D.Mont.: Even with a clear Fourth Amendment violation, court has to analyze deterrence of the officers

Police had consent from a roommate to enter the apartment, but defendant was asleep, and the officers had no consent to enter his bedroom. Therefore, the search of the bedroom violated the Fourth Amendment. Still, under Herring, the court has to determine whether exclusion is justified, and it is. United States v. Wohlmaker, 2012 U.S. Dist. LEXIS 103069 (D. Mont. July 24, 2012):

Where police act in objectively reasonable good-faith belief that their conduct is lawful, based on a statute, case law, a warrant, or paperwork that is later found to be incorrect or to violate the Fourth Amendment, the exclusionary rule does not apply because the deterrent value is low. Davis, 131 S. Ct. at 2427-28 (citing cases involving good-faith reliance). On the other hand, where the police deliberately and flagrantly violate the Fourth Amendment, suppression does have a deterrent effect which may outweigh its costs. Herring, 555 U.S. at 143-144. The standard is objective, not subjective, but an officer’s knowledge and experience may be considered. Id. at 145. “It is the government’s burden to show that evidence is not ‘fruit of the poisonous tree.'” United States v. Shetler, 665 F.3d 1150, 1157 (9th Cir. 2011). In this case such a showing was not made.

Here, the officers did not rely on any statute, case law, warrant, paperwork, consent, or other belief that would justify their intrusion into Wohlmaker’s bedroom. Case law unquestionably establishes that a person has a legitimate expectation of privacy in his own bedroom, and that only a person with apparent or actual authority may consent to a search of that bedroom. It is also firmly established that consent to search a house or apartment does not extend to others’ private bedrooms within that house, unless the consenting individual has joint access and control of the room. E.g. Mejia, 953 F.2d at 466. Nonetheless, the experienced officers in this case entered the bedroom they believed to be Wohlmaker’s without a warrant, without consent, and without exigent circumstances. They did not attempt to ask Ritchie for permission to enter Wohlmaker’s bedroom, and they did not ask if Ritchie had authority to give such consent. Nor did they attempt to wake Wohlmaker from the hallway to obtain his consent to enter.

The deterrence value of suppression in this case is clear, while the social costs of suppression are low. Wohlmaker could face other charges and has been released on his own recognizance for over a year. Police officers cannot justify peering in every private area of a shared home when consent has only been obtained to enter the common areas. Permitting such activity—which is in clear violation of the Fourth Amendment—would have a high social cost and impact on individuals’ legitimate expectation of privacy in their own bedrooms. Thus the evidence that directly and indirectly derived from the officers’ illegal intrusion must be suppressed.