The Supreme Court established the exclusionary rule under the Fourth Amendment to deter police misconduct by prohibiting the introduction of evidence seized during an unlawful search.1 But the Court, wary of leaving the prosecution worse off at trial than it would have been if no misconduct had occurred,2 has chipped away at this rule since its inception through exceptions like the independent source doctrine.3 In Murray v. United States,4 the Supreme Court held that evidence initially uncovered during an unlawful search could be admitted under the independent source doctrine as long as it was later rediscovered through some legal channel — such as a search conducted pursuant to a valid search warrant — that was “genuinely independent” from the original, unconstitutional search.5 Recently, in United States v. Huskisson,6 the Seventh Circuit affirmed a district court’s refusal to suppress drug evidence discovered during an unlawful warrantless search of a home because officers later obtained that evidence pursuant to a search warrant, even though the warrant application referenced the evidence at issue.7 Huskisson illustrates the tension between the Seventh Circuit’s expansive interpretation of the independent source doctrine and the Fourth Amendment’s guarantee of protection from warrantless searches of the home. The court’s sweeping application of the independent source exception weakens the deterrent effect of the exclusionary rule.8
Anthony Hardy was arrested on February 5, 2016, for his role in a drug conspiracy.9 In an attempt to obtain a favorable plea deal, Hardy identified two local drug dealers, one of whom was Paul Huskisson.10 Hardy claimed that he had purchased methamphetamine from Huskisson on multiple occasions and agreed to participate in a controlled drug sale so that federal agents could arrest Huskisson.11 Hardy arranged a transaction with Huskisson, and federal agents from the Drug Enforcement Agency (DEA) listened to and recorded a series of nine phone calls between the men as they discussed the logistics of the sale.12 The sale was scheduled to take place at Huskisson’s home on the evening of February 6.13 The agents did not attempt to obtain a search warrant before the deal because they assumed that they needed to confirm the presence of drugs in Huskisson’s home first.14
Hardy went to Huskisson’s house, as scheduled, with a team of federal and local law enforcement officers in tow.15 After about an hour, Hardy alerted the officers that he had seen methamphetamine in the home.16 Officers then descended upon Huskisson’s residence, arresting Huskisson and the other two men inside, despite the fact that they still had not obtained a search warrant.17 Huskisson refused to consent to a search of his residence, but officers claimed that they saw an open cooler that contained “ten saran-wrapped packages” in plain view.18 The contents of the packages field-tested positive for methamphetamine.19
After the unlawful entry,20 DEA agents applied for a warrant to search Huskisson’s home.21 In addition to describing Hardy’s past interactions with Huskisson, the multiple phone calls between Hardy and Huskisson, and Hardy’s account of the events he observed while inside of Huskisson’s house, the search warrant application included information about the open cooler and the packages that the officers observed in Huskisson’s house.22 Based on the application, a magistrate judge issued a warrant to authorize a search approximately four hours after officers unlawfully entered Huskisson’s home.23
After his arrest, Huskisson was indicted in the United States District Court for the Southern District of Indiana for possession of methamphetamine with the intent to distribute.24 The defense moved to suppress the drugs as the product of an unconstitutional search.25 Because the affidavit referenced tainted evidence, the defense argued that the search warrant could not constitute an “independent” source.26
The district court denied the motion to suppress, despite inconsistent testimony from an Indiana State Police detective about the plan for seeking a warrant application.27 Detective Noel Kinney first suggested that the agents planned to seek a search warrant regardless of whether they found drug evidence,28 but he later implied that the team would have applied for a warrant only if they found methamphetamine in Huskisson’s home first.29 The district court credited the former testimony and found that the evidence in the warrant application would have constituted probable cause even without the description of the drugs discovered during the initial search.30
At trial, three DEA agents from the entry team testified that their intention had been to secure the residence and wait for a search warrant.31 Huskisson was found guilty and given a twenty-year mandatory minimum sentence.32 He appealed his conviction, challenging the denial of his motion to suppress on the grounds that the warrantless entry violated the Fourth Amendment and the search warrant was not an independent source.33
The Seventh Circuit affirmed.34 Writing for the panel, Judge Brennan35 acknowledged that law enforcement officers entered Huskisson’s home and gained knowledge about the drug evidence illegally36 but reasoned that the independent source doctrine rendered the evidence admissible.37 To reach this conclusion, the court applied the two-part test developed in Murray v. United States for deciding whether a warrant constitutes an independent legal source of evidence.38 Under the Seventh Circuit’s interpretation of the Murray framework, a warrant is an independent source if (1) the illegally obtained information did not affect the magistrate’s determination that probable cause existed to justify the search, and (2) the illegal search did not affect the government’s decision to pursue a search warrant.39
With regard to the first question, the court found that the illegally obtained evidence had not meaningfully affected the magistrate’s decision to issue the warrant.40 Relying on earlier Seventh Circuit decisions interpreting Murray,41 the court concluded that a warrant based on an application that included illegally obtained information could be upheld “if the other information in the application establishe[d] probable cause.”42 Judge Brennan then reviewed the facts of the case and determined that the search warrant application contained enough “untainted evidence of probable cause” to justify a search warrant.43
