Despite the Tennessee Supreme Court’s recent changes in exclusionary rule jurisprudence, the court has not yet adopted Herring on good faith reliance on an out of date list. This court will not do it–that court has to. State v. McElrath, 2017 Tenn. Crim. App. LEXIS 451 (May 31, 2017):
II. Good-Faith Exception to the Exclusionary Rule
Next, the State urges this Court, as it did the trial court, to hold that Officer Cummings’s “good-faith reliance” on the information provided to him by dispatch creates an exception to the exclusionary rule. Relying on numerous United States Supreme Court cases and our Supreme Court’s decision of State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016), the State urges this Court to conclude that Officer Cummings arrested the defendant based upon his “good-faith reliance on the barred list maintained by the police department” and, therefore, “his conduct was lawful and the exclusion of the evidence is not warranted.” Despite our Supreme Court’s recent adoption of two good-faith exceptions to the exclusionary rule¸ the State’s argument and the facts in the instant matter do not fall within the narrowly tailored exceptions created by the Court in Reynolds and State v. Davidson, 509 S.W.3d 156 (Tenn. 2016).
The United States Supreme Court created the exclusionary rule as a remedy for Fourth Amendment violations in Weeks v. United States, 232 U.S. 383, 34 S. Ct. 341, 58 L. Ed. 652, T.D. 1964 (1914). Reynolds, 504 S.W.3d at 309. Eight years after Weeks, our Supreme Court considered whether evidence discovered in a warrantless search of the defendant’s vehicle in violation of article I, section 7 of the Tennessee Constitution was unlawfully admitted at the defendant’s trial. Id. at 310 (citing Hughes v. State, 145 Tenn. 544, 238 S.W. 588, 594 (1922)). Relying on Weeks, the Court adopted the exclusionary rule as a remedy applicable to evidence “produced by violating the constitutional protection against unlawful searches and seizures.” Id. Then, in 1961, the United States Supreme Court applied the exclusionary rule to the states through the Fourteenth Amendment Due Process Clause. Id. (citing Mapp v. Ohio, 367 U.S. 643, 655, 81 S. Ct. 1684, 6 L. Ed. 2d 1081, 86 Ohio L. Abs. 513 (1961)). Thus, the exclusionary rule has long been available in Tennessee as a remedy for violations of the federal and state constitutional protections against unreasonable searches and seizures. Id.
In order to ensure that the exclusionary rule only serves “the sole purpose … to deter misconduct by law enforcement,” the United States Supreme Court has adopted and applied several good-faith exceptions to the exclusionary rule in different factual and legal scenarios, where applying the exclusionary rule would not result in appreciable deterrence. See, e.g., Davis v. United States, 564 U.S. 229, 240, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (holding that the exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on binding appellate precedent); Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (refusing to apply the exclusionary rule when law enforcement officers reasonably relied in good faith on a database managed by the police); Arizona v. Evans, 514 U.S. 1, 3-4, 115 S. Ct. 1185, 131 L. Ed. 2d 34 (1995) (declining to apply the exclusionary rule when law enforcement officers reasonably relied in good faith on a database managed by the judiciary); Illinois v. Krull, 480 U.S. 340, 107 S. Ct. 1160, 94 L. Ed. 2d 364 (1987) (declining to apply the exclusionary rule when law enforcement officers reasonably relied in good faith on a statute later declared unconstitutional). However, as the United States Supreme Court has continued to clarify when and how the exclusionary rule should be applied, our Supreme Court has, until recently, declined to adopt any good-faith exceptions to the exclusionary rule.
Recently, however, our Supreme Court reviewed the application of the exclusionary rule and the numerous good-faith exceptions created by the United States Supreme Court. See State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016); State v. Davidson, 509 S.W.3d 156 (Tenn. 2016). While the Court reviewed many of the exceptions created by the Supreme Court, including one that might be applicable in this matter, see Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), the Court only adopted two narrowly tailored good-faith exceptions. In Reynolds, the Court held that an exception to the exclusionary rule “‘applies only when the law enforcement officers’ action is in objectively reasonable good faith reliance on ‘binding appellate precedent’ that ‘specifically authorizes a particular police practice.'” Reynolds, 504 S.W.3d at 313 (citing Davis, 564 U.S. at 241, 131 S.Ct. 2419). The Court went on to state,
Like the Minnesota Supreme Court, however, we wish to “note the narrowness of our holding.” State v. Lindquist, 869 N.W.2d 863, 876 (Minn. 2015). We adopt only the Davis good-faith exception, which “represents a small fragment of federal good-faith jurisprudence.” Id. Furthermore, the Davis good-faith exception we adopt applies only when the law enforcement officers’ action is in objectively reasonable good faith reliance on “binding appellate precedent” that “specifically authorizes a particular police practice.” Davis, 564 U.S. at 241, 131 S.Ct. 2419. Persuasive precedent from other jurisdictions is not a sufficient basis for applying the Davis good-faith exception. Lindquist, 869 N.W.2d at 876. Nor does the Davis good-faith exception permit law enforcement officers to “extend the law to areas in which no precedent exists or the law is unsettled.” Id. at 876-77 (internal quotation marks omitted) (quoting Davis, 564 U.S. at 250-51, 131 S.Ct. 2419 (Sotomayor, J., concurring in the judgment)). Our holding today merely reflects the reality that the exclusionary rule does not serve its central purpose of deterring police misconduct “when applied to evidence obtained during a search conducted in reasonable reliance on binding precedent.” Id. at 877. We need not and do not here decide whether to embrace any of the other good-faith exceptions to the exclusionary rule the Supreme Court has adopted. Id.
Id. at 313.
Then, in Davidson, the Court adopted “a good-faith exception for the admission of evidence when a law enforcement officer has reasonably and in good faith conducted a search within the scope of a warrant the officer believes to be valid, but is later determined to be invalid solely because of a good-faith failure to comply with the affidavit requirement of Tennessee Code Annotated sections 40-6-103 and -104 and Tennessee Rule of Criminal Procedure 41(c)(1).” Davidson, 509 S.W.3d at 185-86. Again, the Court was careful to define the narrowness of the exception by holding that “we note that Rule 41(g), a procedural rule promulgated by this Court, does not divest this Court of its authority to decide whether a good-faith exception, or any other exception, should be adopted.” Id. (citing State v. Reynolds, 504 S.W.3d 283, 314-15, (Tenn. 2016)).
While the factual scenario in the instant matter would likely fall under an exception to the exclusionary rule in the federal courts, see Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009) (refusing to apply the exclusionary rule when law enforcement officers reasonably relied in good faith on a database managed by the police), our Supreme Court has not adopted that exception to the exclusionary rule. Moreover, because our Supreme Court meticulously defined the two narrowly tailored exceptions it has adopted, specifically holding that persuasive precedent from other jurisdictions is not a sufficient basis for applying the “binding appellate precedent” exception, see Reynolds, 504 S.W.3d at 313, we are precluded from extending the holding in Herring to the instant matter though it appears that the facts and circumstances are directly on point. Accordingly, the State is not entitled to relief.
As a friend said when I first moved to the South: Hide and watch. Yes, I think it’s inevitable that the Tennessee Supreme Court will do that, considering the change in personnel that defines jurisprudence rather than precedent.