In this case, the State urges this Court to adopt the good-faith exception set forth by the United States Supreme Court in Herring. This Court has not previously had an opportunity to consider whether to apply Herring in Tennessee, but the facts of this case squarely present the question of whether it is prudent for us to do so at this time.
. . .
4. Tennessee’s Good-Faith Exception
Despite having opportunities to do so, Tennessee did not adopt a good-faith exception to the exclusionary rule until 2016. See State v. Keith, 978 S.W.2d 861, 871 (Tenn. 1998) (Birch, J., dissenting) (noting that Tennessee had not yet adopted the good-faith exception of Leon); State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000) (expressing reticence about incorporating a good-faith exception into Tennessee’s jurisprudence and instead deciding the admissibility of a confession on Fourth Amendment grounds).
In 2016, this Court was squarely presented with an opportunity to decide whether to apply the Davis good-faith exception in Tennessee. State v. Reynolds, 504 S.W.3d 283 (Tenn. 2016). In Reynolds, an officer ordered a warrantless blood draw, pursuant to Tennessee’s implied consent law, from a defendant who was involved in a motor vehicle fatality and who he reasonably believed to have been intoxicated at the time. Id. at 289. Although at the time of the defendant’s vehicle collision, United States Supreme Court precedent permitted warrantless blood draws in DUI cases based on the exigent circumstances created by the rapid dissipation of alcohol in the blood stream, Schmerber v. California, 384 U.S. 757, 770-71, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966), the trial court nonetheless suppressed the evidence on other grounds, Reynolds, 504 S.W.3d at 295.
The State successfully appealed to the Court of Criminal Appeals, which stated that even if the implied consent law were found to be unconstitutional, Tennessee should adopt the good-faith exception set forth in the United States Supreme Court’s decision in Davis v. United States, which held that “[e]vidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.” Davis, 564 U.S. at 241. This Court granted the defendant’s application for permission to appeal and adopted the good-faith exception to the state exclusionary rule as described in Davis, explaining that this adoption was a logical extension because “we have already recognized and applied other doctrines that are in effect exceptions to the exclusionary rule.” Reynolds, 504 S.W.3d at 313 (citing State v. Carter, 160 S.W.3d 526, 532-33 (Tenn. 2005); State v. Huddleston, 924 S.W.2d 666, 674-75 (Tenn. 1996)). Notably, however, this Court left open other applications of the good-faith exception, stating, “We adopt only the Davis good-faith exception, which ‘represents a small fragment of federal good-faith jurisprudence.'” Id. (quoting State v. Lindquist, 869 N.W.2d 863, 876 (Minn. 2015)).
This Court next considered, in three separate cases, the good-faith exception as it pertained to technical flaws in otherwise valid search warrants. In State v. Davidson, 509 S.W.3d 156, 184 (Tenn. 2016), the investigating officer prepared an affidavit and search warrant for the search of the defendant’s residence but inadvertently failed to change the printer settings from “letter” to “legal” size, which resulted in the bottom three inches, including the signature line of the affiant, being omitted from the affidavit. In the judge’s chambers, both the judge and the investigator signed the warrant, but no one noticed the omission of the signature line for the affiant. Id. The Davidson Court explained that despite the technical deficiency on the warrant, it nonetheless “passed constitutional muster” because “[t]he Fourth Amendment’s oath or affirmation requirement was satisfied when [the investigator] raised his right hand and swore to the truth of the facts in the unsigned affidavit.” Id. at 183. This Court adopted a good-faith exception to permit the admission of evidence obtained as a result of an officer’s reasonable and good faith reliance on a search warrant that he believed to be valid but was later determined to be invalid “solely because of a good-faith failure to comply with the affidavit requirement [of the Tennessee Code and the Tennessee Rules of Criminal Procedure].” Id. at 185-86.
Next, in Lowe, we held that “a good-faith clerical error that results in an inconsequential variation between the three copies of a search warrant required pursuant to Rule 41, in and of itself, does not entitle the moving party to suppression of the evidence collected pursuant to the warrant.” 552 S.W.3d at 859. Accordingly, we adopted a good-faith exception to the exclusionary rule under such circumstances. In State v. Daniel, we applied a good-faith exception to the technical requirement that the officer executing a search warrant leave a copy of the warrant with the person being searched “given the specific facts of this case in which the Defendant was aware of the blood draw and the fact that no property of the Defendant was seized as a result of the warrant which could later be returned.” 552 S.W.3d 832, 841 (Tenn. 2018).
We have reviewed cases from other jurisdictions that support both the State’s and the defendant’s positions in this case, as well as the development of the federal good-faith exception to the exclusionary rule and our own. In our view, having the issue squarely presented, it is appropriate at this point to adopt the good-faith exception set forth in Herring and to hold, as the United States Supreme Court did, “that when police mistakes are the result of negligence … rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not ‘pay its’ way.'” Herring, 555 U.S. at 147-48 (citation omitted). This is in keeping with our prior holdings clarifying that Tennessee’s search and seizure provisions are “identical in intent and purpose” with the United States Constitution’s Fourth Amendment. See, e.g., State v. Hawkins, 519 S.W.3d 1, 33 (Tenn. 2017); Christensen, 517 S.W.3d at 68; State v. Tuttle, 515 S.W.3d 282, 304 (Tenn. 2017); Davidson, 509 S.W.3d at 182; Reynolds, 504 S.W.3d at 303; State v. Willis, 496 S.W.3d 653, 719 (Tenn. 2016) (stating “that federal cases applying the Fourth Amendment should be regarded as ‘particularly persuasive'” (quoting State v. Hayes, 188 S.W.3d 505, 511 (Tenn. 2006))).
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—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
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—Shemaya, in the Thalmud
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
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—Mick Jagger & Keith Richards
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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