When does police deception implicate the Fourth Amendment exclusionary rule?

In United States v. Leon, the Supreme Court held that evidence obtained in violation of the Fourth Amendment need not be excluded from the defendant’s trial if the police relied in good faith upon a warrant, even if that warrant was later determined to be invalid.  In a series of cases from the Rehnquist and Roberts Courts, the Justices have extended that rationale and have held that the exclusionary rule only applies to intentional, bad faith violations of the Fourth Amendment.  So, does evidence obtained during a search that violates the Fourth Amendment have to be suppressed where the police intentionally lie to the suspect, thus preventing the suspect – a physically present co-tenant – from exercising his right to refuse consent (see Bumper v. North Carolina; Georgia v. Randolph), but where they claim their lie was designed to protect a victim of the suspect’s conduct?

Compliments of IJ’s Short Circuit compilation, here is the Fourth Circuit’s opinion in United States v. Rush, a case out of Charleston, West Virginia.  Answer: yes, exclude the evidence.

Briefly, here are the facts: Rush had been staying at the Charleston apartment of Marquita Wills for a couple of days.  Wills suspected Rush of dealing drugs.  She called the local police to have him removed from the apartment.  She gave them a key and signed a consent form.  Although Rush had never been violent with her, she feared him because his family had a history of violence.  Police entered and found Rush asleep in the bedroom.  They cuffed him and seated him on the living room couch, then removed the cuffs.  When Rush asked what was happening, one officer said they had a warrant for the apartment. That was false and the officer knew it was false.  A subsequent search revealed crack cocaine and digital scales, and also led to a statement by Rush in which he gave information about his supplier.  Rush is later charged with federal drug offenses.

The Fourth Circuit said that this was intentional misconduct and thus fell outside the scope of any good faith exception.  The court did not credit the Government’s argument that the lie was designed to protect Wills, because Rush was not immediately arrested and there was otherwise no exigency.  In any event, the court said, the subjective motivation of the officers is irrelevant – the lie was deliberate and it prevented Rush from exercising his right to refuse consent.

All parties here conceded the Fourth Amendment violation.  My question: if Rush was no longer a welcome guest in her apartment, did he lose his expectation of privacy there?  And if so, and assuming there is no other basis for saying there was a physical trespass on a constitutionally protected interest of his, can he even contest the search?  Maybe the key here is that she had not yet informed him that he was no longer welcome.

 

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