State v. Oakes

598 A.2d 119, 157 Vt. 171

• Court: Supreme Court of Vermont
• Decided: September 6, 1991
• Docket: 89-506
• Status: Published

Opinions

Allen, C.J.

The issue presented on appeal to this Court is whether our state exclusionary rule for violations of Article 11 of the Vermont Constitution should be limited by the “good faith” exception articulated by the United States Supreme Court in United States v. Leon, 468 U.S. 897 (1984). We hold that it should not. Accordingly, the trial court’s denial of defendant’s suppression motion is reversed, and the cause is remanded.

On March 1, 1989, Detective Michael Colgan of the Bennington Police Department applied for and received a warrant to search the residence of defendant’s girl friend. That evening Detective Colgan and other officers executed the warrant. Their search uncovered a large plastic bag, inside of which were twelve smaller bags containing marijuana.

Defendant was charged with felony possession of marijuana under 18 V.S.A. § 4224(e)(1)(B) (repealed 1989). Prior to trial, defendant moved to suppress the evidence seized in the search on the ground that there had not been sufficient probable cause for issuance of the warrant, and consequently the search violated Chapter I, Article 11 of the Vermont Constitution¹ and the Fourth Amendment of the United States Constitution. At the hearing on defendant’s motion, the court concluded that under both federal and state law there was “not sufficient probable cause shown by the affidavit” accompanying the warrant application to authorize issuance of the warrant. Nevertheless, the court went on to deny defendant’s motion to suppress. The court, finding that Detective Colgan had acted in good faith, held the evidence admissible despite the Fourth Amendment violation because of the good faith exception to the federal exclusionary rule crafted in Leon. It also held that the Article 11 violation likewise did not require exclusion where the officer had acted in good faith.

Defendant moved for and was granted permission to appeal the court’s denial of his suppression motion. His appeal rests solely on the proper construction of our state exclusionary rule for Article 11 violations. We have, however, reviewed the court’s determination that the affidavit accompanying the warrant application did not constitute sufficient probable cause for issuance of the warrant. We agree with this determination.

A.

This Court has adopted an exclusionary rule for violations of the Vermont Constitution.² “Evidence obtained in violation of the Vermont Constitution, or as the result of a violation, cannot be admitted at trial as a matter of state law.” State v. Badger, 141 Vt. 430, 452-53, 450 A.2d 336, 349 (1982). This was not done under compulsion of Mapp v. Ohio, 367 U.S. 643 (1961), which worked only to extend to state courts an exclusionary rule for federal constitutional violations. Id. at 655. Rather, a state exclusionary rule was adopted because “[introduction of [illegally obtained] evidence at trial eviscerates our most sacred rights, impinges on individual privacy, perverts our judicial process, distorts any notion of fairness, and encourages official misconduct.” Badger, 141 Vt. at 453, 450 A.2d at 349. The State now invites us to follow the Supreme Court’s holding in Leon and except from our state exclusionary rule evidence seized by a police officer in objectively reasonable reliance on a subsequently invalidated warrant — the so-called “good faith” exception to the exclusionary rule. We decline the invitation.³

The United States Supreme Court has distinguished between the rights guaranteed an individual by the Fourth Amendment and the remedy adopted to effectuate those rights. In the thirty years following Mapp, a majority of the Supreme -Court has consistently treated the federal exclusionary rule as a remedy distinct from the constitutional right itself. As the Supreme Court asserted in Leon, the exclusionary rule “operates as ‘a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.”’ 468 U.S. at 906 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)). When the Supreme Court addresses the scope of the federal exclusionary rule, it does not focus on an individual’s constitutional rights; rather it weighs the additional deterrent effect on official misconduct that excluding the unlawfully obtained evidence will achieve against the cost of excluding this evidence.⁴

We need not, and do not, express an opinion today on the validity of drawing such a distinction between the rights guaranteed by Article 11 and our state exclusionary rule. Even if our exclusionary rule were no more than a judicially created remedy, this Court would maintain the obligation to ensure that the remedy effectuates Article 11 rights. We point out the distinction made by the Supreme Court simply to clarify the amount of deference we will accord its decision in Leon. By treating the federal exclusionary rule as a judicially created remedy rather than a constitutional right, the Supreme Court’s decision focuses, not on interpretation of the federal constitution, but on an attempted empirical assessment of the costs and benefits of creating a good faith exception to the federal exclusionary rule. This empirical assessment can inform this Court’s decision on the good faith exception only to the extent that it is persuasive. If the assessment is flawed, this Court cannot simply accept the conclusion the Supreme Court draws from it. To do so would be contrary to our obligation to ensure that our state exclusionary rule effectuates Article 11 rights, and would disserve those rights.