Having resolved the first question in the Murray analysis, the Seventh Circuit turned to the second and determined that the illegal search did not affect the government’s decision. Despite Detective Kinney’s contradictory testimony, the district court found that the officers would have applied for a warrant to search Huskisson’s home regardless of whether drug evidence was found during the initial entry.44 Because the lower court made a “well-reasoned and well-supported” conclusion, the Seventh Circuit refused to declare that it had committed clear error.45 After answering both questions in the Murray framework, Judge Brennan concluded that the drug evidence was admissible.46 “All agree[d]” that the first entry into Huskisson’s house without a warrant was unlawful, but the evidence did not have to be suppressed “because the government had so much other evidence of probable cause, and had already planned to apply for a warrant before the illegal entry.”47 The opposite conclusion would have placed the government “in a worse position than it would otherwise have occupied.”48
Huskisson reveals the deep tension between the Seventh Circuit’s broad interpretation of the independent source exception to the exclusionary rule and the Fourth Amendment’s substantive protection against warrantless searches of the home. The Seventh Circuit has interpreted Murray’s first prong broadly, admitting unlawfully observed evidence under the independent source exception even when the affidavit for the later-obtained search warrant refers to that evidence, as long as the other information in the warrant application provides probable cause. This approach is derived from the Supreme Court’s conclusion in Franks v. Delaware,49 but the Franks standard is inconsistent with both the language of Murray and the constitutional injury at issue in Huskisson. Additionally, Huskisson illustrates the ease with which government agents can circumvent the barrier articulated in the second prong of the Murray test: the subjective standard of intent is unlikely to provide any meaningful safeguard against constitutional violations. In effect, the Seventh Circuit’s broad reading of Murray transforms the Fourth Amendment’s warrant requirement into a probable cause requirement, as police officers may now conduct confirmatory searches of criminal defendants’ homes without the fruits of those searches being suppressed. Expansion of the independent source doctrine in this way removes a vital disincentive to unconstitutional searches of homes and erodes the protections of the Fourth Amendment.
The Seventh Circuit has held that the first prong of the Murray test is satisfied even when the warrant application contains evidence obtained during the illegal search if the application contains other information sufficient to demonstrate probable cause. In United States v. Markling,50 the Seventh Circuit concluded that search warrants based on applications that included evidence tainted by unlawful search methods may still constitute independent sources.51 The first prong of the Murray test would be satisfied whenever the information in the warrant application established probable cause without regard to the unlawfully obtained observations.52 To reach this conclusion, the court drew guidance from the Franks decision,53 in which the Supreme Court held that a search warrant must be set aside if a criminal defendant establishes that it was based on information that the officer knew was false or given with reckless disregard for the truth, and that the defendant must be granted a hearing to determine if the remaining information in the warrant application is sufficient by itself to establish probable cause.54 The Markling court reasoned: “If we may uphold a warrant based on an application including knowingly false information if the other information in the application establishes probable cause, it is logical to conclude that we may uphold a warrant based on an application including illegally obtained information under the same circumstances.”55
But the Franks approach adopted by the Seventh Circuit is inconsistent with Murray’s emphasis on the effect of the illegal search on the warrant application. The Seventh Circuit construed the word “affect” in the first prong of the Murray test narrowly in order to conclude that illegally obtained information does not “affect” the magistrate’s decision to issue a search warrant when there is other evidence sufficient to establish probable cause.56 This narrow interpretation of the word “affect” allowed the court to incorporate the Franks reasoning into the Murray test.57 But “affect” also has a broader meaning. The court could have concluded that tainted information “affect[ed]” the magistrate’s decision any time that it had an actual effect, meaning that it was presented to the judge and “affect[ed] the decision of th[at] particular magistrate judge to issue the warrant.”58 Courts that have incorporated the Franks standard into the Murray test have had to acknowledge the “considerable tension” between the two cases.59 As the Seventh Circuit conceded in Markling, “[t]aken literally, [Murray’s] language indicates that the relevant inquiry focuses not on whether the warrant application establishes probable cause absent the tainted information, but rather on ‘the actual effect of the illegally acquired information upon a particular magistrate.’”60
Further, Franks is not a good fit for the constitutional injury at issue in Huskisson. The Seventh Circuit, like other circuits that have incorporated the Franks standard into Murray’s first prong, saw no meaningful distinction between inclusion of false evidence and unlawfully obtained evidence in a warrant application.61 But Huskisson and similar cases involve more potential constitutional injuries than Franks did. In Franks, there was one potential Fourth Amendment violation: a search based on a warrant that — absent the false information — might not have been supported by probable cause.62 By contrast, in Markling and Huskisson, there were two potential Fourth Amendment violations: an initial warrantless search and a search that, without the tainted information, might not have been supported by probable cause.63 The Franks standard protects against only the second injury.64 This difference between the Franks scenario and Huskisson matters because, as Chief Justice Burger once noted, government agents should not be allowed to “exploit[] their presence” in a potential defendant’s house,65 and the use of unconstitutionally obtained information in a warrant application could be considered exploitative.66 If the warrant that authorized the second search is linked to the initial unconstitutional search, then the warrant should not constitute an independent source. Nothing in Murray suggested that a warrant based on an affidavit containing references to evidence discovered through an unlawful search can be considered a genuinely independent source, and the independent source doctrine was not at issue in Franks. Therefore, even though the Seventh Circuit characterized its decision in Markling as a natural conclusion flowing from the Supreme Court’s guidance in Franks,67 this holding constituted an unjustified expansion of the independent source doctrine. If they have probable cause, agents in the Seventh Circuit are now free to include unlawfully gathered information from warrantless initial searches in search warrant applications without fear that the evidence will later be suppressed at trial.
