The Yale Law Journal

VOLUME
127
2017
NUMBER
2
November 2017
246-489

Competing Exclusionary Rules in Multistate Investigations: Resolving Conflicts of State Search-and-Seizure Law

Conflict of LawsEvidence

abstract. The judiciary has long struggled to resolve conflicts of state search-and-seizure law. The issue arises when a search occurs in one state, but the defendant is prosecuted in another. For example, suppose a crime is committed in State A. In the course of investigating an entirely different crime, State B officers perform a search and uncover evidence of the State A crime. The search was unlawful and the evidence would be excluded under State B’s constitution, but the search was lawful under State A’s constitution. Should the evidence be admitted because forum law applies or excluded because the law of the situs of the search applies? What if State A officers perform a search in State B for a case tried in State A?

State courts have developed at least five distinct approaches, each with its own assumptions and methodology, to resolve these and other search-and-seizure conflicts of law. None is conceptually sound or pragmatically appealing. Courts should instead adopt a novel law-of-the-officer approach. They should first interpret the state constitutions at issue to determine whether more than one constitution reaches the facts of the case. If so, courts should apply the state law of the police officer who performed the search. This two-step approach both capitalizes on the latest insights from the conflict-of-laws literature and comports with the most common purposes behind state exclusionary rules. Most importantly, it maximizes the deterrent value of exclusion by ensuring predictability and simplicity.

author. Yale Law School, J.D. 2017. I thank Meredith Foster and the rest of the Yale Law Journal for their thoughtful and patient editing. I am also grateful to Matthew Butler, Urja Mittal, Jenna Pavelec, and Michael Showalter for their feedback. I am particularly indebted to James Durling for the many conversations we had about this topic. Finally, I thank Professor Lea Brilmayer for her support and guidance.


Introduction

It is almost trite to say that the exclusionary rule is controversial. The federal rule, which allows courts to exclude unlawfully obtained evidence, is fiercely contested. Constitutional scholars continue to debate whether it is constitutionally mandated and, if so, under what theory.1 Others have focused on the rule’s normative appeal, arguing over whether it unfairly immunizes guilty criminals,2 has expressive importance,3 or even encourages judges to permit police perjury or otherwise manipulate Fourth Amendment doctrine.4 And law-and-economics scholars continue to wage an empirical war, employing statistics and behavioral economic insights to show that the rule does or does not deter police misconduct.5

Yet despite the depth and quantity of this literature, one area of exclusionary doctrine has been largely ignored: state exclusionary rules and, more particularly, conflicts of state exclusionary rules. The Supreme Court incorporated the Fourth Amendment against the states in 19496 and the exclusionary rule as a remedy for Fourth Amendment violations in 1961.7 The Federal Constitution therefore serves as a floor for the protection of the right to be free from unreasonable searches and seizures. But every state has a Fourth Amendment analogue in its constitution8 and remains free to provide criminal defendants with search-and-seizure rights above the federal floor.9 In fact, Justice William Brennan called on state courts to do exactly that: “[S]tate courts cannot rest when they have afforded their citizens the full protections of the Federal Constitution. State constitutions, too, are a font of individual liberties, their protections often extending beyond those required by the Supreme Court’s interpretation of federal law.”10

It did not take long for state courts to accept Justice Brennan’s invitation.11 One 1996 study found that nearly half of all states had established search-and-seizure rights broader than those provided by the Federal Constitution.12 And that study considered state constitutional interpretations that governed only a sampling of common law-enforcement activities (e.g., home entries to effect felony arrests).13 The number could be even higher if other search-and-seizure doctrines are considered. A 2006 study, for example, found that eleven states reject the third-party doctrine, which provides that the Fourth Amendment does not protect information provided to a third party, and ten others have indicated in some way that they may reject it in the future.14

Similarly, states have adopted a variety of exclusionary rules. Few states have unambiguously rejected any kind of state-law-based exclusionary rule.15 Far more have recognized rules with various levels of protection ranging from those that are coextensive with the federal rule to those that require exclusion even when a federal exception would otherwise apply. For instance, as of 2007, the highest courts of fourteen states had rejected the so-called “good faith” exception, which prohibits the exclusion of evidence obtained in violation of the Fourth Amendment if the police act in good-faith reliance on a search warrant that later proves to be defective.16 In sum, there is tremendous variation between the states, not only in terms of the substantive search-and-seizure rights provided but also the exclusionary rules that remedy violations of those rights.17

This checkered landscape produces an inevitable question: what law applies when a search occurs in one state but the defendant is prosecuted in another? Consider a stylized version of the facts in People v. Orlosky.18 A crime is committed in State A. Before an arrest is made, the defendant moves to State B. In the course of investigating an entirely different crime, State B officers perform a search and uncover evidence of the State A crime. The evidence is admissible under State A’s constitution, but inadmissible under State B’s constitution. Should the evidence be admitted in a proceeding in State A because forum law applies, or excluded because the law of the situs of the search applies? What if State A officers perform a search in State B for a case tried in State A?19 Or State A and State B officers cooperate to perform a single search in State B for a case tried in State A?20 When multiple jurisdictions are involved, courts must perform some conflict-of-laws analysis to determine which law governs the officers who perform any relevant searches.21

Complicating matters further is the advent of new technologies, which will only make multistate cases more prevalent. State lines are more porous and less practically important than ever before. Not only do people and their possessions regularly cross state lines physically,22 but, with the click of a mouse, one can almost instantaneously send and store information across state lines with no physical movement at all. Consider State v. Evers.23 A California officer investigating online child pornography obtained a search warrant from a California court that required America Online (AOL)—headquartered in Virginia—to turn over the names and billing addresses of various users, including the defendant. The California officer learned that the defendant resided in New Jersey and forwarded the results of his investigation to New Jersey police, who promptly obtained a search warrant for the defendant’s residence and arrested him.24 Among other evidentiary questions raised was whether the New Jersey Constitution protected the account information obtained by the California officer pursuant to a California warrant.25 The facts were different, but the question remained the same: what law applies when a crime and a related search involve multiple jurisdictions?

