First Amendment Overbreadth vs. Fourth Amendment Exclusion and Good Faith

Under the overbreadth doctrine, a defendant who is convicted under a law that in some situations may violate the First Amendment can challenge her conviction on the ground that the law is overbroad.  This means that even if the defendant’s conduct is not protected by the First Amendment, the defendant’s conviction for this conduct can be overturned if she can successfully argue that the law under which she was convicted is overbroad.  The overbreadth doctrine is justified on the ground that those who would engage in protected speech that is outlawed by an overbroad statute would be chilled from this speech and would therefore never be convicted and challenge the law in the first place.  The overbreadth doctrine helps assure that laws that violate the First Amendment will be overturned by widening the scope of those who can challenge the law and by providing the incentive of a conviction reversal for those defendants who challenge the law. 

Compare this doctrine with the exclusionary rule and the good faith exception to this rule in Fourth Amendment law.  Under the exclusionary rule, if a search is found to violate the Fourth Amendment, the evidence the search uncovers is excluded from evidence.  The exclusionary rule is based on deterring peace officers from violating suspects’ rights by ensuring that evidence uncovered through a Fourth Amendment violation will be excluded at trial.  The argument behind the good faith exception is that officers who act in reliance on statutes or precedents are following the rules and not engaging in the abuse that the exclusionary rule is meant to prevent.  In Davis v. United States, 131 S.Ct. 2419 (2011), the Supreme Court held that “Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.”  Davis is part of a line of good faith cases that begins with United States v. Leon (1984) which allowed evidence from a search in “objectively reasonable reliance” on a search warrant that was later found invalid (United States v. Leon 468 U.S. 897)  These cases also include Illinois v. Krull, where the court held that the exclusionary rule should not apply to searches done by police officers who act in reasonable reliance on statutes that are later found invalid (Illinois v. Krull, 480 U.S. 340 (1987)). 

The justification for the good faith exception does not address the point that police behavior may still have an abusive effect even if it is sanctioned by precedent or statute.  There also seems to be no acknowledgment of the point that applying the exclusionary rule may get the attentions of judges and legislators when they are drafting laws and opinions and prompt them to be more cautious in the future.   

Under the good faith rule, it would seem that if a defendant whose Fourth Amendment rights were violated successfully challenges her conviction on this basis, resulting in the overturning of the unconstitutional law or precedent that justified the search, the evidence from that search would still be admitted against the defendant because it was obtained in good faith.  Contrast this with the end result of an overbreadth challenge: a defendant whose own conduct is not protected by the First Amendment, and therefore whose rights are not violated by the conviction, can challenge the overall law on the basis of the First Amendment and, if successful, her conviction is overturned.  

Both of these amendments textually prohibit government actions, but the two sets of doctrine each has spawned seem worlds apart. These two approaches indicate how the Court seems willing to take proactive measures to protect First Amendment rights, but not so much when it comes to the Fourth Amendment.