B.

In Leon the Supreme Court fashioned a good faith exception to the exclusionary rule by “concluding] that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U.S. at 922.

The Court’s treatment of the “substantial costs” of not adopting a good faith exception is summary:

The substantial social costs exacted by the exclusionary rule for the vindication of Fourth Amendment rights have long been a source of concern. ... An objectionable collateral consequence of this interference with the criminal justice system’s truth-finding function is that some guilty defendants may go free or receive reduced sentences as a result of favorable plea bargains.

Id. at 907. In a footnote the Court concedes that many researchers “have concluded that the impact of the exclusionary rule is insubstantial.” Id. at 907 n.6. Yet the Court answers, without citing empirical data, that the researchers’ focus on nonprosecution and nonconviction of felony cases “mask a large absolute number of felons who are released because the cases against them were based in part on illegal searches or seizures.” Id.

The Court’s treatment of the “marginal or nonexistent benefits” of not adopting a good faith exception is more extensive. Taking the possible benefit of the exclusionary rule solely to be deterrence of official misconduct, see id. at 906, 921 n.22, the Court attempts to assess the deterrent effect that excluding evidence in this situation will have upon the officials involved: the police and the judicial authorities who issue warrants.

As to the police, the Court reasons that where the individual officer’s reliance on a subsequently invalidated warrant is objectively reasonable, there is nothing to deter. “[W]here the officer’s conduct is objectively reasonable, ‘excluding the evidence will not further the ends of the exclusionary rule in any appreciable way; for it is painfully apparent that . . . the officer is acting as a reasonable officer would and should act in similar circumstances.’” Id. at 919-20 (quoting Stone v. Powell, 428 U.S. 465, 539-40 (1976) (White, J., dissenting)). The Court dismisses as “speculative” arguments that applying the exclusionary rule in this situation would lessen the incentive for officers to prematurely approach judicial authorities with inadequate facts in the hope that they will get by, and would discourage “magistrate shopping.” Id. at 918.

As to the judicial authorities who issue warrants, the Court proceeds from the premise that the exclusionary rule does not apply to them to the conclusion that it has no deterrent effect on them.

To the extent that proponents of exclusion rely on its behavioral effects on judges and magistrates in these areas, their reliance is misplaced. First, the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates. Second, there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.

Third, and most important, we discern no basis, and are offered none, for believing that exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate.

Id. at 916.

C.

Criticism of the Supreme Court’s cost-benefit approach to the exclusionary rule has been extensive. Voiced by commentators prior to Leon,5 the arguments were forcefully marshalled in Justice Brennan’s dissenting opinion. 468 U.S. at 928, 948-59 (Brennan, J., dissenting).⁶ A new wave of criticism followed issuance of Leon,7 and has been used by the highest courts of states in their rejection of a good faith exception to their exclusionary rules.⁸ We do not find it necessary to recite the full content of this criticism. Consideration of a few basic strands is sufficient to create substantial doubt concerning the Supreme Court’s conclusions.

First, there is an inconsistency between the Court’s labelling the exclusionary rule’s costs as “substantial” and the Court’s concession that many of the researchers upon whom it relies have concluded that the costs are “insubstantial.” Leon, 468 U.S. at 908 n.6. The Court cites to the empirical data in Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 Am. B. Found. Res. J. 611, 621, which suggests that the cumulative effect of the exclusionary rule is the nonprosecution or nonconviction of between 0.6% and 2.35% of felony arrests.⁹ Davies, however, does not interpret this data as revealing substantial costs.