This Note analyzes current approaches to interstate search-and-seizure conflicts of law, concludes that none are satisfactory, and proposes a novel approach consistent with both conflict-of-laws theory and the values underlying state exclusionary rules. A few caveats are worth highlighting at the outset. First, this Note considers only cases involving the exclusion of evidence as a result of a search-and-seizure violation; it does not address cases involving custodial interrogation26 and other doctrines with exclusionary remedies. Second, this analysis is limited to cases involving officers from more than one state. Disputes arising from federal-state cooperation may raise additional concerns not addressed here.

Part I provides a brief overview of the federal and state exclusionary rules. While different constitutions may not mandate the exclusion of evidence, federal and state exclusionary rules are constitutionally rooted.27 Because of that connection, it does not make sense to apply one state’s exclusionary rule to a violation of another state’s constitution.

Part II briefly discusses the sparse constitutional constraints on a court’s approach as well as the theoretical and judicial insights that have been gleaned over the last century as the conflict-of-laws field has developed. State courts are generally free to engage in almost uninhibited common law making to devise their own approaches to resolving these cases. The resulting experimentation with different theories has revealed a few principles that should guide the development of new theories. Perhaps most importantly, courts should adopt rules that are sensitive to the substance and intended reach of the laws they seek to apply.

Part III assesses the strengths and weaknesses of current approaches. While fact patterns like those discussed above have bedeviled courts for decades, there has thus far been no clear consensus on the appropriate solution. Part III identifies five distinct approaches to the problem. A handful of courts argue that the exclusionary rule is a rule of evidence and, because rules of evidence are procedural, forum law must apply. A few courts opt for universal application of either forum or situs law. Some endorse one of the modern conflict-of-laws theories, such as governmental interest analysis or the most-significant-relationship test. Others perform a type of state-constitutional-law analysis and determine whether, for instance, the forum state’s constitution applies extraterritorially to its officers when they perform searches in other states. And still others choose the law that best serves the interests of deterrence, judicial integrity, and any of the other purposes underlying a particular exclusionary rule.

Each of the extant approaches suffers from some degree of theoretical incoherence and, equally concerning, produces results at odds with the reasons the exclusionary rule was created. Rather than persist in applying these flawed approaches, state courts should devise a conflict-of-laws framework that can consistently and appropriately resolve interstate search-and-seizure conflicts of law.

Part IV proposes and defends one such framework. Courts should first perform a state-constitutional-law analysis to determine whether two laws apply. If so, courts should apply the state law of the police officer who performed the search. This approach is both conceptually sound from a conflict-of-laws perspective and consistent with the most commonly identified goals of state exclusionary rules: deterring police misconduct, preserving judicial integrity, and maintaining the public’s trust in government.

I. exclusionary doctrine

Exclusionary doctrine is a prime example of the need to know the past to understand the present. The federal exclusionary rule provides that evidence may be inadmissible in a criminal trial if it is obtained in violation of the Fourth Amendment, which provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”28 Although it was originally conceived as a constitutionally mandated remedy,29 the rule has since evolved into a prudential doctrine premised on the theory that exclusion deters police misconduct.30 Following that logic, the Court has carved out a number of exceptions to the rule when exclusion is unlikely to further deterrence. Meanwhile, as the federal rule has evolved, state constitutions have spawned their own exclusionary rules, and state courts have developed exclusionary doctrines that overlap and diverge from the federal doctrine.

This Part traces the development of the federal rule and its state-law counterparts before providing a brief overview of current law. It does not take a side in any of the enduring debates surrounding the rule’s constitutionality or normative appeal. Instead, this Part describes the law as it stands to explain how current doctrine should inform conflict analyses. Two observations are significant. First, deterrence has played an outsized role in the development of state and federal exclusionary doctrine. Second, while different exclusionary rules may not be constitutionally mandated, they are constitutionally rooted. In other words, they are tied to the particular constitutional provisions that they protect. It would not make sense to employ an exclusionary rule derived from one constitutional provision to remedy the violation of another constitution’s analogue. The approach proposed in Part IV is faithful to these core features of exclusionary doctrine.

