The Fourth Amendment: Swiss Cheese and Cannonballs

In December, the Sixth Circuit ruled in United States v. McClain, 430 F.3d 299 (6th Cir. 2005) that under the facts of that particular case, the Leon good faith exception to the warrant requirement should apply to a warrant obtained with evidence arising from a police search of a residence even though the initial police search violated the Fourth Amendment.

Last Friday, the Sixth Circuit issued an order denying the defendants’ request for rehearing or rehearing en banc. In a spirited, well-reasoned 18 page dissent that traces the history of the good-faith exception, Judge Martin (joined by Judges Moore, Cole, and Clay) argued that the McClain panel opinion should be overturned because it misinterprets and over-extends the good-faith exception to the exclusionary rule. In Judge Martin’s words, "Because the Fourth Amendment already has more holes in it than a piece of Swiss cheese and the panel’s decision adds another errantly-fired cannon-ball sized hole, I dissent from the Court’s decision denying rehearing en banc."

As Judge Martin’s dissent points out, the McClain decision appears to be in conflict with Sixth Circuit precedent, particularly United States v. Davis, 430 F.3d 345 (6th Cir. 2005) (published ten days prior to McClain). In Davis, police obtained a warrant using information from an unlawfully extended traffic stop. The Court found that after removing the unlawfully obtained information from the affidavit in support of the warrant, no probable cause existed, and the warrant therefore did not cure the initial illegal seizure. In footnote 4, the Court stated that "we agree with the numerous other circuits that have held that the Leon good-faith exception is inapplicable where a warrant was secured in part on the basis of an illegal search or seizure." (Citations omitted).

To minimize the damage wrought by McClain, criminal defense practitioners should continue to cite and reply upon Davis, which is still good law and was not addressed at all in McClain. Further, the McClain panel itself noted that it is was presented with "unique circumstances," 430 F.3d at 306, and practitioners should argue that McClain is limited to the precise factual scenario of that case.

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