In Davis v. United States, there was an extended discussion of the interaction between the exclusionary rule, the good faith exception, and social cost.
In a line of cases beginning with United States v. Leon, 468 U. S. 897, we also recali- brated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. Id., at 909, 911.
The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpabil- ity of the law enforcement conduct” at issue. Herring, 555 U. S., at 143. When the police exhibit “deliberate,” “reck- less,” or “grossly negligent” disregard for Fourth Amend- ment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144. But when the police act with an objectively “reasonable good- faith belief” that their conduct is lawful, Leon, supra, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Her- ring, supra, at 137, the “‘deterrence rationale loses much of its force,’” and exclusion cannot “pay its way.” See Leon, supra, at 919, 908, n. 6 (quoting United States v. Peltier, 422 U. S. 531, 539 (1975)).
Justice Alito speaks directly to the issue of social costs through the exclusion of evidence
It is one thing for the criminal “to go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The judgment of the Court of Appeals for the Eleventh Circuit is
In dissent, Justice Breyer seeks to minimize these exceptions, relying on a broader scope of the exclusionary rule.
This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United States v. Leon, 468 U. S. 897 (1984); where a database has erroneously informed police that they have a warrant, Arizona v. Evans, 514 U. S. 1 (1995), Herring v. United States, 555 U. S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U. S. 340 (1987). See Herring, supra, at 142 (“good faith” exception inaptly named).
The fact that such exceptions are few and far between is understandable.
Justice Alito’s dissent in J.D.B. v. North Carolina also discusses social cost.
In its present form, Miranda’s prophylactic regime already imposes “high cost[s]” by requiring suppression of confessions that are often “highly probative” and “voluntary” by any traditional standard. Oregon v. Elstad, 470 U. S. 298, 312 (1985); see Dickerson, 530 U. S., at 444 (under Miranda “statements which may be by no means involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded and a guilty defen dant go free as a result”).
Nonetheless, a “core virtue” of Miranda has been the clarity and precision of its guidance to “police and courts.” Withrow v. Williams, 507 U. S. 680, 694 (1993) (internal quotation marks omitted); see Moran, 475 U. S., at 425 (“[O]ne of the principal advantages of Miranda is the ease and clarity of its application” (inter nal quotation marks omitted)). This increased clarity “has been thought to outweigh the burdens” that Miranda imposes. Fare, 442 U. S., at 718. The Court has, however, repeatedly cautioned against upsetting the careful “balance” that Miranda struck, Moran, supra, at 424, and it has “refused to sanction attempts to expand [the] Miranda holding” in ways that would reduce its “clarity.” See Quarles, 467 U. S., at 658 (citing cases). Given this practice, there should be a “strong presumption” against the Court’s new departure from the established custody test. See United States v. Patane, 542 U. S. 630, 640 (2004) (plurality opinion). In my judgment, that presumption cannot be overcome here.
Citing a number of leading dissents–including Justice White’s original dissent from Miranda–Alito notes that Miranda is both “overinclusive” and “underinclusive”
Miranda’s rigid standards are both overinclusive and underinclusive. They are overinclusive to the extent that they provide a windfall to the most hardened and savvy of suspects, who often have no need for Miranda’s protections.
And Miranda’s requirements are underinclusive to the extent that they fail to account for “frailties,” “idiosyncrasies,” and other individualized considerations that might cause a person to bend more easily during a confrontation with the police.
The majority opinion by Justice Sotomayor was willing to blur a bright line in order to avoid compulsion and perhaps inappropriate confessions.
Not once have we excluded from the custody analysis a circumstance that we deter- mined was relevant and objective, simply to make the fault line between custodial and noncustodial “brighter.” Indeed, were the guiding concern clarity and nothing else, the custody test would presumably ask only whether the suspect had been placed under formal arrest. Berkemer, 468 U. S., at 441; see ibid. (acknowledging the “occa- siona[l] . . . difficulty” police officers confront in determin- ing when a suspect has been taken into custody). But we have rejected that “more easily administered line,” recognizing that it would simply “enable the police to circumvent the constraints on custodial interrogations established by Miranda.” Ibid.; see also ibid., n. 33.10
Rob Barnes addressed the Court, and specifically Alito’s, view on socia cost, and his preference for erring on the side of public safety.
Alito, a former career lawyer at the JusticeDepartment and New Jersey’s U.S. attorney from 1987 to 1990, is wary of petitions from the convicted complaining of defects and worried about lawyers exploiting loopholes to try to free the guilty. “Public safety” is his bottom line and a phrase often repeated in his writing.
Last week, he complained of the “heavy toll” that accompanies the exclusionary rule, the court’s rule that evidence may have to be suppressed when police have not followed proper procedure.
“It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence,” Alito wrote for the majority in Davis v. U.S. “And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.”
In contrast, Justice Sotomayor in J.D.B. v. North Carolina, viewed social cost differently, and erred on the side of liberty by broadly construing concerns about self-incrimination:
Sotomayor also wrote for the court last week, with a very different tone.
She underscored the need for another court creation, the Miranda rule, which requires police to tell those held in custody that they have the right to remain silent and to an attorney. The 5 to 4 decision in J.D.B. v. North Carolina said child suspects deserve special consideration.
“Even for an adult, the physical and psychological isolation of custodial interrogation can undermine the individual’s will to resist and . . . compel him to speak where he would not otherwise do so freely,” Sotomayor wrote.
Issues of the constitutionality of social cost keep popping up.