Despite recent literature critiquing the validity of the doctrine of qualified immunity for public officials, at least two Fifth Circuit judges have endorsed applying the use of the familiar “objective reasonableness” standard in the criminal context, indicating the doctrine’s ongoing functionality.

The Panel Opinion

In U.S. v. Leonard, the per curiam panel held that the Circuit’s “close enough” good faith doctrine applied, such that suppression of evidence seized from a Defendant’s home was not appropriate.

The underlying facts indicated that officers responded to a report of a half naked, bloodied, and incoherent Leonard lying in a residential street, and, after learning that his nearby house had an open door and seeing signs of struggle inside, entered while announcing themselves. Upon entry, the officers saw marijuana plants, drug containers, and a gun. One officer obtained a warrant based on this entry, leading to the seizure of drugs, cash, and two firearms and, consequently, federal firearm charges. The district court suppressed this evidence under the judicially-created exclusionary rule.

The Fifth Circuit reversed, explaining that the exclusionary rule has “many exceptions”, including the “good faith exception,” which itself has several offshoots, including the Fifth Circuit’s “close enough” doctrine. Under this standard, evidence is admissible if the officer’s conduct that led to the information in the warrant affidavit was “close enough to the line of validity” that an objectively reasonable officer . . . would believe that the information” gathered “was not tainted by unconstitutional conduct.” Regardless of the actual definition of “close enough,” the panel explained that it was met based on the circumstances.

Concurring Opinion’s Proposal: Use “Objective Reasonableness” Standard from Qualified Immunity Cases to Determine if Evidence Should be Suppressed or Not

Judge Andrew S. Oldham, writing in concurrence and joined by Judge Cory T. Wilson, agreed that suppression was improper but took issue with the vagueness of the “close enough” standard. Instead, the concurrence would clarify that, whether an officer’s conduct is “close enough to the line of validity” that we will allow officers to rely on a valid warrant, even though it was obtained using unlawfully acquired information, should be determined using “objective reasonableness inquiry” applicable in qualified immunity cases.

Here, although the warrant itself was valid, the alleged problem is that the warrant was based on information that was unlawfully obtained. The concurrence explained the basis of the “close enough” doctrine as follows: “Good faith is an exception to the exclusionary rule. So if one of Leon’s exceptions to the good faith exception applies, the exclusionary rule applies, and evidence should be suppressed. So if an officer misleads the magistrate under Massi/Leon, the evidence should be suppressed.”

Instead of this “convoluted” analysis, Judge Oldham proposed that the same standard of objective reasonableness that defines the qualified immunity accorded an officer should define the “objectively reasonable officer” rule for purposes of exclusion of unlawfully obtained evidence. The borrowed “objective reasonableness” framework would both clarify the applicable standard and lead to more consistent results, by requiring criminal defendants to show that the officer who illegally discovered the information used to obtain a warrant violated clearly established law.

Takeaways

As explained in the concurrence, the exceptions, exceptions to the exceptions, and various offshoots that may be at issue in current exclusionary rule cases are cumbersome on all parties. Streamlining the analysis by using the qualified immunity standard of “objective reasonableness,” i.e., whether there was a violation of a constitutional right that was “clearly established at the time of the defendant’s alleged misconduct” would provide uniformity across the two doctrines and hold officers to the same standard in either context.

Further, the proposed use of the qualified immunity framework in this criminal context indicates its functionality, usefulness, and entrenchment in the legal landscape. Academic critiques aside, considering whether a constitutional right was violated, and whether such right was clearly established at the time of the alleged violation, provides a compelling framework for considering whether a remedy (whether criminal suppression or civil damages) should be awarded.