'Good Faith': Breonna Taylor And The Broad Search Standard

By Cara Bayles | July 19, 2020, 8:02 PM EDT

A large-scale ground mural depicting Breonna Taylor with the text 'Black Lives Matter' is seen being painted at Chambers Park in Annapolis, Maryland. Taylor was shot and killed by members of the Louisville Metro Police Department in March. (Patrick Smith/Getty Images)

By now, the story of a drug raid gone wrong has made Breonna Taylor's name a rallying cry.

The 26-year-old emergency room technician was killed late one night in March, when police used a battering ram to bust into the apartment where she and her boyfriend, Kenneth Walker, were sleeping. Walker didn't realize the men breaking in were police, and shot a gun he was licensed to carry. The officers opened fire, killing Taylor.

Activists point to the case as an example of police violence against Black people, and a lack of accountability — four months after her death, the officers who killed Taylor have not been criminally charged.

Her case brings up thorny Fourth Amendment issues as well. According to a wrongful death lawsuit filed by Taylor's family, the officers "had no probable cause or other legal basis to enter and search Breonna's home."

No drugs were found in her apartment, but police had a facially valid search warrant that authorized them to enter the apartment without knocking.

That warrant can be traced back to a narcotics investigation that began in January, when police officers in Louisville, Kentucky, began using tips and a street surveillance camera to track two suspects. They trailed those men, Adrian Walker (no relation to Kenneth Walker) and Jamarcus Glover, watching them drive between trap houses. They also stopped by Taylor's residence, where Glover, who'd dated Taylor two years earlier, allegedly retrieved a package.

Police wanted to search several locations for drugs, paraphernalia and weapons, as well as paperwork and electronic records that might document drug trafficking. And so, on a Thursday morning in March, they argued their case before Jefferson County Circuit Court Judge Mary Shaw.

They explained the details of their investigation, and how they planned to execute all five warrants simultaneously at night. The judge asked them several questions, reviewed the affidavits they'd prepared for each warrant, and decided the officers had met the probable cause requirements of the Fourth Amendment, according to her attorney, G. Taylor Wilson. Then, officers signed the affidavits under oath, and Judge Shaw signed the warrants.

"The time needed to assess the evidence and probable cause for each warrant application varies by case, and in this instance it is estimated to have taken at least 30 minutes," Wilson told Law360 in an email.

"Judge Shaw is committed to using her best efforts to champion justice in her courtroom with integrity and fairness," he continued. "Judge Shaw is hopeful that the national conversation — championing equality, fairness, and justice — surrounding Ms. Taylor's and so many others' tragic deaths continues and creates an impactful change."

When it comes to search warrants specifically, some Fourth Amendment experts say, a national conversation is long overdue.

In recent decades, case law has stretched the boundaries of what is considered reasonable search and seizure. A judge only needs to find probable cause based on what an officer swears to in an affidavit. And so long as that judge believes the officer seeking the warrant is operating in good faith, that can mean a search is valid even when it's based on shaky or false information.

And that, in turn, may have meant the search itself was lawful, according to John Wesley Hall, a past president of the National Association of Criminal Defense Lawyers who wrote a law treatise on search and seizure and has argued several Fourth Amendment cases before the U.S. Supreme Court.

"The Supreme Court has said that when evaluating the affidavit for sufficiency, in doubtful cases the warrant gets the benefit of the doubt," Hall said.

Lowering the Standard

The Fourth Amendment forbids "unreasonable" searches by requiring law enforcement to get a warrant that establishes probable cause and outlines what they will look for and where they will search.

But probable cause is a murky concept, Hall said.

"There's no really articulable standard," he told Law360. "It's whether or not a person of reasonable caution would think evidence would be found in the place they're seeking to search. Remember that warrants are directed at places, not people, so you just have to say, 'It's at 123 Main Street. And this is why we think it's there.'"

But in 1984, the Supreme Court lowered the bar on probable cause in its United States v. Leon decision.

The case involved the search of several residences based on a confidential informant's tip about a suspected drug ring. But the tip was more than 5 months old by the time police applied for the warrants, and it came from an untested source. A lower court granted the defense's motion to suppress evidence found in the search, ruling the police hadn't established probable cause, and the warrant shouldn't have been issued.

But the high court found that didn't mean the search was unconstitutional. Even when a warrant is invalidated, it said, the search itself is constitutional if the officers involved were operating in good faith. The evidence obtained in such searches is invalid "only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause."

The Leon case changed not only what evidence came in at trial, but how warrants themselves were granted, according to Christopher Slobogin, director of the criminal justice program at Vanderbilt University Law School.

"What it effectively did was lower the Fourth Amendment standard," he said. "It definitely creates an incentive to not worry about probable cause on the part of either the magistrate or the police. Magistrates now know that even if there wasn't probable cause, evidence will still get in if a reasonable cop would have thought there was probable cause."

"The counter to that is: C'mon, every magistrate is going to want to make sure there's probable cause, and no cop is going to want to gamble," Slobogin added.

But Ronal Serpas, a former police chief and professor of criminology at Loyola University, bristles at the notion that police officers and judges are "mutually lying."

"As a general principle, police officers and judges are both compelled by truthfully explaining to one another what they're doing," he said.

He added that there is a built-in check on unlawful searches — the defense bar, which is "not going to just simply roll over" and let evidence in.

