UNITED STATES, APPELLANT, v. DAMAIRZIO M. WELLS, APPELLEE.
No. 24-CO-0162
DISTRICT OF COLUMBIA COURT OF APPEALS
Decided August 28, 2025
Argued June 6, 2024
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney at the time, and Chrisellen R. Kolb, John P. Mannarino, D. William Lawrence, and Megan E. McFadden, Assistant United States Attorneys, were on the brief, for appellant.
Paul Maneri, Public Defender Service, with whom Samia Fam, Public Defender Service, was on the brief, for appellee.
Opinion for the court by Associate Judge DEAHL.
Dissenting opinion by Associate Judge MCLEESE at page 41.
DEAHL, Associate Judge: This case presents an important question about the scope of the
Here are the core facts. The Court Services and Offender Supervision Agency, or CSOSA, supervises the District‘s convicts on supervised release. For two decades, CSOSA‘s regulations authorized its agents to impose extended GPS monitoring on its supervisees, and its officers have unilaterally imposed GPS monitoring on thousands of supervisees in that time, including on Damairzio Wells. Those searches routinely violated the
We agree with the trial court that suppression was warranted. The exclusionary rule is the principal judicial remedy for assuring compliance with the
CSOSA is no neutral decisionmaker, however. “CSOSA is a law enforcement agency.” In re W.M., 851 A.2d 431, 455 (D.C. 2004). Law enforcement agencies and their officers should palpably feel the deterrent effects that underpin the exclusionary rule in a way that judges and legislatures do not. The good faith exception thus has no application here, regardless of whether CSOSA in some sense reasonably believed its constitutional violations were permissible—in the face of doubt, it should have sought judicial authorization for its searches. The effects of the exclusionary rule are at their most salutary in deterring systemic constitutional violations like the ones we confront today. The exclusionary rule thus applies,
I. Factual and Procedural Background
Wells‘s GPS monitoring and arrest
Wells began a term of supervised release in January 2023, imposed as part of his sentence in an earlier Superior Court case. The Superior Court directed Wells to comply with periodic drug testing “at the discretion of CSOSA“—the agency that oversees the District‘s supervised releasees—as part of his release terms. But neither the Superior Court nor the United States Parole Commission, which is statutorily authorized to set terms of supervised release,
Despite lacking judicial or Parole Commission authorization, Wells‘s Community Supervision Officer, or CSO, twice required Wells to wear a GPS ankle monitor as an “administrative sanction” in the first several months of his supervision. The CSO claimed compliance with CSOSA‘s own internal regulations regarding administrative sanctions each time. See
In July 2023, Metropolitan Police Department officers investigated a report of an armed robbery. The victim claimed that a man with tattoos had robbed her at gunpoint and taken various items including her iPad, phones, purse, and wallet. One of the first things MPD officers did in response was to crosscheck the time and location of the reported robbery against a GPS database that CSOSA maintains of its supervisees on GPS monitoring, and which it shares with MPD in real time. Wells came back as a GPS “High Hit” based on CSOSA tracking data showing that he was in the locations identified by the victim at the relevant times. MPD officers used this data to track Wells down. A search of Wells and the surrounding area uncovered some of the victim‘s stolen property and Wells was arrested. After obtaining warrants, officers searched Wells‘s apartment and car, and they found a gun and ammunition. Wells was then indicted for armed robbery and firearm offenses.
Wells moved to suppress the GPS evidence and its fruits, arguing that under this court‘s recent opinion in Davis, CSOSA‘s warrantless GPS monitoring violated his
CSOSA‘s GPS monitoring program and previous challenges to it
Congress created CSOSA in 1997 through the National Capital Revitalization and Self-Government Improvement Act.
CSOSA nonetheless promulgated regulations allowing its officers to unilaterally impose “electronic monitoring” as an administrative sanction in 2001. Id. at 108;
Over the years that followed, CSOSA unilaterally subjected tens of thousands of individuals to GPS monitoring without judicial or Parole Commission authorization. In fiscal year 2023 alone—the year of Wells‘s underlying arrest— CSOSA tracked 1,958 people through GPS ankle monitors. See CSOSA, FY 2025 Budget Request: Summary Statement and Frequently Asked Questions at 25. It shared this location data with MPD pursuant to a longstanding information-sharing agreement designed to “aid in suspect apprehension.” Jackson, 214 A.3d at 476. That program withstood some distinct legal challenges to it over the years. Id. at 486-87 (GPS searches of probationers may be justified short of a warrant under the
In Davis, we held for the first time that “CSOSA‘s electronic monitoring regulation is not a reasonable regulation on which a special needs search may be based” because CSOSA had no statutory authority to implement that program, rendering it “unreasonable under the
The suppression proceedings and ruling
Wells moved to suppress the GPS evidence and the physical fruits of his arrest as having resulted from an unconstitutional GPS search in violation of Davis. The government opposed, arguing that Wells‘s CSO imposed GPS monitoring “in objectively reasonable reliance on existing CSOSA regulations and policy,” so that “application of the exclusionary rule is unwarranted.” The government furthered, quoting Krull, 480 U.S. at 349, that suppression under these circumstances “would have as little deterrent effect on the officer‘s actions as would the exclusion of evidence when an officer acts in objectively reasonable reliance on a warrant.” Wells countered in reply that “[n]either the Supreme Court, the D.C. Court of Appeals, nor any federal court of appeals has ever held that the good faith exception applies when a law enforcement agency like CSOSA violates the
The trial court agreed with Wells and granted the suppression motion. It reasoned that Davis made clear that CSOSA had unconstitutionally subjected Wells to GPS monitoring. As for the government‘s argument that the good faith exception to the exclusionary rule should nonetheless apply, the court did not “find that the facts here warrant” application of that exception.
The government now appeals.
II. Analysis
The government does not dispute on appeal that Wells‘s
A. The exclusionary rule and the good faith exception
The
Suppression is neither constitutionally mandated nor the inevitable result of a
This case concerns only the good faith exception, which applies where law enforcement officers’
Over the past four decades the Supreme Court has recognized several distinct situations where the good faith exception precludes suppression, consistent with the above principles. The Court first endorsed the good faith exception in a case where police officers reasonably relied on a judicial warrant that was later determined to be invalid. Leon, 468 U.S. at 922. It has since extended the exception to cases where officers reasonably relied on a statute, later declared unconstitutional, that authorized their search, Krull, 480 U.S. at 360; when they reasonably relied on errant computer records maintained by court employees that falsely indicated a suspect had an outstanding
The throughline in each of these seminal “good faith” cases is that the police reasonably relied on the judgment of roughly “neutral” third parties—judges, legislators, and court clerks. Those parties are “not adjuncts to the law enforcement team engaged in . . . ferreting out crime,” so that “they have no stake in the outcome of particular criminal prosecutions” and “[t]he threat of exclusion of evidence could not be expected to deter such individuals” in their actions. Evans, 514 U.S. at 15 (regarding “court employees” who failed to “inform police officials that a[n arrest] warrant had been quashed“); see also Leon, 468 U.S. at 917 (“Judges and magistrates are not adjuncts to the law enforcement team; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.“); Krull, 480 U.S. at 350-51 (“Although legislators are not ‘neutral judicial officers,’ as are judges and magistrates . . . neither are they ‘adjuncts to the law enforcement team.‘” (quoting Leon, 468 U.S. at 917)); (W.G.) Davis, 564 U.S. at 249 (“[T]he police in [t]his case reasonably relied on binding Circuit precedent . . . [and] scrupulously adhered to governing law.“). In each of these cases, (1) the police themselves were “blameless,” (W.G.) Davis, 564 U.S. at 249, (2) the culpable decisionmaker was roughly “neutral,” which is to say, they were neither law enforcement agents nor adjuncts to them, Evans, 514 U.S. at 11, 15, and (3) the exclusionary rule thus would not yield appreciable deterrent benefits sufficient to outweigh its social costs.