While those loss rates should not be viewed as trivial, they do not amount to a “major impact” on criminal justice — especially when one considers that these loss rates relate to arrests and that many such lost arrests would have been dropped or downgraded to misdemeanors for other reasons even if there were no illegal search problems. Indeed ... it is likely that in some proportion of these “lost” arrests, the police were not concerned with making arrests that would “stick.” . . .

. . . All the available evidence . . . indicates that the general level of the rule’s effects on criminal prosecutions is marginal at most.

Id. at 621-22 (emphasis in original).¹⁰ Davies’ assessment does not justify the conclusion that the costs of the exclusionary rule are substantial.¹¹ Although- there are no empirical data on the exclusionary rule’s effect in Vermont, we note that from the time of the Mapp decision until our decision today, this Court has only once overturned a conviction on the basis of a warrant lacking probable cause. See State v. Rocheleau, 131 Vt. 563, 567-69, 313 A.2d 33, 37-38 (1973).

More fundamentally, we are hesitant to label the nonprosecution or nonconviction of felony arrests a cost of the exclusionary rule as opposed to a cost of the constitutional prohibition itself. As former Justice Stewart wrote:

Much of the criticism leveled at the exclusionary rule is misdirected; it is more properly directed at the fourth amendment itself. It is true that, as many observers have charged, the effect of the rule is to deprive the courts of extremely relevant, often direct evidence of the guilt of the defendant. But these same critics sometimes fail to acknowledge that, in many instances, the same extremely relevant evidence would not have been obtained had the police officer complied with the commands of the fourth amendment in the first place.

. . . The exclusionary rule places no limitations on the actions of the police. The fourth amendment does.

Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search- and-Seizure Cases, 83 Colum. L. Rev. 1365, 1392-93 (1983).¹² The same can be said about the relative costs of our state exclusionary rule and Article ll’s prohibition on unlawful searches and seizures.

There have also been substantial doubts raised concerning the Court’s conclusion that excluding evidence seized by a police officer in objectively reasonable reliance on a subsequently invalidated warrant would be of “marginal or nonexistent” benefit in promoting compliance with the Constitution. The Court’s notion that there is nothing to deter if a police officer has acted with objective reasonableness is attractively simple. “Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” Leon, 468 U.S. at 921. The exclusionary rule’s deterrent effect, however, does not rest primarily on “penalizing” an individual officer into future conformity with the Constitution. Rather, it rests on “its tendency to promote institutional compliance with Fourth Amendment requirements on the part of law enforcement agencies generally.” Id. at 953 (Brennan, J., dissenting). It creates an incentive for the police as an institution to train its officers to conform with the Constitution. Consequently, the important question is not whether it is of any benefit to “penalize” the objectively reasonable conduct of an individual officer, but rather whether failure to do so will lower the incentive for institutional compliance. The Court gives no answer to this question.

Nor does the Court effectively address concerns that adoption of a good faith exception will create an incentive for future inadequate presentations and magistrate shopping. The Court rejects these concerns as “speculative.” Id. at 918. Yet this is no answer, because an assertion that such an incentive will not be created is also “speculative” in the absence of empirical data. These concerns do have the force of logic behind them. Because the good faith exception raises the value of having a warrant and decreases the subsequent judicial inquiry into the basis for the warrant, the benefits to be gained from magistrate shopping and inadequate presentations are heightened, increasing the incentive to engage in such conduct. See id. at 957 (Brennan, J., dissenting) (“[T]he good-faith exception will encourage police to provide only the bare minimum of information in future warrant applications.”); State v. Marsala, 216 Conn. 150, 169, 579 A.2d 58, 67 (1990) (“the good faith exception would encourage some police officers to expend less effort in establishing the necessary probable cause to search and more effort in locating a judge who might be less exacting than some others”); Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 Am. Crim. L. Rev. 85, 109 (1984) (under good faith exception, “police need concern themselves only with getting a warrant and not with getting a warrant that will hold up on review”).

