CA6: Raiding wrong house requires suppression

Officers had a warrant for 3171, and found two 3170s, on opposite sides of the street. They picked the 3170 that was occupied and told the occupants they had a warrant, but it was not 3171. The entry found a bunch of cocaine, and it had to be suppressed. This was not in any sense in good faith [my words]. The government argued that the exclusionary rule did not apply. “But so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretenses.” United States v. Shaw, 707 F.3d 666 (6th Cir. 2013) (2-1):

But that is not the key problem. No custom of law-enforcement training of which we are aware, and certainly no custom of Fourth Amendment law, allows an officer to give a false answer to the question “What right do you have to be here?” as a basis for staying put. Just as a lie about an address cannot supply the basis for entering a house, it cannot supply the basis for staying in a home once an occupant asks the officers what right they have to be there. Otherwise, an officer, when challenged over his right to enter a house, could say he had an arrest warrant when he did not. Or these officers, when asked to show the arrest warrant, could have produced a false arrest warrant, one with the wrong address. No one plausibly thinks that is permissible. See Bumper, 391 U.S. at 549-50. Why was this law-enforcement encounter any different? The government offers no good reason, and we cannot think of one on our own.

The officers, in short and in truth, had no right to enter the house based on a falsity and no right to stay there based on a falsity. That is all there is to it, or at least almost all. One other thing: There may be good candidates for taking a stand on the exclusionary rule, but this is not one of them. The government urges us not to exclude this evidence even if the officers violated the Fourth Amendment in obtaining it. Herring v. United States, 555 U.S. 135, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009), it is true, recognized that the exclusionary rule often is over-inclusive, requiring courts to suppress evidence even when officers have obtained it in good faith and even when suppression does not further the central premise of the rule: deterrence. Id. at 141. But so long as there is an exclusionary rule, it seems safe to say that it will apply to officers who enter and remain in a house based on false pretenses—one step removed from the “isolated negligence” at issue in Herring and another step removed from the “attenuated” link between the officer misconduct in Herring and the arrest there. Id. at 137. Shaw’s case is not Herring’s case.

The surprising part is that the trial judge and one dissenter bought into the exclusionary rule not even applying to raiding the wrong house.