"I've spent days in courtrooms, watching the defense and prosecutors argue over a piece of evidence as small as a marijuana cigarette — whether or not was it seized properly, did they have probable cause, did they have a warrant, was the warrant formed correctly," he said. "Even if there are good faith mistakes, they've probably been litigated very extensively in front of a judge who's going to determine whether the Supreme Court's precedent applies."

Some states have done away with the good faith exception, with several state supreme courts finding the exception wasn't applicable under their state constitutions. New York did so a year after Leon was decided, saying "our analysis traces traditional lines of authority."

But the Leon decision's good faith exception remains the standard in most states, including in Kentucky, where Taylor was killed.

Getting It Right

Taylor's death illustrates how murky the good faith exception can get.

In court filings, Taylor's family alleges the affidavit that enabled officers to search her home included "blatant lies and misrepresentations in order to try and meet the probable cause standard."

Louisville Metro Police Detective Joshua Jaynes, who wrote the affidavit and sought the search warrant, has been placed on administrative reassignment, acting LMPD Chief Robert Schroeder announced in a press conference last month, as the department addresses questions about "how and why the search warrant was approved." The matter has also been referred to the FBI's Civil Rights Division.

"This is all part of the process of getting to the truth of what happened leading up to that night," he said.

In the affidavit, Jaynes stated he'd watched Glover retrieve a package from Taylor's apartment, and that he'd confirmed with the U.S. postal inspector that Glover had been receiving packages there.

But since those warrants were publicly released, the Louisville postal inspector has said his office did not field a verification request about the address from Louisville police. A different law enforcement agency had inquired whether Taylor's address was receiving suspicious mail, the inspector said, but his office found it had not.

Even under the Leon standard, an officer can't knowingly lie in an affidavit, especially in a way that affects a judge's analysis, Hall said, and the claim Jaynes spoke to the postal inspector is "obviously material to probable cause, without a doubt." But whether the warrant is valid may depend on whether Jaynes' state of mind — whether he knowingly lied or misconstrued what another law enforcement agency told him.

"The big question here is: Was it truly a false statement or simply misconstruing? Misconstruing is negligence, a false statement is knowing. And courts divide over that all the time," Hall said. "So many times, I think cops just literally think they can get away with murder in their affidavits for search warrants, because they think nobody's ever going to hold them to account."

But Jaynes, the detective who signed the affidavit, didn't carry out the raid on Taylor's home. And under Leon, even if the warrant wasn't valid because of the false affidavit, the search itself was still legal.

"That's the crux of the good faith exception, that a search could be completely without probable cause yet still be valid — something I just can't fathom, because it's not within the Fourth Amendment," Hall said.

Serpas says that Fourth Amendment case law tries to walk a balance — it's meant to prevent and correct unlawful searches, "but it's also not meant to punish end users who didn't have any idea that the information they had every reason to believe was valid had been typed wrong."

"If I'm a police officer relying on a document that was submitted by someone else that I had nothing to do with — an arrest warrant, for example — and then I use that piece of information to act, if it turns out that information was wrong, I didn't do anything wrong on purpose," he said.


Another aspect of the search gaining scrutiny stems from the last time of Jaynes' affidavit, which asked for a "no-knock" warrant, "due to the nature of how these drug traffickers operate."

"These drug traffickers have a history of attempting to destroy evidence, have cameras on the location that compromise detectives once an approach to the dwelling is made, and [have a] history of fleeing from law enforcement," he wrote.

The warrant noted that Glover was already facing several drug-related charges, including one for "tampering with physical evidence," and three more related to firearm possession. But Taylor had no criminal record. It's unclear from the search warrant whether police thought Glover lived there or was just getting mail there.

"The judge has to make a specific finding that there's reasonable suspicion to believe that drugs will be destroyed or police will be endangered if they knock and announce," Slobogin said.

Kenneth Walker and his neighbors say the officers didn't identify themselves as police when they burst through the door. That claim is backed up by the fact that Walker called 911 to report a home invasion after the shots were fired.

"It is called 'no-knock,' it's not a 'no-announce,'" Slobogin said. "Maybe they didn't need to knock, they can batter the door down, but as soon as they batter that door down, they'd better yell, 'Police.'"

The question of officers announcing themselves was at the heart of the Wilson v. Arkansas case, which Hall argued before the Supreme Court in 1995. In a unanimous decision, the court found the common law requirement that officers identify themselves is an important factor in determining whether a search is constitutional under the Fourth Amendment.

Taylor's death has spurred some cities to rethink the practice of no-knock raids. The Louisville Metro Council voted unanimously in June to pass "Breonna's Law," which banned no-knock warrants in the city.

U.S. Sen. Rand Paul of Kentucky has introduced a federal bill, the Justice for Breonna Taylor Act, that would end no-knock warrants. Meanwhile, the Justice in Policing Act, proposed by House Democrats back in June, would ban federal law enforcement from using no-knock warrants and place funding restrictions on local police doing such raids.

Reforms to bolster the Fourth Amendment are badly needed, Hall says. He worries about how often Fourth Amendment rights are violated without garnering national attention.

"Work backwards from Taylor's killing to what led to Taylor's killing — how long has this been going on?" he said. "How many other people have been shot inside their own house?"

Have a story idea for Access to Justice? Reach us at accesstojustice@law360.com.

--Editing by Katherine Rautenberg.

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