MOVING TARGETS: PLACING THE GOOD FAITH DOCTRINE IN THE CONTEXT OF FRAGMENTED POLICING

Introduction I. Herring in Context: Police Accountability in a Reality of Fragmentation A. Herring's Facts: Agency and Reliance B. Herring's Predecessors: The Good Faith Doctrine in Leon and Evans C. Herring's Uncertainties: The Debate on Herring's Application to Illegal Predicate Searches D. Herring's Silence: Implicitly Acknowledging Fragmentation II. Moving Targets: Authority and Accountability in Policing A. Policing in America: Plural, Multilateralized, Fragmented B. Fragmentation and the Problem of Accountability C. Concerns of Inefficiency and Abuse III. Untangling the Accountability Mess: Legal and Administrative Solutions A. Agent Identity's Importance to the Exclusionary Rule B. Struggling with Accountability: State Solutions for Fragmentation Problems 1. County-to-County State Warrants and the Federal Fundamental Test 2. Whose Affidavit? Curing Overbreadth C. Proposed Solution: Incorporating Agency Identity into the Good Faith Standard Conclusion INTRODUCTION Don't say that he's hypocritical; Say, rather, that he's apolitical. "Once the rockets are up, who cares where they come down? That's not my department, "says Wernher von Braun. Tom Lehrer, The Ballad of Wehrner von Braun The debate sparked by Herring v. United States (1) is a microcosm of the quintessential debate about the scope of the Fourth Amendment's exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. (2) The Good Faith Doctrine focuses on situations in which it is clear, in hindsight, that authority was wrongly exercised. Whether courts choose to suppress evidence to deter police from committing similar mistakes in the future reveals their position on the appropriate balance between efficiency and procedural justice, a balance well illustrated in Herbert Packer's classic book The Limits of the Criminal Sanction. (3) In the book, Packer provided two "ideal type" models of the criminal process: the Crime Control Model and the Due Process Model. (4) Crime control emphasizes an efficient criminal process through early determination of guilt by law enforcement agents. (5) The model requires substantial deference to police officers and prosecutors, the "gatekeepers" of the criminal process. (6) As a corollary, the model allows patience with their mistakes. (7) By contrast, the Due Process Model's main goal is preserving accuracy and avoiding the conviction of the innocent. (8) Under a due process paradigm, law enforcement discretion is seen as potentially biased (9) and is therefore carefully curtailed by constitutional review and procedural hurdles as a "quality control" mechanism. (10) Packer's models have been widely critiqued over the years. (11) Among the more convincing critiques is the notion that the models do not share an epistemological basis, that the Due Process Model relates largely to doctrinal and normative mandates, while the Crime Control Model is by nature a pragmatic description of the everyday management of law enforcement. (12) Scholars today widely acknowledge that the post-Warren Court's decisions reflect a pendulum swing toward crime control. The shift is explained in four main themes. (13) First, the post-Warren Court emphasized that the ultimate mission of the criminal justice system is convicting the guilty and ensuring that the innocent go free, rather than creating bright-line rules. The Court placed more emphasis on the defendant's actual guilt--a practical application of Packer's "presumption of guilt." (14) Second, the Court shifted from relying on clear standards of action to allowing an assessment of police activities through a "totality of the circumstances" test. (15) Third, the post-Warren Court expressed more deference to police discretion, a recurring theme of acknowledging that police act in good faith under difficult conditions. …