CA11: After an illegal drug search, the exclusionary rule doesn’t apply to a § 1983 case

Plaintiffs were the target of a search warrant of their property which got suppressed in Georgia state court. Then they sued the cops, and qualified immunity was denied. The cops appealed, and the exclusionary was held inapplicable to the civil case. “We now join our sister circuits and hold that the exclusionary rule does not apply in a civil suit against police officers. The cost of applying the exclusionary rule in this context is significant: officers could be forced to pay damages based on an overly truncated version of the evidence. And the deterrence benefits are minuscule.” Black v. Wigington, 2016 U.S. App. LEXIS 1057 (11th Cir. Jan. 22, 2016):

The Blacks argue that the evidence from their trailer could not provide probable cause because it was obtained during an illegal search, but they wrongly assume that the exclusionary rule applies in this civil case. In a criminal case, a warrant based on evidence discovered during an illegal search might be invalid as “fruit of the poisonous tree.” See United States v. Karo, 468 U.S. 705, 719, 104 S. Ct. 3296, 3305-06 (1984). The fruit-of-the-poisonous-tree doctrine is a component of the exclusionary rule. United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir. 1990). But the exclusionary rule is not a “personal constitutional right” or a requirement of the Fourth Amendment; it is a “judicially created remedy” that is meant to prevent violations of the Fourth Amendment “through its deterrent effect.” United States v. Calandra, 414 U.S. 338, 347-48, 94 S. Ct. 613, 619-20 (1974). Because the exclusionary rule “exacts a heavy toll on both the judicial system and society at large” by “requir[ing] courts to ignore reliable, trustworthy evidence,” Davis v. United States, ___ U.S. ___, 131 S. Ct. 2419, 2427 (2011), the rule does not apply unless “its deterrence benefits outweigh its ‘substantial social costs,'” Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S. Ct. 2014, 2019 (1998) (quoting United States v. Leon, 468 U.S. 897, 907, 104 S. Ct. 3405, 3412 (1984)). The Supreme Court has never held that the benefits of the exclusionary rule outweigh its costs in a civil case. See INS v. Lopez-Mendoza, 468 U.S. 1032, 1041, 104 S. Ct. 3479, 3485 (1984); United States v. Janis, 428 U.S. 433, 447, 96 S. Ct. 3021, 3029 (1976). And our predecessor court has held that the exclusionary rule did not apply in a civil suit against police officers, see Jonas v. City of Atlanta, 647 F.2d 580, 587-88 (5th Cir. Unit B June 1981), abrogated in part on other grounds by Lindsey v. Storey, 936 F.2d 554 (11th Cir. 1991), although it did not completely foreclose the possibility that the rule could apply in some contexts, see id. at 588 n.12. Two of our sister circuits, however, have held that the exclusionary rule and the fruit-of-the-poisonous-tree doctrine never apply in a civil suit against police officers. See Townes v. City of New York, 176 F.3d 138, 145 (2d Cir. 1999); Wren v. Towe, 130 F.3d 1154, 1158 (5th Cir. 1997).

We now join our sister circuits and hold that the exclusionary rule does not apply in a civil suit against police officers. The cost of applying the exclusionary rule in this context is significant: officers could be forced to pay damages based on an overly truncated version of the evidence. And the deterrence benefits are miniscule. Police officers are already deterred from violating the Fourth Amendment because the evidence that they find during an illegal search or seizure cannot be used in a criminal prosecution—the primary “concern and duty” of the police. Jonas, 647 F.2d at 588; see also Janis, 428 U.S. at 453, 96 S. Ct. at 3032 (“If the exclusionary rule is the ‘strong medicine’ that its proponents claim it to be, then its use [in criminal trials] must be assumed to be a substantial and efficient deterrent.”). Moreover, plaintiffs can still sue a police officer for the illegal search or seizure, regardless whether the officers can rely on illegally obtained evidence to defend themselves against other types of claims. This threat of civil liability will adequately deter police officers from violating the Fourth Amendment, whether or not the exclusionary rule applies in civil cases. See Hudson v. Michigan, 547 U.S. 586, 597-98, 126 S. Ct. 2159, 2167-68 (2006). The “additional marginal deterrence” of applying the exclusionary rule in this context “would not outweigh the societal cost of excluding relevant evidence and decreasing the possibility of obtaining accurate factual findings.” Jonas, 647 F.2d at 588. And we see no difference between applying the exclusionary rule and preventing an officer from proving probable cause based on evidence obtained during an illegal search. “Exclusion of the evidence found by [the officers] on the basis that they had no legal right to search the [area] would, in effect, be an application of the exclusionary rule to this case. Such an application would be inappropriate.” Wren, 130 F.3d at 1158. Accordingly, the officers can rely on the evidence that they found in the Blacks’ trailer to prove that the arrest warrants were supported by probable cause.

The Blacks complain that the officers forfeited their argument about the inapplicability of the exclusionary rule by not raising it below, but we disagree. In the district court, the officers argued that they had probable cause to arrest the Blacks. The officers’ argument about the inapplicability of the exclusionary rule is “not a new claim . . . but a new argument to support what has been [their] consistent claim” that the arrest warrants were supported by probable cause. Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 379, 115 S. Ct. 961, 965 (1995). “Although new claims or issues may not be raised, new arguments relating to preserved claims may be reviewed on appeal.” Pugliese v. Pukka Dev., Inc., 550 F.3d 1299, 1304 n.3 (11th Cir. 2008). And the parties have fully briefed and argued the question of whether the exclusionary rule applies.