There is one good faith precedent that does not quite fit the above mold because police negligence was at the root of the
B. The good faith exception does not apply to a law enforcement agency‘s systemic misinterpretation of its legal authority to intrude on Fourth Amendment rights
To put the above in a nutshell, whether a
The unconstitutional GPS search at issue here fits within neither good faith mold, as we discuss in the first two points below. And there is no third and freestanding good faith category for “reasonable”
1. CSOSA is not a neutral decisionmaker insulated by the good faith exception
The government argues that the good faith exception applies here because (1) the CSO who imposed GPS monitoring simply followed CSOSA‘s regulations, and (2) CSOSA is not so motivated by law enforcement objectives that the exclusionary rule will act as a meaningful deterrent against it, at least not when its errors were not egregious. While Wells contests the first point, we accept for the sake of argument that CSOSA‘s regulations permitted its CSO to impose GPS monitoring on Wells.1 So the question becomes whether the exclusionary rule would adequately serve its deterrent purposes by disincentivizing CSOSA and similarly situated law enforcement agencies from implementing unconstitutional regulations and policies.
The government argues the exclusionary rule would not meaningfully serve that core function here. It stresses that the “most important[]” point to its invocation of the good faith exception is that CSOSA—like a judge, legislator, or court employee—“has no stake in the outcome of [any] particular criminal prosecution” so that the exclusionary rule will not meaningfully deter its non-deliberate
We are unpersuaded. What differentiates CSOSA from all of the third-party actors that the good faith exception has been applied to is that CSOSA, at its core, “is a law enforcement agency.” In re W.M., 851 A.2d at 455. This is not some vacuous label eliding CSOSA‘s general disinterest in criminal prosecutions, as the government suggests. CSOSA in very real and tangible ways has a hand-in-glove relationship with MPD, the District‘s central police force. CSOSA promotes how its CSOs “often work nights and weekends assisting D.C. MPD and other law enforcement partners in special crime initiatives,” CSOSA, Strategic Plan: Fiscal Years 2022-2026, at 22, and it champions its “vital role assisting with the combating of violent crime in the District of Columbia,” MPD Press Release, Operation Trident Targets Violent Offenders (Oct. 5, 2023) (quoting CSOSA Director Richard Tischner). It conducts thousands of home visits of supervisees each year, known as “accountability tours,” which are “conducted jointly” by a CSO and “a D.C. MPD officer.” CSOSA, Congressional Budget Justification: Fiscal Year 2025, at 58, 65 (Mar. 11, 2024).
Most relevant here, CSOSA‘s GPS monitoring database was created and is maintained with a law enforcement purpose in mind. CSOSA trains MPD officers and other law enforcement partners on how to access and search its GPS monitoring database in real time precisely because it is such a powerful investigatory tool for crime detection and law enforcement. GPS Policy Statement, supra, at 2. As we have previously put it, CSOSA “collects . . . GPS tracking data with a law enforcement objective” and shares this data with MPD “in furtherance of their mutual law enforcement objectives.” Jackson, 214 A.3d at 486 (emphasis added); id. at 476 (CSOSA shares its GPS database with MPD for the express purpose of “aid[ing] in suspect apprehension.“); GPS Policy Statement, supra, at 1 (CSOSA shares GPS data with “allied law enforcement agencies to track criminal behavior.“).
Through its GPS monitoring database, CSOSA provides MPD with direct access to an incredibly powerful investigatory tool. That is not some unforeseen collateral consequence of its GPS monitoring program: it is its raison d‘être.
The government counters that CSOSA‘s central mission is not to root out crime but to “reform convicted offenders,” Jackson, 214 A.3d at 473, with a focus on “rehabilitation,” Atchison, 257 A.3d at 531; see also Scott, 524 U.S. at 368 (“Parole agents, in contrast to police officers, are not ‘engaged in the often competitive enterprise of ferreting out crime.‘” (quoting Leon, 468 U.S. at 914)).2 But agencies, like people, are not
interests in crime detection, and it thus does not dilute the deterrent effects that the exclusionary rule will have on it.3
This case thus does not resemble Leon, Krull, Evans, or (W.G.) Davis because CSOSA was not deferring to any neutral third party‘s superior judgment when authorizing unconstitutional GPS searches. It exercised only its own mistaken judgment that it was statutorily authorized to unilaterally impose GPS monitoring, when in fact it was not, and no neutral third party had assured it otherwise. The fact that neither this court nor Congress intervened to put a stop to that GPS program earlier cannot be understood as their sub silentio authorization of the program—they were never asked to examine whether CSOSA had the statutory authority that it claimed. Neither the Supreme Court nor any other appellate court has ever extended the good faith exception to cover an officer‘s reliance on law enforcement agency regulations,4 and it would not make any sense to do so. It would gut the exclusionary rule to take that leap.
Law enforcement‘s strongest institutional incentives lie in rooting out crime, and its judgments invariably skew in favor of those incentives when they run up against individual rights like those protected
The exclusionary rule is an especially salutary and necessary tool when it acts as a counterweight to the policy-level decisions at issue here, where CSOSA gave to its own agents sweeping authority to unilaterally (and unconstitutionally) impose GPS monitoring on tens of thousands of supervisees over the years. Herring, 555 U.S. at 144, 147 (even “attenuated negligence” that is “far removed” from the constitutional intrusion might warrant suppression if “systemic“). This very case illustrates the point. There has been and there apparently will be no real downside to CSOSA‘s innumerable constitutional violations over the decades, save for the exclusionary rule‘s potential application; those violations were all upside in advancing its law enforcement interests if suppression is removed as a counterweight. CSOSA, as a federal agency, is absolutely immune from civil liability for constitutional torts. F.D.I.C. v. Meyer, 510 U.S. 471, 475, 477-78 (1994). Its individual officers are entitled to qualified immunity for any debatable constitutional violations, so even that indirect disincentive flowing from its officers is off the table for all but the most egregious violations. Mullenix v. Luna, 577 U.S. 7, 11 (2015) (“The doctrine of qualified immunity shields officials from civil liability” unless it “is ‘sufficiently clear that every reasonable official would have understood that what he is doing violates [a constitutional] right.‘” (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012))).