The Court’s treatment of the exclusionary rule’s effect on the judicial authorities who issue warrants is also suspect. Under Leon’s good faith exception, the admissibility of evidence seized by a police officer in reliance upon a warrant will hinge upon the objective reasonableness of this reliance, not upon the lawfulness of the warrant. The good faith exception effectively shields the issuing judicial officer’s probable cause determination from subsequent judicial review. The Court suggests that this “may well increase the care with which magistrates scrutinize warrant applications,” Leon, 468 U.S. at 917 n.18, as it would increase the importance of their task. The obvious rejoinder to this suggestion is that less care may be taken precisely because their determinations will not be subject to review. A further consequence of removing review of the issuing judicial officer’s probable cause determination is that there will be less guidance to these judicial officers as to what constitutes sufficient probable cause.¹³ Without such guidance, the incidence of mistakes by issuing judicial officers will increase. See Marsala, 216 Conn. at 169-70, 579 A.2d at 67 (“[0]ur practice of declining to address doubtful constitutional issues unless they are essential to the disposition of a case would preclude our consideration of probable cause beyond reviewing whether an officer had an ‘objectively reasonable’ belief in its existence.”). As stated in Wasserstrom & Mertens, supra, at 112:

[I]t is in close fourth amendment cases that new law is made and guidance to magistrates and the police is most needed. Close cases are both the hardest to decide and the easiest to dispose of under the good faith exception; in such cases the officer’s objective good faith is clearest. Thus, these are the cases that defendants are least likely to litigate and the courts most likely to dispose of without reaching the merits of the fourth amendment claim.

The ultimate criticism of the Court’s cost-benefit analysis in Leon is that it is attempting to do what at this time cannot be done. There simply are insufficient empirical data for the costs and benefits of a good faith exception to be accurately assessed. The benefits of the exclusionary rule are hard to measure because they consist of “non-events.” “Police compliance with the exclusionary rule produces a non-event which is not directly observable — it consists of not conducting an illegal search.” Morris, The Exclusionary Rule, Deterrence and Posner’s Economic Analysis of Law, 57 Wash. L. Rev. 647, 653 (1982) (emphasis in original); see United States v. Janis, 428 U.S. 433, 453 (1976) (“‘Since as a practical matter it is never easy to prove a negative, it is hardly likely that conclusive factual data could ever be assembled.’”) (quoting Elkins v. United States, 364 U.S. 206, 218 (1960)). As demonstrated above, there are conflicting interpretations concerning these benefits and the rule’s costs. All of these measurement difficulties are further exacerbated when attention turns from the costs and benefits of the exclusionary rule in general to the costs and benefits of an untested exception to the exclusionary rule.

Even though confronted with these measurement difficulties, the Court remains within its “redoubt of empiricism.” Leon, 468 U.S. at 943 (Brennan, J., dissenting). Yet empirical pronouncements without empirical support are not persuasive. Because of the inability at this time to measure accurately the costs and benefits of the exclusionary rule, see id. at 942 (Brennan, J., dissenting), we do not find persuasive the Court’s conclusions in Leon concerning the costs and benefits of a good faith exception to the exclusionary rule.

D.

The good faith exception adopted in Leon represents on its face a significant limitation on the exclusionary rule. “Despite the Court’s gradual compression of the scope of the exclusionary rule, no decision prior to United States v. Leon expressly contradicted the established principle that evidence illegally obtained was inadmissible in the government’s case-in-chief in criminal prosecutions.” State v. Novembrino, 105 N.J. 95, 138-39, 519 A.2d 820, 845 (1987). Further, it is clear that the exception was intended by the Court to be the rule, not the exception, where a warrant, though invalid, exists. “[Suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Leon, 468 U.S. at 918. “Our conclusion is that the rule’s purposes will only rarely be served by applying it in such circumstances.” Id. at 926.

We will not impose such a significant limitation upon our state exclusionary rule on the basis of the Court’s cost-benefit analysis in Leon. Nor have we been persuaded that there are other compelling reasons to do so. See State v. Brunelle, 148 Vt. 347, 353, 534 A.2d 198, 203 (1987) (fashioning exception to state exclusionary rule where “defendant has testified during direct examination in a manner contradictory to the suppressed evidence”). The New Jersey Supreme Court, in rejecting Leon’s application to its state exclusionary rule, concluded by stating that:

We see no need in New Jersey to experiment with the fundamental rights protected by the fourth-amendment counterpart of our State Constitution. We will not subject the procedures that vindicate the fundamental rights guaranteed by... our State Constitution — procedures that have not diluted the effectiveness of our criminal justice system — to the uncertain effects that we believe will inevitably accompany the good-faith exception to the federal exclusionary rule.