Huskisson also demonstrates that the second prong of the Murray test offers little additional protection for individuals who have been injured by an illegal search. The second question in the Murray framework requires the court to determine whether the government agents’ illegal entry affected the decision to apply for the warrant.68 But “[t]he testimony of the officers . . . is the only direct evidence of intent,” and officers have little incentive to admit that evidence discovered during an unlawful search affected their decision to pursue a warrant.69 Then, if an officer does admit that evidence observed during a warrantless search affected the decision to seek a warrant, as Detective Kinney did in this case,70 the trial court is still free to credit other testimony in order to avoid suppressing the evidence.71 Because officers are the only source of information about their subjective intent, the practical effect of the second prong of the independent source test is that government agents have broad latitude to conduct illegal searches and then rationalize these searches ex post.
The Huskisson court’s interpretation of the Murray test essentially reduces the Fourth Amendment’s requirement that the government obtain a warrant before invading a person’s privacy to a probable cause requirement.72 Before Huskisson, no case in the Seventh Circuit had authorized government agents to conduct an unconstitutional search of someone’s home, describe material evidence from that illegal search in a subsequent warrant application, and still introduce evidence discovered during the initial search at trial because the later-issued warrant constituted an independent source of the evidence.73 But now, police officers in the Seventh Circuit are further relieved from “the burden of inconvenience” that the warrant requirement places upon them.74 If they have probable cause to justify a search, officers may engage in an initial search to confirm their suspicion and even include that information in the affidavit to justify a search warrant later;75 the court will simply excise the improper information for them, as long as the officers say that they had always intended to secure a warrant. This new paradigm means that officers need not seek permission from a magistrate before conducting home searches because the court has lowered the cost of seeking forgiveness for unauthorized searches. Suppression is no longer the normal penalty.
But the Fourth Amendment generally requires more than probable cause alone to justify a search of a home; it requires a search warrant.76 The home occupies a uniquely privileged space in the Fourth Amendment context.77 The warrant requirement serves an important function: it forces judges to find (and police officers to demonstrate) probable cause before knowing whether the search will produce valuable evidence.78 An officer cannot constitutionally invade the sanctity of a home without first obtaining authorization from a magistrate judge based on an independent assessment of the evidence presented in an affidavit.79 And the search warrant serves not only as an assurance that officers will not invade a person’s privacy without a sufficiently high level of suspicion, but also as a check on the power of the executive branch.80 Therefore, the fact that the Seventh Circuit now allows officers to admit evidence discovered through unconstitutional forays into the home is a significant development. The Seventh Circuit’s unwillingness to deter confirmatory searches by mandating suppression of evidence when illegally obtained information was used in the affidavit to justify the search aggrandizes police power at the expense of the magistrate’s judicial power.81
In Huskisson, the Fourth Amendment’s commitment to the privacy of the home conflicted with the Markling court’s expansive interpretation of the independent source doctrine, and the independent source doctrine prevailed. Commentators have worried since Murray that decisions expanding the scope of the independent source doctrine have “allow[ed] the pendulum of justice to swing too far to the right and diminish[ed] one’s constitutional[ly] protected rights[,] which are the foundations upon which our society is built.”82 The fact that the independent source doctrine has now been expanded in the Seventh Circuit to the point that officers can violate the Fourth Amendment first and ask for authorization later, and the unlawfully obtained evidence can still be admitted at trial, weakens the deterrent effect of the exclusionary rule. This leaves potential criminal defendants vulnerable and further erodes the protections that the Constitution affords to the home through the Fourth Amendment.