The government counters that CSOSA‘s regulations are subjected to other checks, inapplicable to an officer‘s hurried judgment on the street. For instance, those regulations go through the notice-and-comment process, and CSOSA is subject to some congressional oversight. But this very case demonstrates why those are ineffectual constraints. Agencies often “seek[] to squeeze [their] policy goals into ill-fitting statutory authorizations and restraints,” with notice-and-comment periods providing little backstop against that. Brett M. Kavanaugh, Fixing Statutory Interpretation, 129 Harv. L. Rev. 2118, 2150 (2016) (reviewing Robert A. Katzmann, Judging Statutes (2014)); see also David S. Tatel, The Administrative Process and the Rule of Environmental Law, 34 Harv. Envtl. L. Rev. 1, 2 (2010) (“[I]t looks for all the world like agencies choose their policy first and then later seek to defend its legality.“); Ronald A. Cass, Rulemaking Then and Now: From Management to Lawmaking, 28 Geo. Mason L. Rev. 683, 697 (2021) (Notice-and-comment procedures are “modest almost to the point of being merely precatory.“). Here, for example,
And “congressional oversight of administrative decisionmaking is often limited, infrequent, and ad hoc rather than systematic.” Nina A. Mendelson, Foreword: Rulemaking, Democracy, and Torrents of E-Mail, 79 Geo. Wash. L. Rev. 1343, 1355 (2011). The congressional overseers here never even appeared to question (much less scrutinize) CSOSA‘s authority to unilaterally put its supervisees on GPS monitoring, not even after the Supreme Court first made clear such GPS monitoring constituted a
While the exclusionary rule would thus serve as a potent and necessary deterrent to any future CSOSA violations, its costs—while surely “heavy,” (W.G.) Davis, 564 U.S. at 237—are less weighty than the individual rights on the other side of the scale and the interests in deterring CSOSA‘s systemic violations from recurring. When gauging the deterrent value of exclusion, it is helpful to remember that for each adjudicated
We thus conclude that the good faith exception‘s grace for law enforcement‘s reasonable reliance on neutral decisionmakers has no application here. CSOSA is not a neutral decisionmaker, but acts with express and pronounced law enforcement objectives, so that it can be expected to feel the exclusionary rule‘s bite. That bite is most necessary in deterring systemic constitutional violations like the ones it authorized. Which is to say, “the deterrence benefits of suppression . . . outweigh its heavy costs” here. Id.
2. CSOSA‘s regulations were not attenuated and far removed from this violation
Recall that there is one instance where the good faith exception might apply to law enforcement‘s own errors that are unattributable to its blameless reliance on third-party decisionmakers. The textbook example comes from Herring, in which a police officer made an isolated error in failing to update a warrant database and a different officer from another county then relied on the errant entry and arrested somebody for whom, contrary to the database, there was no outstanding arrest warrant. 555 U.S. at 140-48. In that instance, where the arresting officer “did nothing improper,” id. at 140, and the careless officer‘s data-entry error was singular and distantly “attenuated” from the arrest and search, id. at 144, exclusion was not warranted. The good faith exception applied instead because the only law enforcement culpability was “isolated,” “nonrecurring,” and “far removed” from the
CSOSA‘s constitutionally infirm regulations were none of those things, and we do not understand the government to argue otherwise. CSOSA‘s regulations expressly authorized its CSOs to unilaterally impose GPS monitoring in countless cases, so that its errors were not “isolated” and “nonrecurring” but systemic. And those infirm regulations were not “attenuated” and “far removed” from the recovery of the incriminating evidence against Wells, but directly and predictably led to it, as they led to the recovery of criminal evidence in countless other cases. The good faith exception‘s grace for Herring-type law enforcement errors thus affords CSOSA no shelter either.
3. There is no freestanding good faith exception for reasonable Fourth Amendment violations
The government‘s final argument is that, in the limited circumstances of this case, where an agency‘s regulations approve constitutionally infirm searches, the good faith exception applies so long as the agency might have reasonably thought those regulations were constitutionally permitted. The premises of the argument are as follows. There was a fair argument before Davis that the statute authorizing CSOSA to “develop and operate intermediate sanctions” permitted its widespread GPS monitoring program. While it is now undisputed that it did not, that was once a fairly debatable point given that (1) the dissenting judge in Davis opined that CSOSA was statutorily authorized to unilaterally impose GPS monitoring so that its searches were constitutional, 306 A.3d at 112 (Thompson, J., dissenting), and (2) this court had twice rejected distinct
The government supports this argument with some pretty forceful language from two of the Supreme Court‘s recent good faith cases—Herring and (W.G.) Davis. In Herring, the Court said, for example that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” not officers who acted in an “objectively reasonable” way. 555 U.S. at 144, 146. And in (W.G.) Davis, the Court similarly said that “when the police act with an objectively ‘reasonable good-faith belief that their conduct is lawful . . . exclusion cannot ‘pay its way.‘” 564 U.S. at 238 (quoting Leon, 468 U.S. at 919, 908, n.6). Based largely on that language, the government argues that CSOSA‘s regulations were objectively reasonable, even if ultimately unconstitutional, so that the good faith exception applies.
We disagree. The government conflates two very different things: whether a law enforcement agency reasonably believes it can lawfully intrude into
On the threshold
That conclusion is not altered, and the good faith exception does not kick in, even if we accept that CSOSA might have reasonably thought pre-Davis that it did have statutory authorization to unilaterally implement GPS monitoring as an “intermediate sanction“—it was still unreasonable for CSOSA to act on that unilateral and mistaken judgment.7 That type of deliberate, self-serving, law enforcement guesswork is exactly what the
would have been off the table had CSOSA received such judicial pre-authorization. It was not in any sense reasonable for CSOSA to repeatedly roll the dice with countless individuals’ constitutional liberties based on its own self-serving, merely debatable, but ultimately incorrect reading of a statute. That is true whether its underlying legal mistake was reasonable or not.
suppression whenever it was “objectively reasonable” for law enforcement to believe their intrusions complied with the
Adopting that view would mark a sea change in exclusionary rule jurisprudence that would roughly align it with qualified immunity jurisprudence, with suppression applying to only the most egregious police misconduct where no reasonable officer could have thought it was lawful.9 See generally Mullenix, 577 U.S. at 12 (Qualified immunity insulates officers from suit unless “existing precedent . . . placed the statutory or constitutional question beyond debate.“). We acknowledge that there is language in Herring and (W.G.) Davis that could be read to portend such a cataclysmic shift in the law, which no jurisdiction has adopted in the roughly fifteen years since those decisions. But this court has already quite wisely rejected such a sweeping interpretation of those cases.
Our precedents interpreting Herring and (W.G.) Davis have already held that the good faith exception does not apply where an appellate precedent only arguably countenances law enforcement conduct—the precedent must affirmatively and clearly do so for the good faith exception to apply. See Jones v. United States, 168 A.3d 703, 720 n.33 (D.C. 2017) (“[T]he good-faith exception for police reliance on binding judicial precedent would not apply where ‘the precedent is distinguishable.‘” (quoting (W.G.) Davis, 564 U.S. at 248)); United States v. Debruhl, 38 A.3d 293, 297 (D.C. 2012) (good faith exception applies only where “binding appellate precedent” provides “explicit protection or ‘cover‘” to the officer‘s conduct). It follows that the good faith exception does not apply simply because legislation arguably authorizes a police search; it needs to actually and affirmatively do so, and it didn‘t here. See 4 Wayne R. LaFave, Search and Seizure § 1.3(h) (6th ed. 2024) (”Krull is inapplicable when the officer [himself] merely claims that he made a reasonable but mistaken interpretation of the scope of his search authority under a certain statute.“).
