MO erroneously suggests bad faith for exclusionary rule requires pattern and practice evidence

The question of consent from a disturbed and hallucinating man is moot–the state relies on exigent circumstances. In the process, however, the court suggests that defendant’s argument the police acted with bad faith might require pattern and practice evidence of the entire state, which is wholly wrong. In § 1983 cases, pattern and practice is really hard to prove, and it takes years of data, like in the NYC stop and frisk case. Bad faith in one case might be somewhat evident (if you can plow through the usual litany of testimony about cause for the stop and subsequent search) but it shouldn’t be impossible. Otherwise it’s like Oregon v. Kennedy, a standard in name only, impossible for anybody to meet. Under the Fourth Amendment, that’s just not the law. State v. Pierce, 2018 Mo. LEXIS 237 (June 12, 2018):

Pierce argues application of the exclusionary rule is warranted in this case because the officers acted deliberately, recklessly, or with gross negligence in conducting a search based on the consent of a man who was emotionally disturbed and had been hallucinating. But regardless of whether Pierce voluntarily consented, the circumstances do not warrant application of the exclusionary rule because there was no indication the officers had knowledge, or should be charged with knowledge, that the search was unconstitutional—i.e., there is no indication they acted in bad faith. As stated above, this case could fall into the good-faith category or, at worst, the isolated-negligence category. There is no indication this police department (or police, in general, in this State) routinely rely on the consent of those who are emotionally or mentally disturbed in an effort to conduct warrantless searches.

“[I]solated, nonrecurring police negligence … lacks the culpability required to justify the harsh sanction of exclusion.” Id. at 239 (internal quotation marks omitted). The officers’ actions in this case were not the type of deliberate police practices that would lead to meaningful deterrence. Accordingly, the circuit court did not err in overruling Pierce’s motion to suppress evidence.

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