Novembrino, 105 N.J. at 159, 519 A.2d at 857. We likewise decline to subject the exclusionary rule we have adopted for violations of the Vermont Constitution to such uncertain effects.

Accordingly, the trial court’s denial of defendant’s suppression motion is reversed.

Reversed and remanded.

1 Chapter I, Article 11 provides:

That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby by any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

2 The exclusionary rule for a violation of V.R.Cr.P. 41(c)’s probable cause standard is the same as that for a violation of Article 11. State v. Ballou, 148 Vt. 427, 433 n.2, 535 A.2d 1280, 1283 n.2 (1987).

3 We are not alone in our rejection of a good faith exception. States rejecting the exception on state constitutional grounds include: State v. Marsala, 216 Conn. 150, 579 A.2d 58 passim (1990); State v. Novembrino, 105 N.J. 95, 519 A.2d 820 passim (1987); People v. Bigelow, 66 N.Y.2d 417, 427, 488 N.E.2d 451, 458, 497 N.Y.S.2d 630, 637 (1985); State v. Carter, 322 N.C. 709, 370 S.E.2d 553 passim (1988); Commonwealth v. Edmunds, 526 Pa. 374, 586 A.2d 887 passim (1991); see also Stringer v. State, 491 So. 2d 837, 841 (Miss. 1986) (Robertson, J., concurring). Massachusetts has rejected the exception on statutory grounds. Commonwealth v. Upton, 394 Mass. 363, 370 n.5, 476 N.E.2d 548, 554 n.5 (1985).

4 See, e.g., United States v. Havens, 446 U.S. 620, 627-28 (1980) (incremental furthering of deterrence does not justify excluding unlawfully obtained evidence offered to impeach defendant’s testimony during cross-examination); Stone v. Powell, 428 U.S. 465, 493-94 (1976) (further deterrent effect of allowing federal habeas corpus review of state court convictions on unlawful search and seizure grounds is outweighed by costs); United States v. Janis, 428 U.S. 433, 453-54 (1976) (exclusion of unlawfully seized evidence from federal civil proceedings not shown to have an additional deterrent effect sufficient to outweigh costs); United States v. Calandra, 414 U.S. 338, 351-52 (1974) (incremental deterrent effect of extending exclusionary rule to grand jury proceedings does not outweigh costs of impeding grand jury’s role); see also Schrock & Welsh, Reconsidering the Constitutional Common Law, 91 Harv. L. Rev. 1117, 1118-19 (1978) (finding the Supreme Court’s exclusionary rule jurisprudence to be a “subconstitutional calculation of costs and benefits,” and labelling the progression of its decisions a “process of deconstitutionalization”).

5 Davies, A Hard Look at What We Know (and Still Need to Learn) About the “Costs” of the Exclusionary Rule: The NIJ Study and Other Studies of “Lost” Arrests, 1983 Am. B. Found. Res. J. 611; Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a “Principled Basis”Rather Than an “Empirical Proposition”?, 16 Creighton L. Rev. 565 (1983); Mertens & Wasserstrom, The Good Faith Exception to the Exclusionary Rule: Deregulating the Police and Derailing the Law, 70 Geo. L. J. 365 (1981); Nardulli, The Societal Cost of the Exclusionary Rule: An Empirical Assessment, 1983 Am. B. Found. Res. J. 585; Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and Seizure Cases, 83 Colum. L. Rev. 1365 (1983).