A. The History of the Federal Exclusionary Rule

While the development of the exclusionary rule can be traced at least as far back as the mid-1880s,31 most commentators agree that the genesis of the modern rule was the Supreme Court’s 1914 decision in Weeks v. United States.32 There, the Court excluded evidence unlawfully obtained by federal officers.33 It reasoned that exclusion was “obligatory upon all entrusted under our Federal system with the enforcement of the laws” in order to give “force and effect” to the Fourth Amendment.34 “To sanction such proceedings,” the Court declared, “would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against . . . unauthorized action.”35

Yet as sweeping as this language seems, the exclusionary rule’s application was for years narrowly cabined to federal prosecutions. It was not until Wolf v. Colorado36 in 1949 and, more importantly, Mapp v. Ohio37in 1961 that the Court held that the Fourth Amendment and the federal exclusionary rule apply to all prosecutions, state and federal. In Wolf, the Court incorporated the Fourth Amendment against the states, but left the states free to devise and apply remedies other than the exclusionary rule to vindicate defendants’ Fourth Amendment rights.38 The Court then eliminated state courts’ remaining discretion in Mapp.39 It held that the states were obligated to impose the same remedy—the exclusionary rule—to state and federal prosecutions involving Fourth Amendment violations. Just as the Fourth Amendment was incorporated against the states, “it was logically and constitutionally necessary that the exclusion doctrine—an essential part of the right to privacy—be also insisted upon as an essential ingredient of the right.”40 Indeed, because earlier Supreme Courts understood the rule to be constitutionally mandated, its incorporation against the states was virtually inevitable.

But this understanding of the exclusionary rule changed dramatically in 1974. In United States v. Calandra,41the Supreme Court held that the exclusionary rule was not a “personal constitutional right,” but a mere “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.”42 With that decision, the federal rule was both downgraded from a constitutional requirement and repositioned as a remedy applicable only when justified by a single purpose: deterrence.43 The result is that while state44 and federal courts are still required to consider the exclusionary rule in the case of a Fourth Amendment violation, they are no longer required to apply it in every case. Calandra empowered the Supreme Court to create exceptions to the exclusionary rule when its costs outweigh its potential to deter police misconduct. According to the Court, the rule “is neither intended nor able to ‘cure the invasion of the defendant’s rights which he has already suffered.’”45 Instead, it is a prudential doctrine that applies only as a “last resort” when “‘its remedial objectives are thought most efficaciously served’—that is, ‘where its deterrence benefits outweigh [the] substantial social costs’” of excluding potentially probative evidence.46 As will be discussed, this doctrinal shift was not without repercussions.

B. The History of State Exclusionary Rules

As the Supreme Court cut back on the scope of individual rights and remedies in the decades after the Warren Court, states increasingly developed their own, more protective constitutional law.47 By 1986, Justice Brennan was able to reflect on the trend and declare that the “[r]ediscovery by state supreme courts of the broader protections afforded their own citizens by their state constitutions . . . is probably the most important development in constitutional jurisprudence in our time.”48

This resurgence is particularly evident in state search-and-seizure law.49 All fifty states have some analogue to the Fourth Amendment that protects individuals from unlawful searches.50 Textually, the provisions run the gamut from those that are nearly identical to the Fourth Amendment to those that differ dramatically.51 But the degree of textual similarity to the Federal Constitution has not necessarily determined a particular analogue’s interpretation. State constitutional decisions vary widely, even for provisions that are textually identical to the Fourth Amendment.52 Some courts engage in “lockstep” analysis, interpreting their constitutions to provide no more or less protection than the Federal Constitution. Others have taken a more activist approach.53 Consider the third-party doctrine, which under federal law leaves items like telephone records, bank records, and trash without Fourth Amendment protection.54 Kentucky has interpreted its constitution to mirror the Fourth Amendment,55 but its neighbor, Illinois, has explicitly found that telephone records and bank records do enjoy some protection under its constitution.56

Following the Supreme Court’s lead, many states have also adopted a state-based exclusionary rule to give effect to their Fourth Amendment analogues.57 And like state interpretations of substantive search-and-seizure rights, state exclusionary doctrines differ from the federal rule—both as to the purposes that guide the application of their rules and as to how a particular purpose should be effectuated. Most states have not questioned the Supreme Court’s determination that deterrence is the primary—if not exclusive—purpose of exclusionary doctrine.58 But some maintain that the exclusionary rule should also be applied to ensure the integrity of the judiciary, to maintain the public’s trust in government, or to protect individuals’ privacy.59 The difference can be consequential. Because the Pennsylvania Supreme Court has held that its exclusionary rule serves to deter police misconduct and to vindicate individuals’ privacy rights, it does not recognize a good-faith exception.60 Thus, evidence obtained because the police relied in good faith on a warrant lacking probable cause is inadmissible in court.61 Yet just across the border in Ohio, such evidence is admissible. The Ohio Supreme Court has interpreted its Fourth Amendment analogue to be coextensive with the Federal Constitution and hence the state’s exclusionary doctrine turns entirely on whether exclusion will deter future police misconduct.62

Other states agree that deterrence is the primary goal of the exclusionary rule but disagree about how that goal should be operationalized. The New York Court of Appeals, for example, rejected the good-faith exception, finding that exclusion of unlawful evidence, even if obtained in good faith, could deter police misconduct: “[I]f the People are permitted to use the seized evidence, the exclusionary rule’s purpose is completely frustrated, a premium is placed on the illegal police action[,] and a positive incentive is provided to others to engage in similar lawless acts in the future.”63 In contrast, Missouri, like Ohio, has interpreted its analogue to be coextensive with the Federal Constitution and has therefore fully adopted the Supreme Court’s good-faith reasoning.64

Of course, this is just a sampling of the variations in state search-and-seizure law. Other states have interpreted both their Fourth Amendment analogues and their derivative exclusionary rules expansively.65 But while the multiplicity of state analogues continues to produce interstate search-and-seizure conflicts, it is significant that most of the analogues place particular weight on the deterrence rationale.66