The federal courts of appeals are in accord that the more sweeping reading of
Our dissenting colleague cites to several supposed counterexamples: (1) a Fifth Circuit case that predates the Supreme Court‘s initial adoption of a good faith exception in Leon, and so that case says nothing about how to best interpret those precedents, United States v. Williams, 622 F.2d 830 (5th Cir. 1980) (en banc); (2) a Second Circuit case that offers no opinion at all about the good faith exception‘s application, and merely remanded for the trial court to reconsider that issue in light of Herring, so it is likewise no counterpoint, United States v. Julius, 610 F.3d 60, 65-68 (2d Cir. 2010) (remanding because “we are not confident the district court would reach the same conclusion that suppression is proper in light of Herring“), abrogated by United States v. Bershchansky, 788 F.3d 102, 109 (2d Cir. 2015) (noting that Julius was “inconsistent with our long-established precedent” on other grounds); and (3) a Third Circuit opinion that, like (W.G.) Davis, involved an officer‘s “reliance upon binding appellate precedent,” so it is similarly far afield, United States v. Katzin, 769 F.3d 163, 174 (3d Cir. 2014) (en banc). None of those strikes us as a real counterweight to the uniform rejection of our dissenting colleague‘s view.10
We agree with that assessment. Perhaps the Supreme Court previewed a fundamental shift in how the exclusionary rule applies nationwide in Herring and (W.G.) Davis, but that shift has not yet arrived where the Supreme Court has never applied the good faith exception outside of the narrow contexts we have identified. Just as legislatures do not “hide elephants in mouseholes,” Whitman v. Am. Trucking Ass‘ns., 531 U.S. 457, 468 (2001), the Supreme Court tends not to disguise transformative jurisprudential shifts as merely staying the course, as it insisted it was doing in Herring and (W.G.) Davis. Those cases, unlike this one, reasonably applied the good faith exception to circumstances that fit comfortably within its prior bounds—to officers acting in reasonable reliance on detached third-party decisionmakers—and claimed to be breaking no new ground. See Sheehan, 70 F.4th at 54 (“The Herring Court took pains to anchor its holding to precedent. . . . Far from breaking new ground, Herring applied the rationale elaborated in Leon,” and “[n]othing in Herring suggests an expansion of the good-faith exception to circumstances that Leon previously held to be beyond the pale.“). So we will not strip a few choice phrases in those opinions out of their context to mean that the Court has quietly upended exclusionary rule jurisprudence and replaced it with a new uncertain regime that would be unrecognizable to this nation‘s courts.
As we have already explained, (W.G.) Davis was in line with, and a natural extension of, the seminal good faith cases. Officers relied on binding appellate precedent that affirmatively authorized their search—they were even more justified in believing their search was constitutional than the officers who relied on a single magistrate‘s judgment in Leon—so that they themselves were utterly “blameless.” (W.G.) Davis, 564 U.S. at 249. The same cannot be said of CSOSA, which acted unreasonably in passing its unauthorized regulations and unilaterally authorizing routine unconstitutional searches, rather than simply asking a judge or the Parole Commission to modify any given supervisee‘s release terms. And Herring presents
the only scenario where law enforcement negligence leading toIII. Conclusion
For those reasons, we affirm the trial court‘s suppression ruling.
So ordered.
Associate Judge MCLEESE, dissenting: The opinion for the court holds that (1) the Court Services and Offender Supervision Agency (CSOSA) violated the
In support of the conclusion that CSOSA‘s GPS monitoring in this case violated the
The remaining issue in this case is whether the evidence obtained as a result of that GPS monitoring ought to have been suppressed. The opinion for the court holds that the evidence should have been suppressed, but I see that issue quite differently.
I. The Law of the Supreme Court
In a series of cases reaching back more than forty years, the Supreme Court has articulated the following clear and consistent framework for determining when evidence obtained in violation of the
“Real deterrent value is ‘a necessary condition for exclusion,’ but it is not ‘a sufficient one.‘” Davis, 564 U.S. at 237 (quoting Hudson v. Michigan, 547 U.S. 586, 596 (2006)). “The analysis must also account for the ‘substantial social costs’ generated by the [exclusionary]
“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237 (citing Herring, 555 U.S. at 141, and Leon, 468 U.S. at 910). “[T]he [exclusionary] rule‘s costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application.” Hudson, 547 U.S. at 591 (brackets and internal quotation marks omitted) (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 364-65 (1998)).
“In a line of cases beginning with Leon, 468 U.S. 897, [the Supreme Court]... recalibrated [its] cost-benefit analysis in exclusion cases to focus the inquiry on the ‘flagrancy of the police misconduct’ at issue.” Davis, 564 U.S. at 238 (quoting Leon, 486 U.S. at 911). “The basic insight of the Leon line of cases is that the deterrence benefits of exclusion ‘vary with the culpability of the law enforcement conduct’ at issue.” Id. (brackets omitted) (quoting Herring, 555 U.S. at 143). “When the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for
The Supreme Court has repeatedly emphasized the last point: on balance, it is not justified to suppress evidence in order to try to deter objectively reasonable police conduct:
Where the officer‘s conduct is objectively reasonable, excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that the officer is acting as a reasonable officer would and should act in similar circumstances. Excluding the evidence can in no way affect [the officer‘s] future conduct unless it is to make [the officer] less willing to do [the officer‘s] duty.
Arizona v. Evans, 514 U.S. 1, 11-12 (1995) (brackets and ellipsis omitted) (quoting Leon, 468 U.S. at 919-20); see also, e.g., Herring, 555 U.S. at 144 (“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it,
In sum, “[t]he exclusionary rule exists to deter police misconduct.” Strieff, 579 U.S. at 241; see also, e.g., Herring, 555 U.S. at 137 (Whether evidence obtained in violation of the
“The [Supreme] Court has over time applied [the] ‘good-faith’ exception across a range of cases.” Davis, 564 U.S. at 238; see also id. at 238-39 (citing Leon, 468 U.S. at 922 (declining to suppress evidence obtained in reasonable reliance on warrant later determined to be unlawful under
In my view, application of this well-settled framework requires the conclusion that the evidence in this case should not have been suppressed. The opinion for the court correctly acknowledges both that (1) before this court‘s decision in Davis, individual CSOSA employees did not engage in misconduct by following CSOSA‘s regulation; and (2) individual CSOSA employees would not be deterred from following similar regulations in the future by suppression of the evidence in this case. Ante at 17 & n.1. So the issue is whether suppression here is warranted based on CSOSA‘s conduct as an agency. The opinion for the court at times appears to acknowledge, in my view correctly, that CSOSA could reasonably have believed that its regulation was statutorily authorized. Ante at 30, 32. I note, however, that the opinion for the court at other times seems to take a rather different view, stating for example that “the statutory scheme already made clear enough” that CSOSA lacked statutory authority to promulgate the regulation. Ante at 27. I see no need to belabor the point here, but I do not agree with the latter characterization.
If CSOSA had been correct that it had statutory authority to promulgate the regulation at issue, then the warrantless searches authorized by the regulation would in my view have been lawful under the special-needs exception. Neither the opinion of this court in Davis nor the opinion for the court in this case holds otherwise. It follows that, far from engaging
As I will discuss more fully infra, moreover, the same conclusion follows in my view from a balancing of the costs and benefits of exclusion, conducted within the mandatory framework the Supreme Court has provided.
