• Bryan Perkins

Good Faith Exception: Government Screws-Up; But You Lose



In February of 2012, detectives from the Alliance Police Department obtained a search warrant for a business suspected of engaging in illegal gambling. The search led to the confiscation of several video slot machines and the arrest of three men involved in the business. Apparently these business owners failed to respect the State of Ohio’s monopoly on the gambling business. Woe unto those who show no reverence for the government’s turf. But I digress. Back to the issue at hand.


So the problem is that while the detectives had a search warrant signed by a judge, it was signed by a probate court judge. Probate court judges deal primarily with administering wills and estates, name changes, looking after those deemed to be mental incompetents, etc. They don’t deal with criminal law matters and issues of a constitutional magnitude. According to the law in the State of Ohio, a probate court judge does not have legal authority to issue a search warrant. So as it turns out, the search warrant in this case had no more legal authority than if it had been signed by a random Kindergartener with a Crayola crayon. It had no legal authority. It was ipso facto invalid.


The Exclusionary Rule states that fruits from an illegal search should not be admitted as evidence in a court of law against a citizen charged with a crime. The theory behind the Exclusionary Rule is that the government should not benefit from its own illegal conduct. If you want to prosecute a citizen, do it legally. That’s not asking too much is it? Also, admission of evidence in a court of law should be subject to some moral standard. There is something intrinsically abhorrent about admitting illegally obtained evidence in a court of law, to prosecute a person for breaking another law. Even the hypocrisy of the government should have some limits. So applying these principles to this gambling case, it seems that the gambling machines that were illegally taken pursuant to an illegal warrant should be excluded as evidence. Sorry government, you violated the law, we are not going to allow the product of your illegal behavior into our “court of law.”


And that is what the businessmen and their attorneys in this case rightfully believed. It seemed to be a logical and well-reasoned belief. As a matter of fact, two other courts agreed with them. The municipal court that heard the original case held that the search warrant was invalid and suppressed the evidence. The court of appeals agreed with the trial court. But, apparently feeling no shame over the illegal conduct of its own agents, the State of Ohio pressed on to the Ohio Supreme Court. After all, these video slot desperados cannot be allowed to go unpunished.


The Ohio Supreme Court took in the case. In State of Ohio v. Brown, Slip Opinion No. 2015-Ohio-486, the Ohio Supreme Court acknowledged that the search warrant was not valid and the search was illegal. But, in the end, it still slapped its stamp of approval upon this illegal conduct using the “good-faith exception.” Yes, the police screwed-up. Yes, the police broke the law. Yes, the police illegally entered your business. Yes, the police illegally took your property. But, because the agents of the government did not break the law in “bad-faith,” the government still gets the win, and the citizen gets prosecuted.


The “good faith exception” rests upon the principle that an “unbending application of the exclusionary rule” “would impede unacceptably the truth-finding functions of the judge and jury.” I admit that I am not sure how much the Founder’s intended the Constitution to “bend.” I seem to remember hearing somewhere that we were endowed by our Creator with certain unalienable Rights. Oh, that was just the Declaration of Independence, you know the document that gave birth to our Nation. I was told by men smarter than me that the Declaration carries no legal authority and it shouldn’t be cited in a legal argument—imagine that. Regardless, according to the court, your constitutional rights cannot be permitted to interfere with the government’s efficient and effective operation. And of course, the use of mush words such as “good faith” and “bad faith” gives the Court the ability to make a value judgment (based on its own values or lack of values) as to whatever it deems should be permissible. There are no clear lines. Every illegal act committed by the government can be justified and forgiven depending upon what is expedient to the system.


Just try and see how that works for you as an ordinary citizen. “Oh, I’m sorry officer, while I might have been speeding, I was driving in good faith, just trying to get to my job on-time.” “I’m sorry your honor, I know I stole that money, but I needed it to support my family, I acted in good faith, you can’t send me to jail.” Of course such excuses wouldn’t work for you and me. And think of this. The laws of speeding and theft are simply state enacted statutes. In contrast, the United States Constitution is supposed to be the “Supreme Law of the Land.” The Constitution is the embodiment of our God-given rights. These are sacred rights to be protected at all costs, not just some municipal ordinance enacted by some local bureaucrats. Yet, a court won’t forgive your violation of a minor statute even if you violated it in good faith. After all, the law is the law. But our state’s highest court is more than happy to turn a blind eye to the government’s violation of your constitutional rights—the Supreme Law of the Land. As long as the trains run on time—the sacred rights of the citizen be damned.


This is yet another sad example of the undeniable fact that when it comes to “the people,” no man is above the law. But when it comes to the government, state agents are given free reign to trample the constitutional rights of its citizens as long as it serves the efficiency and expedience of the so called “justice system.”


“Expedience, not justice, is the rule of contemporary American law.” - Abbie Hoffman

Attorney, Bryan Perkins, in Cincinnati, Ohio, has extensive trial and appellate experience in the area of criminal defense law.

  • White Facebook Icon
  • White RSS Icon
  • White LinkedIn Icon
Links
Contact

Copyright © 2020 Bryan Perkins, Attorney at Law