6 Justice Brennan begins his dissent with a perceptive assessment of the majority’s analysis.

The Court seeks to justify [its] result on the ground that the “costs” of adhering to the exclusionary rule in cases like those before us exceed the “benefits.” But the language of deterrence and of cost/benefit analysis, if used indiscriminately, can have a narcotic effect. It creates an illusion of technical precision and ineluctability. It suggests that not only constitutional principle but also empirical data support the majority’s result. When the Court’s analysis is examined carefully, however, it is clear that we have not been treated to an honest assessment of the merits of the exclusionary rule, but have instead been drawn into a curious world where the “costs” of excluding illegally obtained evidence loom to exaggerated heights and where the “benefits” of such exclusion are made to disappear with a mere wave of the hand.

United States v. Leon, 468 U.S. 897, 929 (1984) (Brennan, J., dissenting).

7 1 W. LaFave, Search and Seizure § 1.3 (2d ed. 1987); Alschuhler, “Close Enough for Government Work”: The Exclusionary Rule After Leon, 1984 Sup. Ct. Rev. 309; LaFave, “The Seductive Call of Expediency": United States v. Leon, Its Rationale and Ramifications, 1984 U. Ill. L. Rev. 895; Wasserstrom & Mertens, The Exclusionary Rule on the Scaffold: But Was It a Fair Trial?, 22 Am. Crim. L. Rev. 85 (1984).

8 State v. Marsala, 216 Conn. at 160-71, 579 A.2d at 63-68; State v. Novembrino, 105 N.J. at 152-54, 519 A.2d at 853-54.

9 Davies’ research has been reinforced by other studies. See Nardulli, supra, note 5, at 598 Table 8, 606 (successful motions to suppress physical evidence occurred in only 0.7% of cases in jurisdictions studied); Uchida & Bynum, Search Warrants, Motions to Suppress and “Lost Cases:” The Effects of the Exclusionary Rule in Seven Jurisdictions, 81 J. Crim. L. & Criminology 1034, 1064 (1991) (in jurisdictions studied, where search warrant was obtained only 1.5% of defendants — none of whom were charged with violent crime — went free as a result of a successful motion to suppress physical evidence).

10 See also Uchida & Bynum, supra, n.9, at 1066:

Our study also provides further evidence that the “cost” of the exclusionary rule in lost eases is slight when the police obtain a search warrant. While critics of the exclusionary rule argue that it imposes a high cost on society by depriving the courts of reliable evidence and allowing criminals freedom, we have found that, in fact, few criminals are freed, and when they are, their crimes are not serious. Thus, the cost to society is limited.

11 As others have pointed out, Davies’ data represent the costs of the exclusionary rule in all illegal search eases, not just those cases where the police acted in objectively reasonable reliance on a subsequently invalidated warrant. The costs of the exclusionary rule in this particular scenario are necessarily less than the costs of the exclusionary rule in all illegal search cases. As Justice Brennan observed:

The Court... mistakenly weighs the aggregated costs of exclusion in all cases, irrespective of the circumstances that led to exclusion, against the potential benefits associated with only those cases in which evidence is excluded because police reasonably but mistakenly believe that their conduct does not violate the Fourth Amendment. When such faulty scales are used, it is little wonder that the balance tips in favor of restricting the application of the rule.

Leon, 468 U.S. at 951 (Brennan, J., dissenting) (cross-references omitted) (emphasis in original); see also 1 W. LaFave, supra, n.7, § 1.3(c), at 52-53; Wasserstrom & Mertens, supra, n.7, at 103-04.

12 See also Leon, 468 U.S. at 941 (Brennan, J., dissenting) (“it is not the exclusionary rule, but the Amendment itself that has imposed this cost”); 1 W. LaFave, supra, n.7, § 1.3(c), at 53 (“The [Leon] majority consistently and repeatedly refers to the costs of the exclusionary rule as if they were somehow a matter quite distinct from the Fourth Amendment itself. But this simply is not the case .. . .”).

13 The Court protests that nothing will stop reviewing courts from ruling on the legality of the warrant before moving on to a determination of the officer’s good faith. Leon, 468 U.S. at 924-25. The answer to this protest lies in the reality of our court system today. “[I]t is unlikely that overburdened trial and appellate courts will take the time and effort to write advisory opinions on fourth amendment law when they can just .as easily admit the evidence under the good faith exception.” Wasserstrom & Mertens, supra, n.7, at 111.