The opinion for the court reaches the opposite conclusion, and my views differ from those of the court in several respects. I note that I do not understand either the parties or the opinion for the court to dispute that this court is obliged to follow the holdings of the Supreme Court with respect to the proper scope of the exclusionary rule under the
The opinion for the court presents a very different picture of the Supreme Court‘s exclusionary-rule decisions than I have just presented. In a nutshell, the opinion for the court takes the view that (1) suppression of evidence is “typically” or “‘usually‘” the remedy for
(1) It is true that the Supreme Court said in Krull that the “exclusionary rule usually precludes [the use of evidence obtained in violation of the
The opinion for the court states that the Supreme Court has abandoned only the idea that “exclusion is a necessary consequence of a
(2) I do not agree that the Supreme Court‘s rationale for the good-faith exception is that law enforcement has been “blameless” in relying on the judgment of “neutral” and “superior” decisionmakers. Ante at 12-14. The Supreme Court does use the word “blameless” once in Davis, explaining that officers are “blameless” when they rely on controlling law from a federal circuit that is later overruled. 564 U.S. at 249. As noted earlier in this opinion, however, elsewhere in Davis and in its other exclusionary-rule cases, the Supreme Court uses different terms to describe the police conduct at issue, drawing a consistent distinction between conduct that is “objectively reasonable,” as to which the exclusionary rule should not apply, and conduct that is “culpable,” “wrongful,” or “misconduct,” as to which the exclusionary rule ordinarily should apply. In other words, the Supreme Court‘s exclusionary-rule cases establish that the key issue is “objective reasonableness,” not “blameworthiness,” to the extent that there is a distinction between the two concepts (more on that topic later).
Moreover, the idea of “blamelessness” cannot explain the outcome of the Supreme Court‘s exclusionary-rule cases. Most notably, the unconstitutional search in Herring was the result of a negligent error by a law-enforcement employee, yet the Supreme Court concluded that suppression of evidence was unwarranted. 555 U.S. at 136-48. The opinion for the court in this case acknowledges that Herring does not fit the hypothesized “throughline” of blameless reliance on the judgment of neutral and superior decisionmakers. Ante at 13, 14-15. The opinion for the court attempts to address that problem by describing Herring as an “attenuation” case that turned on the factual distance between the employee‘s error and the search months later by a different officer from a different county. Ante at 14-15, 29, 34 n.8. I agree that the concept of attenuation is a part of the Supreme Court‘s analysis in Herring, which involved law-enforcement conduct that was negligent rather than objectively reasonable. But Herring contradicts rather than supports the idea that the good-faith exception requires attenuation in cases in which law enforcement has acted objectively reasonably. See, e.g., People v. Robinson, 224 P.3d 55, 69 (Cal. 2010) (“We next note that the Supreme Court‘s general holding [in Herring] regarding what conduct triggers the exclusionary rule does not focus on the issue of attenuation . . . . Instead, the high court requires us to focus on whether the facts presented warrant application of the exclusionary rule ‘to deter deliberate, reckless, or grossly negligent conduct, or . . . recurring or systemic negligence.‘“) (quoting Herring, 555 U.S. at 144).
The concept of neutrality figures heavily in Leon, which involved officers’ reliance on warrants issued by neutral magistrates. E.g., 468 U.S. at 913. But the concept of neutrality is not the basis of Krull, for example, which held that evidence obtained in reasonable reliance on a statute later determined to be unlawful under
- legislatures are not “adjuncts to the law enforcement team” “engaged in the often competitive enterprise of ferreting out crime,” id. at 350-51
(internal quotation marks omitted); - unlike law-enforcement officers, legislators do not make “hurried judgment[s],” id. at 351;
- courts presume that legislative enactments are constitutional, id.;
- There is no evidence suggesting that Congress or state legislatures have enacted a significant number of statutes permitting warrantless administrative searches violative of the
Fourth Amendment . . . . Thus, we are given no basis for believing that legislators are inclined to subvert their oaths and theFourth Amendment and that lawlessness among these actors requires application of the extreme sanction of exclusion. Id. (internal quotation marks omitted); and - Legislators enact statutes for broad, programmatic purposes, not for the purpose of procuring evidence in particular criminal investigations. Thus, it is logical to assume that the greatest deterrent to the enactment of unconstitutional statutes by a legislature is the power of the courts to invalidate such statutes. . . . There is nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the statute prior to the declaration of its invalidity will act as a significant, additional deterrent. Id. at 352.
As I will explain more fully later, in my view the points that Krull made about legislatures are almost all fully applicable to CSOSA.
Finally, I have found no reference whatsoever in the Supreme Court‘s exclusionary-rule cases to the concept of “superior” decisionmakers. That concept seemingly has no application to cases such as Evans and Herring, which as noted above involved inadvertent clerical errors.
Thus, the three considerations identified by the opinion for the court as critical components of the good-faith exception to the exclusionary rule—blamelessness, neutrality, and superiority—do not explain either the reasoning or the outcome of the Supreme Court‘s exclusionary-rule cases. In my view, this court lacks authority to disregard the Supreme Court‘s actually stated rationale in favor of a hypothesized implicit “throughline” that contradicts the binding framework for decision that the Supreme Court has provided.
(3) The opinion for the court dismisses what I have described as the Supreme Court‘s binding framework for deciding exclusionary-rule issues as “language” in only two Supreme Court cases. Ante at 31. I respectfully disagree with that characterization. As I have attempted to show, a long line of Supreme Court cases has established a clear and consistent framework for deciding exclusionary-rule issues.
It is true that courts are permitted to treat unnecessary dicta or unduly broad language as nonbinding in later cases. See, e.g., Richman Towers Tenants’ Ass‘n, Inc. v. Richman Towers LLC, 17 A.3d 590, 598 (D.C. 2011) (“[The] words of our opinions are to be read in the light of the facts of the order under discussion. To keep opinions within reasonable bounds precludes writing into them every limitation or variation which might be suggested by the circumstances of cases not before the Court. General expressions transposed to other facts are often misleading.“) (emphasis omitted) (quoting Armour & Co. v. Wantock, 323 U.S. 126, 132-33 (1944)); Martin v. Bicknell, 99 A.3d 705, 710 (D.C. 2014) (declining to treat “passing statement” on issue not presented as binding precedent). In my view, however, those doctrines are not applicable to the Supreme Court‘s repeated holdings
As a rationale for refusing to adhere to the Supreme Court‘s binding framework for deciding exclusionary-rule issues, the opinion for the court asserts that it is not “mere happenstance . . . that every single one of the Supreme Court‘s good-faith cases involved officer reliance on some detached third-party judgment.” Ante at 34. Herring contradicts that assertion, however, because Herring involved a negligent mistake, not a “judgment,” made by a police officer, not a third party who was “detached” in the sense that term is used in the context of the exclusionary rule. See, e.g., Leon, 468 U.S. at 913 (explaining that search warrants are “issued by a detached and neutral magistrate“). More fundamentally, even if it were true that the Supreme Court had never before applied its framework for deciding exclusionary-rule issues to a case in which an officer was not relying on a “detached third-party judgment,” that would only raise the question of how to apply the Supreme Court‘s framework to that particular context. It would not permit a lower court to reject the Supreme Court‘s framework and create a different framework of its own that contradicts binding principles of law established by the Supreme Court.
For the foregoing reasons, I conclude that the opinion for the court is not free to dismiss the Supreme Court‘s binding framework for deciding exclusionary-rule issues as mere “language” from a couple of relatively recent Supreme Court cases.
