S.D.N.Y.: Negligence in regognizing defendant’s objection to girlfriend’s consent didn’t lead to suppression

Defendant’s girlfriend consented to a search of their place, but defendant was present and objected under Randolph, except the officer’s didn’t hear him during the noise of the arrest (and neither did she). Since the officers were, at worst, just negligent, the court would not apply the exclusionary rule since the Second Circuit’s rule is that Herring may apply even when not attenuated. United States v. Smith, 2012 U.S. Dist. LEXIS 68054 (S.D. N.Y. May 15, 2012):

In this case, the benefits of deterrence are marginal. As the Herring Court stated, “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” 555 U.S. at 144. The Court has credited the officers’ testimony that they did not deliberately disregard Smith’s refusal to consent to a search, but rather did not hear Smith make a statement to that effect, (Tr. 77:7-78:3.) Their failure to hear him constituted, at the most, an isolated instance of negligence; there was no evidence that their conduct rose to the level of deliberate or reckless conduct, or gross, recurring, or systemic negligence. The evidence suggested only that, in the midst of the noise and confusion that ensued during the arrest, the officers simply did not hear Smith, just as Smith’s girlfriend did not hear him. On those facts, the officers reasonably believed that they were authorized to search the Apartment after obtaining the consent of Smith’s girlfriend.

Smith argues that exclusion of the evidence has deterrent value insofar as suppression would “encourage[e] arresting officers to pay attention to a defendant’s assertion of rights.” (Def.’s Supplemental Mem. at 6.) Although suppression may hypothetically have this effect, such deterrence is insufficient to warrant application of the exclusionary rule: “Even assuming that the rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.” United States v. Leon, 468 U.S. 897, 919, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984). As noted, in light of all the circumstances, the officers’ reliance on Smith’s girlfriend’s consent was objectively reasonable.