C. The Connection Between a Constitutional Violation and the Exclusionary Remedy

Despite their differences, the Fourth Amendment exclusionary rule and state-based exclusionary rules share one crucial feature: though they may not all be constitutionally mandated, they are all constitutionally rooted. Consider the federal rule. Some have argued that it is mandated so long as other Fourth Amendment remedies are inadequate.67 Others maintain that it is mandated as a result of the interaction between the Fourth Amendment and other constitutional provisions, like the Due Process Clauses.68 And some, like the current Supreme Court, understand the exclusionary rule to be entirely prudential. But even proponents of the prudential view have never suggested that the federal rule is untethered to the Fourth Amendment. The Court, for example, has described it as a “judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect.”69 Indeed, modern doctrine must understand the rule to be somehow derivative of the Constitution if only to justify the rule’s continued incorporation against the states.70 After Mapp, it is taken for granted that the federal remedy follows the federal violation. No state would ever hold that there was a federal violation but then apply its own state rule to remedy that violation. Equally telling, federal courts do not apply the federal exclusionary rule to remedy state constitutional violations.71

Similarly, no state has suggested that its exclusionary rule exists apart from its Fourth Amendment analogue. States that have adopted their own exclusionary rules agree that the rule is a remedy designed to safeguard defendants’ search-and-seizure rights, though they disagree as to its exact constitutional status.72 For its part, the Supreme Court has given states a wide berth in developing their own doctrine. “The States are not foreclosed,” according to the Court, “from using a . . . balancing approach to delineate the scope of their own exclusionary rules.”73 The people of a given state “could permissibly conclude that the benefits of excluding relevant evidence of criminal activity do not outweigh the costs when the police conduct at issue does not violate federal law.”74 Hence some courts, like Idaho,75 maintain that their rules are constitutionally required. Others, like Connecticut,76 have implicitly or explicitly followed the Supreme Court’s logic and held that their constitutions do not always require the exclusion of unlawfully obtained evidence and hence their exclusionary rules are not constitutionally mandated. Finally, some, like Utah,77 have never resolved the question of whether their rules are constitutionally required.

Nevertheless, while the precise relationship may vary, every state’s exclusionary rule is tied to its constitution. This is clear from the various state court articulations of the remedy. Consider again the exclusionary rules applied in Pennsylvania and Ohio.78 Based on its interpretation of its own state constitution, the Pennsylvania Supreme Court has established an exclusionary rule premised on two purposes—deterring police misconduct and vindicating individuals’ privacy rights. In contrast, the Ohio Supreme Court has interpreted its constitution to provide for an exclusionary rule premised only on deterring police misconduct. The two rules apply differently, as they do in the good-faith context, even when the police misconduct at issue is the same.79 Such distinctions in how an exclusionary rule is understood are only possible if each exclusionary rule is uniquely derivative of the text the state court is interpreting. In other words, it is impossible to apply an abstract exclusionary rule without first determining which constitution is at play because that constitution provides the applicable exclusionary rule.

This feature of state exclusionary rules has important consequences for conflict analyses. As discussed in Part III, courts frequently err either by ignoring the fact that an exclusionary rule exists to protect an underlying constitutional provision or by attempting to apply an exclusionary rule without first determining which state’s constitution applies. Equally problematic, many courts have adopted conflict rules that fail to deter police misconduct. The following Parts demonstrate that these problems are significant and avoidable. But first, some background on the constitutional limitations and theoretical insights that have guided the development of the broader conflict-of-laws field is in order.

II. constitutional and theoretical guideposts for conflict-of-laws analyses

In an era when constitutional and statutory law increasingly limit judicial discretion,80 it may seem strange that state courts have been able to develop so many approaches to resolving interstate search-and-seizure conflicts. As will be shown in Part III, five distinct methods have emerged. Such diversity is not abnormal in the conflict-of-laws field, which remains one of the few areas where judicial discretion is the rule rather than the exception. Congress and state legislatures have largely ignored the field, leaving the Supreme Court to articulate standards based on constitutional text alone.81 And as currently interpreted, the Federal Constitution provides only minimal constraints on judicial law making. While some have advocated for greater attention to constitutional restrictions,82 modern Supreme Court interpretations have effectively left state courts free to exclude or admit evidence based on any of the laws involved. It is not surprising, then, that common law making, heavily influenced by academic scholarship, has filled the void. The resulting history of conflict-of-laws theory and practice, from the rise and fall of the First Restatement to the proliferation of modern theories, offers important insights that should guide the development of new theories. Most importantly, new theories should be sensitive to the purposes and intended reach of the laws in dispute. This Part summarizes the sparse constitutional limitations on a court’s choice-of-law approach and outlines the field’s theoretical and judicial history. As will be discussed, the solution presented in Part IV is faithful to both the Constitution and conflict-of-laws theory.