(4) As basis for refusing to give effect to what I view as the Supreme Court‘s binding directives, the opinion for the court states that “[j]ust as legislatures do not hide elephants in mouseholes, the Supreme Court tends not to disguise transformative jurisprudential shifts as merely staying the course.” Ante at 39 (citation and internal quotation marks omitted). I disagree with this statement for several reasons. First, far from working a “transformative jurisprudential shift[],” the reasoning in Davis and Herring is entirely consistent with the framework for deciding exclusionary-rule issues that the Supreme Court has established over the last forty years, beginning with Leon.
Moreover, to use the metaphor chosen by the opinion for the court in this case, this line of Supreme Court authority has been understood all along to be a potential elephant—nothing has been hidden in mouseholes. In Leon, the Supreme Court acknowledged that it was “modif[ying]” the exclusionary rule. 486 U.S. at 905. The Supreme Court also signaled that the modified approach it was adopting might well have broad implications. E.g., id. at 909 (“[T]he balancing approach that has evolved in various contexts—including criminal trials—forcefully suggests that the exclusionary rule be more generally modified to permit the introduction of evidence obtained in the reasonable good-faith belief that a search or seizure was in accord with the
In sum, taking the Supreme Court at its word would in my view not remotely be making an elephant out of a hidden mouse.
II. Objective Reasonableness and Blamelessness
The opinion for the court expresses the view that even if CSOSA could reasonably have believed that it had statutory authority to promulgate the regulation at issue, CSOSA‘s conduct in promulgating the regulation nevertheless was not “in any sense reasonable.” Ante at 32-34. I disagree.
The opinion for the court makes two subsidiary points here. First, relying on the Supreme Court‘s decision in Heien v. North Carolina, 574 U.S. 54, 66-67 (2014), the opinion for the court states that if CSOSA‘s promulgation of the regulation had been reasonable, then CSOSA‘s conduct would have rested on a reasonable mistake of law that would not even have violated the
Second, the opinion for the court expresses the broader view that even if a law-enforcement agency or officer reasonably believes that a given warrantless search is lawful under the
III. Balancing the Costs of Suppression and the Value of Deterrence
A. The Costs of Suppression
As previously noted, supra at 43, the Supreme Court has directed courts to suppress evidence under the exclusionary rule only as a last resort, because suppression‘s costs are heavy. Specifically, suppression “almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence.” Davis, 564 U.S. at 237 (citing Stone, 428 U.S. at 490-91). “And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.” Id. (citing Herring, 555 U.S. at 141).
The opinion for the court acknowledges the costs of suppression but for the most part only fleetingly and abstractly. E.g., ante at 3. The most specific discussion of the costs of suppression is the observation that suppressing the fruits of searches conducted under CSOSA‘s regulation apparently would not affect a large number of cases. Id. at 28 & n.5. I have no quarrel with that observation, but I do note that I believe that the weighing of costs and benefits probably needs to be conducted on a somewhat more general basis: the costs and benefits of suppression not just in a single case, or with respect to a single regulation, but rather with respect to the general context at issue. For current purposes, for reasons I will explain later, I take that context to be the costs and benefits of a rule requiring suppression of evidence obtained by warrantless searches pursuant to a regulation that a law-enforcement agency reasonably believed lawfully authorized the searches but that was later determined to have been
B. The Value of Deterrence
With respect to deterrence of unconstitutional searches, the opinion for the court reasons as follows: (1) CSOSA is a law-enforcement agency, not a neutral decisionmaker, ante at 18-21; (2) law-enforcement agencies have an incentive to “push the Fourth Amendment envelope in systematic ways,” id. at 23; (3) other possible disincentives to agency overreaching are ineffective, because CSOSA officers (like other agency employees) have qualified immunity that will protect them from being held personally liable except in the most egregious cases, agency notice-and-comment procedures are ineffective, and congressional oversight is “limited, infrequent, and ad hoc,” id. at 23-26 (internal quotation marks omitted); (4) CSOSA‘s regulation has yielded “innumerable law enforcement benefits,” id. at 28; (5) suppression of the evidence obtained as a result of CSOSA‘s regulation is a necessary counterweight to those benefits, id. at 27; and (6) that is particularly true because adopting a general “objective reasonableness” standard would preclude suppression except in “the most egregious” cases, because courts would apply the qualified-immunity standard, which precludes imposition of monetary liability except when no reasonable officer could have thought that the conduct at issue was lawful, id. at 35 (citing Mullenix v. Luna, 577 U.S. 7, 11 (2015) (liability can be imposed only if official‘s conduct violated a “clearly established right,” i.e., a right that is “sufficiently clear that every reasonable official would have understood that what [the official] is doing violates that right“) (internal quotation marks omitted)).
My assessment of the issue of deterrence differs substantially from the approach reflected in the opinion for the court. I note at the outset, however, a couple of points of agreement. First, I agree that CSOSA is not a neutral decisionmaker but rather is a law-enforcement agency. Ante at 18-21. That point should not be overstated, however. In United States v. Jackson, 214 A.3d 464 (D.C. 2019), and Atchison v. United States, 257 A.3d 524 (D.C. 2021), this court held that CSOSA‘s GPS monitoring of probationers and people on supervised release was justified by “special needs, beyond the normal need for law enforcement.” Jackson, 214 A.3d at 473 (internal quotation marks omitted); Atchison, 257 A.3d at 530-31. Specifically, we noted that such monitoring permissibly “deter[s] recidivism and encourages[s] rehabilitation.” Atchison, 257 A.3d at 531; see also Jackson, 214 A.3d at 475. In other words, contrary to the picture presented by the opinion for the court, ante at 18-21, this court has already held that the regulation at issue in this case was not promulgated by CSOSA acting primarily to advance the “normal need for law enforcement,” Jackson, 214 A.3d at 473 (internal quotation marks omitted), i.e., to engage in the “often competitive enterprise of ferreting out crime,” Scott, 524 U.S. at 368 (internal quotation marks omitted).
Second, as an original matter, I can see a quite reasonable argument that it would be valuable to try to deter agencies and individual officers from relying on their own good-faith views about the legality of their conduct, even when those views are
As for my points of disagreement about deterrence:
(1) I view this case as rather similar to Krull. I acknowledge one difference: although legislatures are not “neutral,” they are not law-enforcement agencies. Nonetheless, whether objectively reasonable regulations (not primarily directed at ferreting out crime) promulgated by law-enforcement agencies raise concerns that justify application of a suppression remedy is an issue quite similar to the issue in Krull. As previously noted, supra at 52-53, almost everything that the Supreme Court said about legislative enactments in Krull applies equally to agency regulations like that at issue in this case: (a) such regulations are not part of the “often competitive enterprise of ferreting out crime,” Krull, 480 U.S. at 350-51; (b) agency regulations are not promulgated in haste, id. at 351; (c) agency regulations are presumed to be constitutional, id. at 351; see, e.g., Cap. Auto Sales, Inc. v. District of Columbia, 1 A.3d 377, 382 (D.C. 2010) (“There is a strong presumption of constitutionality afforded to [administrative] regulations . . . .“) (internal quotation marks omitted); (d) there is no evidence suggesting that either CSOSA in particular or administrative agencies, law-enforcement or otherwise, “have enacted a significant number of statutes [or regulations] permitting warrantless administrative searches violative of the Fourth Amendment,” Krull, 480 U.S. at 351; (e) we have no basis for believing that officials at CSOSA specifically or administrative agencies more generally “are inclined to subvert their oaths and the Fourth Amendment and that lawlessness among these actors requires application of the extreme sanction of exclusion,” id. at 351 (internal quotation marks omitted); (f) administrative agencies promulgate regulations “for broad, programmatic purposes, not for the purpose of procuring evidence in particular criminal investigations,” id. at 352; (g) “it is logical to assume that the greatest deterrent” to the promulgation of unconstitutional regulations by an administrative agency “is the power of the courts to invalidate such” regulations, id.; and (h) “[t]here is nothing to indicate that applying the exclusionary rule to evidence seized pursuant to the [regulation] prior to the declaration of its invalidity will act as a significant, additional deterrent,” id.
