Tennessee finally adopts the good faith exception under Herring

Tennessee finally adopts the good faith exception. State v. McElrath, 2019 Tenn. LEXIS 100 (Mar. 12, 2019) (concurring-dissenting 1; concurring-dissenting 2):

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.

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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).

5. Application

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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