The day the Fourth Amendment Died

As Don McLean might say: "But february made me shiver With every paper I’d deliver.Bad news on the doorstep; I couldn’t take one more step. I can’t remember if I cried When I read about the decision inside, But something touched me deep inside The day the Fourth Amendment died."

In a published decision issued todayhttp://www.ca6.uscourts.gov/opinions.pdf/10a0276p-06.pdf, the Sixth Circuit provided two important rulings in its Fourth Amendment jurisprudence. First, the Court determined that where a state court lacked jurisdiction, under state law, to issue a warrant, the warrant violates the Fourth Amendment. The magistrate in this case had issued a warrant for property located in one county, but the magistrate was from another county. Under Tennessee law, the magistrate only had jurisdiction in his sitting county. The Court therefore ruled "In this case, Judge Faris’ authority to issue warrants stems exclusively from Tennessee law, but that same source of law provides that Judge Faris had no authority to issue a warrant for a search of Defendant’s home. The search therefore violated Defendant’s Fourth Amendment rights."

Unfortunately, the Court then determined that, even though there was a clear Fourth Amendment violation, there might not be a remedy. The Court, citing newer Supreme Court precedent, found that it needed to re-examine its good faith exception jurisprudence. The Court noted that, post Herring v. United States, 129 S.Ct. 695 (2009), the Court could not longer find that a presumption of suppression, based upon a Fourth Amendment violation, applied. Rather, a court must now balance the factors of (1) the benefits of deterrence against (2) the cost of excluding the evidence. The Court therefore remanded for the district court to consider this balancing test, but noted that "Arguably, the issuing magistrate’s lack of authority has no impact on police misconduct, if the officers mistakenly, but inadvertently, presented the warrant to an
incorrect magistrate."

The case thus presents a serious limitation on Fourth Amendment protections. In addition (and exclusive of) showing a Fourth Amendment violation, the defense must bear the burden of proving how the deterrent effect of suppressing the evidence would outweigh the cost of its exclusion in a particular case. Of course, the cost is presumably always going to be high; otherwise, why would exclusion be sought? Therefore, this case seems to present a significant hurdle for a successful Fourth Amendment challenge.