A. Constitutional Limitations

Under current law, the Full Faith and Credit Clause83 and the Due Process Clause84 are the primary constitutional constraints that govern conflicts of law. Allstate Insurance Co. v. Hague effectively collapsed the inquiries under both clauses into a single test85: “[F]or a State’s substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair.”86 The Hague Court applied this standard by considering the number of contacts the forum state had with that particular case, which involved an insurance dispute arising from a car accident in Wisconsin. For example, it noted that the insured decedent, Ralph Hague, had worked in Minnesota and thus that Minnesota had an interest in his welfare.87 And it determined that because the insurance company did business in Minnesota, the state had an interest in regulating the company’s Minnesota-related insurance obligations. Finding that these contacts were sufficient, the Court affirmed the application of forum law and ultimately established an enduring doctrine marked by extreme deference to lower courts’ choice-of-law decisions.88

The Court has strayed from this highly deferential position in strikingly few cases.89 In the words of Justice Jackson, “it [is] difficult to point to any field in which the Court has more completely demonstrated or more candidly confessed the lack of guiding standards of a legal character than in trying to determine what choice of law is required by the Constitution.”90 Thus, “‘it is frequently the case’ that ‘a court can lawfully apply either the law of one State or the contrary law of another.’”91

Yet despite the laxity of current doctrine, most conflict scholars agree that conflict theories should be sensitive to constitutionally derived federalism concerns.92 Most relevant here, a state should not discriminate against another state’s law by favoring forum law. The Second Restatement provides that “[i]n formulating rules of choice of law, a state should have regard for the needs and policies of other states and of the community of states.”93 Put simply, courts should avoid choosing forum law because it is forum law. Such forum bias is at least in tension with the Full Faith and Credit Clause.94 And from a policy perspective, it destroys uniformity, encourages forum shopping, and aggravates interstate tensions.95

The bottom line for interstate search-and-seizure cases is that states will almost always be doctrinally justified in applying either the law of the situs or the law of the forum to a given dispute. The situs state will always have a satisfactory contact either because the searching officer was from the situs state or because the search occurred in the situs state. And the situs state will always have a corresponding interest in either the conduct of its officers or the search procedures used within its borders. The same will also be true of the forum state. Because courts only have jurisdiction over criminal matters that occur within their borders or have effects within their borders,96 the forum state will always have a sufficient contact and will always have an interest in the prosecution of crimes committed within its borders. Even adding the prescription that courts should, at least as a normative matter if not a constitutional matter, choose a nondiscriminatory conflict rule, the restrictions on a court’s choice of approach are minimal.

B. Theoretical Insights

The dearth of constitutional guideposts has given scholars and lower-court judges considerable leeway to decide how conflicts of law should be resolved. In the last century, there has been no shortage of theories designed to bring order to the esoteric field,97 and current doctrine continues to bear the fingerprints of the debates that have raged in the academy. Those debates shed light on the complexities of current law and offer valuable insights that can inform new theories.

Joseph Beale authored the First Restatement of Conflict of Laws, the earliest conflict-of-laws approach still used today, in 1934.98 Premised on the principles of territoriality and vested rights,99 Beale’s theory sought to systematize the law by creating rules that turned on where the last act necessary to create a cause of action occurred.100 Because a state’s law was understood to apply only to events that occurred within its borders, that last act was where the parties’ rights vested and hence that state’s law, according to Beale, should govern the case.101 In torts cases, for example, the crucial last act occurred in the place of injury, so the law of the place of injury was the appropriate choice of law.102

While this approach briefly enjoyed widespread acceptance in the courts, it ultimately failed the test of time.103 While a handful of states still follow at least some of the First Restatement’s rules, most have rejected the approach.104 The reason is twofold. First, Beale’s understanding of law as inherently territorial was increasingly questioned and ultimately rejected.105 Second, and more importantly for purposes of this analysis, the First Restatement came to be judged more and more on the basis of its practical results as its theoretical justification lost favor.106 And those results, it turns out, were not satisfactory. A single factor that often did not correspond with any relevant issue in the case took on overriding importance. Cases involving no contacts with a given state other than the all-important territorial connection were subject to the most criticism for appearing arbitrary and therefore unjust.107

Of course, any rules-based system is likely to appear unjust in some cases—that is the price the legal system pays for predictability and consistency. While some have maintained that rules are anathema to the just resolution of conflicts,108 that position has generally become more nuanced over the years. Even the fiercest critics of single-factor theories acknowledge that they can be appropriate when justified by the substance of the competing laws.109

For this reason, the First Restatement’s reliance on rules was not its most damning feature. The First Restatement seemed unjust because its rules could not be justified by the substance of the laws in dispute.110 The key insight of modern theorists was that law is a tool of state policy. Hence a state would not want its law to apply if a state policy would not be advanced.111 According to modern theorists, the First Restatement erred by giving controlling weight not to “economic and social objectives,” but to “technical and arbitrary rules relating to the place” of a particular event.112 This criticism eventually took hold in the judiciary, which was increasingly unwilling to sacrifice state policy objectives on the basis of a single territorial factor.113 To this day, the consensus view is that conflict approaches should be sensitive to the substantive policies underlying any potentially applicable laws.114

As the First Restatement faded from the limelight, conflict-of-laws scholars began formulating a variety of “modern” theories that rejected unremitting territorialism and instead privileged the policies behind state laws as well as factors like the reasonable expectations of the parties.115 The capstone of the so-called “choice-of-law revolution” was the publication of the Second Restatement, which aggregated a number of modern approaches. The Restatement authors instructed courts to apply, based on the consideration of a number of factors, the law of the state with the “most significant relationship” to the dispute.116 Though often criticized by scholars, the Second Restatement’s approach now dominates the courts.117

This history yields important insights that can and should guide the development of new approaches to conflict cases. In addition to demonstrating sensitivity to federalism concerns, new theories should consider the purpose of the laws they seek to apply.118 Ignoring the substance of the relevant laws risks the same arbitrary results that heralded the downfall of the First Restatement.

