Thursday, August 23, 2012
"DNA Extraction, Plain View, and the Scope of the Exclusionary Rule: The Fourth Circuit’s Decision in United States v. Davis"
Orin Kerr has this interesting and useful post at The Volokh Conspiracy. In part:
[T]he majority’s extension of the good-faith exception strikes me as unwarranted and unfortunate. The Fourth Circuit reduces the exclusionary rule to a general test of individual culpability of the officers involved. Of course, there isn’t such evidence: Personal culpability is mostly about what the officers were subjectively thinking, and an officer’s subjective intent is irrelevant under Whren v. United States and difficult to establish even if it is considered relevant. In effect, there is little chance of exclusion without proof of state of mind, but the defense can’t get proof of state of mind so it doesn’t have much of a chance at suppression.