely determined by the preference to be accord- stances from which a magistrate can independent-
ed to warrants.” As a result, “[s]earches pursuant ly determine probable cause.”
to a warrant will rarely require any deep inquiry A look at some bare-bones affidavits from
into reasonableness.” Supreme Court cases shows just how bare they
To this unwillingness to second guess the magis- are. One affidavit, from the Prohibition Era, said
trate who authorized the warrant, the exclusionary nothing more than that the agent “has cause to sus-

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