The most recent work in the conflict-of-laws field draws on this and other lessons from the history of conflict-of-laws development. The Reporter for the forthcoming Third Restatement of Conflict of Laws, Kermit Roosevelt III, has argued that conflict-of-laws theories can and should be understood through the lens of a two-step framework.119 Because that model has gained widespread support among scholars and is anticipated to be the foundation for a forthcoming Third Restatement,120 it provides the theoretical framework for the search-and-seizure approach proposed in Part IV. Drawing on the work of Brainard Currie and Larry Kramer, Roosevelt argues that courts resolving conflicts of law must first consider the scope of the relevant laws, and second, determine which law should be given priority.121

To determine the scope of the relevant laws, courts should simply use ordinary legal analysis to determine whether the laws reach the facts of the controversy.122 For example, if a state legislature has explicitly provided that its law reaches a given controversy, then the controversy should be understood to fall within the law’s scope.123 The proposed Third Restatement explains that this analysis involves “deciding to which people, in which places, under which circumstances, [the state laws] extend rights or obligations.”124 If only one state’s law reaches the facts of the case, there is no conflict, so the analysis ends; the only applicable law controls the case.

On the other hand, if there is a conflict, Roosevelt advises that courts should proceed to the second step: assigning priority, based on forum law, to one of the applicable laws.125 Different rules of priority are possible, but the Third Restatement explains that priority rules should be informed by modern conflict-of-laws thought. For example, they should “generally seek to provide sensible, rather than arbitrary, answers to choice-of-law questions, so that states’ policies are not needlessly thwarted.”126

In sum, the lack of constitutional or statutory constraints has made space for considerations based on the traditional preoccupations of the common law: reason, history, and experience.127 Insights from history and modern scholarship provide a rubric for judging both current and proposed approaches. The discussion that follows elaborates on the importance of performing the two-step analysis described above and uses that framework as the foundation for the novel approach proposed in Part IV to resolve search-and-seizure conflicts of law.

III. existing approaches to interstate search-and-seizure conflicts of law

Given the lack of theoretical consensus in the broader conflict-of-laws field, it is unsurprising that courts have adopted a variety of approaches to resolving interstate search-and-seizure conflicts of law. This Part outlines and evaluates current approaches. While they are not always distinct and independent,128 a few archetypes are discernible. The first is the application of forum law based on the notion that the exclusionary rule is procedural. Alternatively, some courts favor the universal application of either situs or forum law. Others use multifactor tests or perform a type of state-constitutional-law analysis. Finally, there is the majority approach: application of the forum state’s (or some other state’s) exclusionary rule to determine which state’s law would best serve the interests of deterrence and any other purposes underlying a particular state exclusionary rule.

A. Application of Forum Procedural Law

Since the days of the First Restatement, courts have adhered to a basic rule: questions of procedure, as opposed to substance, should be resolved according to forum law.129 Procedural issues, in contrast to those “concerned primarily with the rights and liabilities of the parties,” involve the procedure by which controversies are brought into [a state’s] courts and by which the trial of these controversies is conducted.”130 And according to longstanding practice,131 the First Restatement,132 and the Second Restatement,133 questions regarding the admissibility of evidence are procedural. It follows, according to some courts, that forum law should determine the admissibility of evidence alleged to have been illegally seized.134 But despite its appealing simplicity, this approach ignores the constitutional violation that underlies every case involving an exclusionary rule and discounts the significant public policy goals served by different exclusionary rules.

The reasoning of the Texas Court of Criminal Appeals in Burge v. State135 is typical of this approach. At issue was the admission of evidence obtained by Oklahoma and Texas law enforcement officers who searched the defendant’s home in Oklahoma after receiving permission from the defendant’s wife. In Texas, spouses could consent to such a search, but in Oklahoma, they could not. The court ruled that the evidence was admissible even though it was unlawfully obtained under situs law because “the law of the forum (Texas in this case) governs as to procedure and rules of evidence.”136 The Court explained briefly: “[a]ny other view would lead to endless perplexity.”137

To be sure, the Second Restatement classifies the “proper form of action, service of process, pleading, rules of discovery, the admissibility of evidence, mode of trial and execution and costs”138 as procedural. And it makes sense that these issues, including run-of-the-mill evidentiary questions, are governed by forum law. The forum is “more concerned with how its judicial machinery functions and how its court processes are administered than is any other state,” and applying any other law would compromise the efficiency and convenience of trials without “further[ing] [] the values that the application of another state’s local law is designed to promote.”139

But characterizing the exclusionary rule as procedural ignores the connection between a state’s Fourth Amendment analogue and its exclusionary rule. Because exclusionary rules remedy a violation of state law, any choice to apply a specific exclusionary rule is also a choice about which state’s Fourth Amendment analogue should apply. And neither the First nor the Second Restatement suggests that the right to be free from unreasonable searches is procedural. Whether that right was violated bears no relationship to “judicial administration.”140

Similar logic undergirds the consensus view that “remedial issues are so bound up with substantive issues that they ought to be decided according to the same law that governs the substantive issues.”141 Just as questions related to the measure, extent, or amount of damages in tort are treated as substantive,142 so too should be questions of exclusion under state constitutional law. Treating the question as procedural ignores the exclusionary rule’s remedial purpose and effectively equates the underlying legality of a search with “judicial administration.”143