(2) Although I acknowledge that notice-and-comment procedures and legislative oversight are not perfect solutions, I do not agree with the rather stark critique of those features of the administrative process as “ineffectual.” Ante at 24.
(3) It seems to me that the opinion for the court actually undermines rather than supports the theory that suppression of the evidence obtained as a result of CSOSA‘s regulation would meaningfully deter a hypothetical agency that was zealously focused on systematically “push[ing] the Fourth Amendment envelope,” ante at 23, at least as to regulations comparable to the regulation at issue in this case. According to the opinion of the court, CSOSA‘s regulation yielded “innumerable law enforcement benefits.” Id. at 28. That assessment, moreover, does not include the regulation‘s primary benefits, beyond the normal need for law enforcement, in monitoring people who are under supervision
(4) I see no adequate basis for the assumption of the opinion for the court that adopting an “objective reasonableness” standard would permit suppression only if the law-enforcement conduct at issue was so egregious that personal monetary liability could properly be imposed under the qualified-immunity standard. Ante at 35. To the contrary, the Supreme Court explained in Heien that the question whether a mistake of law was reasonable for purposes of determining whether the Fourth Amendment was violated is distinct from the qualified-immunity standard. Heien, 574 U.S. at 67 (“[T]he inquiry is not as forgiving as the one employed in the distinct context of deciding whether an officer is entitled to qualified immunity . . . . Thus, an officer can gain no Fourth Amendment advantage through a sloppy[ ]study of the laws [the officer] is duty-bound to enforce.“). In my view, the same should be true of the question whether a warrantless search was objectively reasonable for purposes of the exclusionary rule. The qualified-immunity standard “protects all but the plainly incompetent or those who knowingly violate the law” from being subject to personal monetary liability for the official decisions. Kisela v. Hughes, 584 U.S. 100, 104 (2018). I believe that the standard of objective reasonableness in the current context should be more demanding, along the lines indicated by the Supreme Court in Heien.
I need not further delve into a precise definition of “objective reasonableness” in this case, however. As I have noted, my view as an original matter is that this court‘s decision in Davis was incorrect. Supra at 41-42. It would follow that CSOSA was not merely reasonable but rather correct to think that its regulation and the ensuing searches were lawful. I take as a given for current purposes, however, that CSOSA was incorrect and that Davis was correctly decided. But I see CSOSA‘s view as entirely reasonable, even if I assume for current purposes that it was incorrect. Thus, this case is much like Heien, where the Supreme Court had “little difficulty concluding that the officer‘s error of law was reasonable.” 574 U.S. at 67; see also id. at 71 (Kagan, J., concurring) (“[T]he statute poses a quite difficult question of interpretation, and [the officer]‘s judgment, although overturned, had much to recommend it.“).
C. Balancing
I believe that we are required to approach this case from the perspective that suppression is a last resort and that a party seeking to justify it “must bear a heavy burden.” Leon, 468 U.S. at 907 n.6 (internal quotation marks omitted). For the reasons I have stated, I do not believe that Mr. Wells has carried that burden.
The opinion for the court states that failing to suppress evidence obtained based on a regulation that a law-enforcement agency reasonably believed was lawful, but a court later determined was not lawful, would “gut” the Fourth Amendment or transform the Fourth Amendment into “toast.” Ante at 22, 23. I view those statements as mere hyperbole. However this case is decided, the Fourth Amendment will indisputably have enormous
IV. Lower-Court Decisions
The opinion for the court suggests that the federal courts of appeals are “in accord” in giving the Supreme Court‘s exclusionary-rule decisions a narrow rather than “sweeping” reading. Ante at 36; see also id. at 40 (following Supreme Court‘s reasoning in Davis and Herring would result in “regime that would be unrecognizable to this nation‘s courts“). I do not view that suggestion as accurate. To the contrary, several courts of appeals have relied on the Supreme Court‘s exclusionary-rule cases to take a view of the good-faith exception to the exclusionary rule that is quite a bit more expansive than the view taken by the opinion for the court in this case. See United States v. Katzin, 769 F.3d 163, 169-87 (3d Cir. 2014) (en banc) (even if no prior binding authority at time of search established lawfulness of warrantless search later determined to be unlawful, suppression of evidence not justified if officers had objectively reasonable belief that search was lawful); United States v. Master, 614 F.3d 236, 242-43 (6th Cir. 2010) (interpreting Supreme Court‘s decisions in Hudson and Herring to undermine prior circuit law and to establish that “the crucial finding needed to suppress evidence is whether ‘police misconduct is sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system‘“) (quoting Herring, 555 U.S. at 144); United States v. Julius, 610 F.3d 60, 65-68 (2d Cir. 2010) (assuming that warrantless search of parolee‘s apartment violated Fourth Amendment, remanding for trial court to conduct case-specific balancing as to whether benefits of suppression would outweigh costs, taking into account, among other things, whether officers’ conduct reflected “the requisite level of culpability“); United States v. Williams, 622 F.2d 830, 846-47 (5th Cir. 1980) (en banc) (“Henceforth in this circuit, when evidence is sought to be excluded because of police conduct leading to its discovery, it will be open to the proponent of the evidence to urge that the conduct in question, if mistaken or unauthorized, was yet taken in a reasonable, good-faith belief that it was proper. If the court so finds, it shall not apply the exclusionary rule to the evidence.“); see also State v. Burch, 961 N.W.2d 314, 318-22 (Wis. 2021) (even if officer violated Fourth Amendment by obtaining cell-phone information without obtaining warrant, suppression was not justified because officer‘s conduct was at worst negligent and costs of suppression outweighed any deterrence benefit); Collins v. Commonwealth, 824 S.E.2d 485, 488-96 (Va. 2019) (suppression was not justified because at time of search reasonably well-trained officer would not have known that warrantless search was impermissible under Fourth Amendment).
I am unpersuaded by the contention of the opinion for the court that the above-cited cases are not “a real counterweight to the uniform rejection” by the lower courts of the Supreme Court‘s controlling framework for deciding exclusionary-rule issues. Ante at 38. For example, contrary to the suggestion of the opinion for the court, ante at 37, the United States Court of Appeals for the Fifth Circuit relied on that framework when holding en banc that the good-faith exception applies to warrantless searches by police officers. United States v. De Leon-Reyna, 930 F.2d 396, 400 (5th Cir. 1991) (relying on Leon, 468 U.S. at 906). Similarly, I believe that it is inaccurate to say that the decision of the United States Court of Appeals for the Second Circuit in Julius “offer[ed] no opinion at all about the good faith exception‘s application.” Ante at 37. See Julius, 610 F.3d at 66-68 (holding that
It is true, as the opinion for the court in this case notes, that several federal circuits have continued to take a very narrow approach to the good-faith exception notwithstanding the Supreme Court authority I have emphasized. Ante at 36-37. For the reasons expressed in this opinion, I do not find those decisions persuasive.