Moreover, even if the underlying constitutional violation is ignored, courts following Burge’s logic are valorizing form over substance by treating as procedural a rule that furthers important policy goals like deterrence. Scholars and courts have long criticized unthinking invocations of the “substantive” and “procedural” labels without considering the purposes underlying the relevant laws.144 According to the Second Restatement, a court should only classify a law as procedural if it is “convinced that the policy underlying the distinction between substance and procedure in choice-of-law dictates such result.”145 While the line between substance and procedure is far from clear, the Second Restatement suggests that the procedural characterization is generally appropriate for issues related to the administration of court processes. Courts should consider whether “an effort to apply the rules of the judicial administration of another state would impose an undue burden upon the forum,” whether the parties are likely to have relied on a particular law before entering into a legal transaction, whether the choice of law is likely to affect the resolution of the case, and whether “the precedents have tended consistently to classify [an] issue as ‘procedural’ or ‘substantive.’”146 Where a law “goes beyond questions of trial administration and is primarily designed to affect decision of a particular issue,” the forum should treat it as substantive.147 In particular, if a rule “singles out a relatively narrow issue” and gives it “peculiar treatment,” the rule is likely substantive.148

Presumably for these reasons, the Second Restatement has classified a number of evidentiary rules as substantive. One example is certain privileged communications. Courts are generally instructed not to apply forum law indiscriminately, but to apply the substantive law of the case to determine whether to admit privileged evidence. They are not simply to apply forum law in all cases.149This departure from the general rule that evidentiary questions should be governed by forum law is likely because, unlike other evidentiary rules, privilege rules “subordinate the goal of truth seeking to the broader societal interests of protecting certain relationships and encouraging socially desirable confidences.”150

State exclusionary rules are at least as substantive as state privilege regimes. Like privileges—and unlike rules of evidence that seek to ensure the accuracy of relevant facts and the efficiency of trials151—exclusionary rules implicate substantive policy concerns, specifically those surrounding the administration of the criminal justice system. They exist, depending on the interpretation of a particular state’s constitution, to deter police misconduct, to ensure the integrity of the judiciary, and to maintain the public’s trust in the judiciary.152 Unthinking application of forum law brushes these constitutionally rooted rationales aside and demotes the exclusionary rule to a mere principle of administration.

B. Territorialist Approaches

Other courts confronted with interstate search-and-seizure conflicts of law have adopted essentially per se territorial rules in favor of either forum or situs law. Both territorialist approaches are unsatisfactory. Because neither approach considers the policies underlying the exclusionary rule, both frequently produce arbitrary results that have little to do with the purposes of exclusionary doctrine.

For instance, in People v. Price,153 the New York Court of Appeals upheld the admission of evidence obtained by Los Angeles officers, allegedly in contravention of situs law. The defendant argued that the police violated California law when they used a trained dog at a Los Angeles airport to detect drugs in his luggage.154 Instead of considering the applicability of situs law, the court simply declared that the case “d[id] not involve a conflicts-of-law question.”155 The court held that the dog’s reactions were used to justify a subsequent search warrant issued by a New York court, and thus the case involved “a question of whether or not the use of [a] dog is proscribed by either Federal or New York law, constitutional or statutory.”156 And because the defendant’s rights had not been violated under either federal or New York law, the evidence was admissible.157 Other courts have also fallen back on per se rules in favor of forum law, though they have offered little explanation for their choice of approach.158

John Corr has offered the most sustained and thoughtful justification for consistently applying one law with few exceptions, though he proposes application of situs law.159 The most important benefit of this approach, according to Corr, is its ability to “bring a needed measure of predictability to police work.”160 To be sure, bright-line rules promote predictability, which is particularly important, as will be discussed, when deterrence is the goal.161

But the onslaught of scholarly and judicial criticism of the First Restatement demonstrates that mechanically applying a territorialist rule will produce unsatisfactory results in some set of cases because the rule will privilege a factor that is generally unrelated to the substance of the relevant laws.162 Interstate search-and-seizure cases are not immune to this criticism. It is not hard to imagine a situation in which mechanical application of either situs or forum law would result in an arbitrary outcome. Consider a case in which situs officers, operating within the situs state, discover evidence of a forum crime while independently investigating a situs crime. Assume that the evidence was lawfully obtained under situs law but unlawfully obtained under forum law and inadmissible under the forum state’s exclusionary rule. In that case, few would argue that unthinking application of forum law and its exclusionary rule provides a satisfactory answer. At least one key purpose of the forum state’s exclusionary rule—deterrence—would not be furthered: the foreign officers in this and similar future cases could not be expected to know that forum law was involved, let alone what forum law required.163 Mechanical application of forum law would therefore needlessly sacrifice probative evidence and, by extension, the effective administration of the forum state’s criminal justice system with no hope of effectuating one of the exclusionary rule’s most important purposes. Nor is it immediately clear that other state-articulated reasons would support application of forum law. It would be hard to argue, for example, that a defendant’s right to privacy mandates application of forum law when the evidence was located in the situs state and discovered during the investigation of a situs crime.

Moreover, the risk of arbitrary application does not run in one direction. Though no court appears to have adopted a per se rule in favor of situs law, that too could trigger unjust results. Consider a situation in which forum officers unwittingly follow a defendant into another state before performing a search of the defendant’s automobile. Mechanical application of situs law would require the court to hold the forum officers accountable to situs law, even if they did not know that they had crossed a state line. Again, neither deterrence nor a concern for the defendant’s privacy rights supports this outcome. The forum officers could not be expected to know and abide by situs law, and the defendant’s right to privacy should not justify application of situs law merely because he or she changed locations while the police were in pursuit. It is unlikely that the defendant’s reasonable expectation of privacy changed the moment he or she crossed a state line.