The opinion for the court in this case correctly points out that this court has already adopted a narrow interpretation of the Supreme Court‘s decision in Davis, limiting Davis to cases in which squarely controlling precedent, rather than arguably distinguishable precedent, established the legality of the search at the time the search was conducted. Ante at 35-36. I view this court‘s exclusionary-rule decisions as rather problematic. For example, just last year, the en banc court reinstated a decision stating that suppression is generally required under the Fourth Amendment. Mayo v. United States, 315 A.3d 606, 639 (D.C. 2024) (en banc), reinstating in pertinent part Mayo v. United States, 266 A.3d 244, 269 (D.C. 2022). As far as I have been able to determine, no prior opinion for this court has ever acknowledged, much less addressed, the Supreme Court‘s contrary holding that suppression is a last resort.
In a concurring opinion, I recently addressed the difficult question of what a judge on a lower court should do when the judge perceives a conflict between binding Supreme Court precedent and normally binding prior decisions of the judge‘s court. D.W. v. United States, No. 19-CF-0143, 2025 WL 1982226, at *6-9 (D.C. July 17, 2025) (McLeese, J., concurring). That opinion has since been vacated pending rehearing en banc. D.W. v. United States, No. 19-CF-0143, 2025 WL 2233816 (D.C. Aug. 4, 2025). I therefore repeat the pertinent discussion here.
In general terms, the question is: How should a lower-court judge proceed if (1) the judge personally interprets a decision of the Supreme Court of the United States in one way; but (2) a lower-court decision normally binding on the judge, either by the judge‘s own court or by a higher court other than the Supreme Court of the United States, has adopted a different and inconsistent interpretation of the Supreme Court‘s opinion? Should the judge follow the judge‘s personal view as to the proper interpretation of the Supreme Court opinion or the differing view adopted by the normally binding decision of the lower court?
As far as I have been able to determine, neither the Supreme Court of the United States nor this court has expressly answered this question. I have located several decisions in which federal circuit courts have squarely addressed the question, and all of those decisions hold that judges on a subsequent panel are bound by prior circuit decisions interpreting Supreme Court cases, even if those judges believe that the prior circuit decisions misinterpreted the Supreme Court cases at issue. See Smith v. GTE Corp., 236 F.3d 1292, 1301-04 (11th Cir. 2001) (even if prior decision of circuit misinterpreted Supreme Court case that prior decision discussed, subsequent panel of circuit was bound by prior circuit decision); Barber v. Johnson, 145 F.3d 234, 237 (5th Cir. 1998) (same); Clow v. U.S. Dep‘t of Hous. & Urb. Dev., 948 F.2d 614, 616 n.2 (9th Cir. 1991) (per curiam) (“The dissent does not argue that an intervening Supreme Court decision has cast doubt on our prior circuit law, rather it asserts that the very Supreme Court decision upon which these cases rely does not support
As an aside, I note that there appear to be conflicts in the federal circuit courts about how to handle two related but distinct situations: (1) where a prior circuit decision has overlooked Supreme Court authority, compare, e.g., Sabal Trail Transmission, LLC v. 18.27 Acres of Land, 59 F.4th 1158, 1160, 1173 (11th Cir. 2023) (under “prior-precedent rule” prior decisions of circuit are binding even if prior circuit decisions overlooked contrary Supreme Court decisions), with, e.g., United States v. Tann, 577 F.3d 533, 542 (3d Cir. 2009) (subsequent circuit panel not bound by prior decision of circuit that did not address contrary Supreme Court authority), and (2) where a circuit-court panel “believes that there is conflict between an initial binding precedent [of the circuit] and a subsequent decision [of the circuit] that interpreted the initial precedent,” Parker v. K & L Gates, LLP, 76 A.3d 859, 880 n.2 (D.C. 2013) (McLeese, J., concurring) (citing cases).
Turning back to the precise issue before me, I do not view that issue as an easy one. On one hand, the obligation of lower courts to follow the holdings of the Supreme Court has been described as “absolute, as it must be in a hierarchical system.” Nat‘l Republican Senatorial Comm. v. Fed. Election Comm‘n, 117 F.4th 389, 395 (6th Cir. 2024) (quoting Ramos v. Louisiana, 590 U.S. 83, 124 n.5 (2020) (Kavanaugh, J., concurring in part)). It seems counterintuitive that a decision of a lower court that incorrectly interprets a Supreme Court decision should be treated as requiring later judges of that lower court to follow incorrect decisions of that lower court rather than the actual holding of the Supreme Court.
On the other hand, the view that a lower-court decision interpreting a Supreme Court case is not binding on judges of that lower court would have surprising and undesirable consequences. As the Ninth Circuit put it, “If we were all free to disregard our prior circuit law based on our own predilections as to whether these decisions properly construe the Supreme Court cases upon which they rely, the doctrine of stare decisis would have little meaning . . . .” Clow, 948 F.2d at 616 n.2. To further illustrate the potential implications of such an approach, it would seem to follow that federal district-court judges could decline to follow decisions of their circuit interpreting Supreme Court cases, instead taking the view that their obligation was to follow their own understanding of what the Supreme Court had held.
On balance, I am persuaded by the view taken by the circuit courts that have addressed the issue. Thus, I conclude that, at least barring unusual circumstances, I am bound by the holdings of decisions of this
Turning back to the present case, I agree with those courts that have held that divisions of the lower court are not bound by decisions of the court that failed to address conflicting Supreme Court decisions. Supra at 74-75 (citing Tann, 577 F.3d at 542 (subsequent circuit panel not bound by prior decision of circuit that did not address contrary Supreme Court authority)). I thus proceed in this case on the basis that suppression is a last resort rather than the usual remedy.
I find the stare decisis question more difficult with respect to the more specific question whether to read the Supreme Court‘s decision in Davis narrowly to apply only where the individual police officer‘s conclusion that a search is lawful rests on squarely controlling authority, as opposed to more broadly when the officer‘s conclusion is objectively reasonable based on current law. In adopting a narrow interpretation of Davis, this court explicitly discussed Davis. See United States v. Debruhl, 38 A.3d 293, 297 (D.C. 2012). As I previously noted, supra at 72-76, I believe that, at least barring unusual circumstances, I am bound by the holdings of decisions of this court interpreting Davis, even if in my view those decisions incorrectly interpreted Davis.
Although I have doubts about the correctness of the court‘s ruling in Debruhl, I need not decide whether those doubts rise to the level of “unusual circumstances” that would justify departing from Debruhl and instead following a different understanding of the Supreme Court‘s decision in Davis. I say that for two reasons. First, as the opinion for the court in this case points out, ante at 34, the United States in this case has not clearly pushed for a broad holding that suppression is unjustified whenever an individual police officer acted with an objectively reasonable belief that a search was lawful. Moreover, we do not need to decide that precise question in this case, because we here confront a somewhat different question: whether suppression is warranted when a law-enforcement agency not engaged in the competitive activity of ferreting out crime conducts a search in the objectively reasonable belief that the search was lawful. I do not understand this court‘s prior cases to require me to answer that question differently from the way I answer the question under the Supreme Court‘s binding authority.
For the foregoing reasons, I would hold that the trial court erred in suppressing the evidence at issue in this case. I respectfully dissent from the contrary holding of the court.