In fact, Corr, the primary defender of the situs-law approach, admits that mechanical application of situs law will sometimes be inappropriate. He permits exceptions when accompanied by a “coherent” explanation of “why the normal rule of situs should not apply.”164 For example, Corr argues that a court should not apply situs law if forum police officers have manipulated their investigation so that less defendant-protective law applies. He reasons that the police in that hypothetical case are acting as “vigilantes with badges who seek to frustrate the purpose behind their own state’s exclusionary rules.”165 Thus, in reality, his preferred approach is a presumption in favor of situs law that can be overcome based on judicial discretion and an analysis of the purposes underlying a particular state’s exclusionary rule. This approach resembles the exclusionary-rule approach considered in Section III.E. It is enough to say here that without such safety valves, this type of territorial-based rule is unsatisfactory because it yields arbitrary results with no justification grounded in the substantive policies underlying a state’s exclusionary rule.

C. Multifactor Conflict-of-Laws Approaches

A few courts have taken the opposite approach. Rather than resort to a traditional territorial-based rule or the longstanding distinction between substance and procedure, they have adopted one of the multifactor conflict-of-laws approaches that have arisen in the last century (or they have created a unique multifactor approach that draws on the factors used in more than one of the recently developed approaches). These multifactor approaches, which generally reject mechanical rules divorced from the “real reasons relevant to the functions of law in our society,”166 include state-interest analysis, the better-law approach, and the center-of-gravity test.167 Regardless of its exact form, each suffers from a number of common problems as applied in the search-and-seizure context. Few if any of the courts that take this approach perform what should be the first step in any conflict-of-laws analysis: determining whether a particular search and seizure was governed by two state constitutions. More importantly, none of these approaches have been applied in ways that are sufficiently sensitive to the policies underlying exclusionary doctrine. And most of these approaches suffer from some degree of problematic forum bias.

The Rhode Island Supreme Court’s decision in State v. Briggs168 is illustrative of a multifactor approach. In Briggs, the court upheld the admissibility under Rhode Island (forum) law of evidence seized in New Hampshire by New Hampshire and Rhode Island officers.169 The police searched the defendant’s trash bag after following the defendant’s neighbor and watching him dispose of it.170 Under New Hampshire law, but not Rhode Island law, the defendant claimed he had standing to challenge the search and that the prosecution carried a heavier burden of proof to obtain admission.171 To resolve the dispute, the court declared that Rhode Island had adopted the “interest-weighing approach” to resolving conflicts of law.172 The court then recited the factors identified in its conflict-of-laws case law: “(1) [p]redictability of results[,] (2) [m]aintenance of interstate and international order[,] (3) [s]implification of the judicial task[,] (4) advance[ment] of the forum’s governmental interest[,] and (5) [a]pplication of the better rule of law.”173 In this case, the court held that the balance of interests favored forum law. The crime was committed in Rhode Island and the trial was held in Rhode Island. The victim was a resident of Rhode Island, the defendant “had at least a friendly relationship with the victim . . . in the State of Rhode Island,” and many of the State’s witnesses “either reside[d] or [were] employed, or at the least were [in the state], when th[e] homicide took place.”174 And the State “ha[d] an interest in apprehending those who commit[ted] crimes within its borders and prosecuting those accused according to its laws.”175

Other courts have taken similar approaches that require a balancing of various factors.176 And like the Briggs court, none appears to have considered whether another conflict-of-laws approach would be preferable or to have explained why it was appropriate to adopt the particular approach that it did.

As a threshold matter, courts applying these approaches neglect to determine whether two state constitutions apply, and instead proceed directly to the conflict-of-laws analysis.177 As in other contexts, this is problematic because only when an officer is bound by two conflicting laws is it necessary to perform a full conflict-of-laws analysis. Consider again the facts of Briggs. If Rhode Island’s Constitution does not bind state actors operating out of state, then only the strictures of the New Hampshire Constitution are relevant.178 It is thus critical for a court to first interpret the relevant constitutions to determine whether the forum state’s constitution applies extraterritorially or the situs state’s constitution applies to out-of-state officers acting in the situs state.179

Moreover, even assuming that two laws conflict, the multifactor choice-of-law theories suffer from additional flaws. Most troubling, courts give too little weight to the purposes of the exclusionary rule and too much weight to factors irrelevant to the administration of the criminal justice system. In theory, multifactor approaches should give different weights to different factors depending on the context of a given case. The drafters of the Second Restatement, for example, wrote that the lists of factors provided in the Restatement are not exclusive.180 Instead, not only the lists but the weight of the factors in those lists should depend on the case.181 The domicile of the parties, for instance, may be important in some tort cases, but is usually given substantially less weight than the state where the disputed conduct occurred because that state “has an obvious interest in regulating the conduct of persons within its territory and in providing redress for injuries that occurred there.”182 In the interstate search-and-seizure context, the domicile of the parties, the location of the witnesses, and similar factors have nothing to do with either state’s interest in promoting the purposes (e.g., deterrence) that underlie their exclusionary rules.183 As a result they should, at the very least, be given substantially less weight than they are currently given in cases like Briggs.

To be sure, some courts that adopt one of these approaches do consider some variant of “governmental interest” when performing their analyses, but they often mischaracterize what the governmental interest is. In Briggs, for example, the court determined that Rhode Island “has an interest in apprehending those who commit crimes within its borders and prosecuting those accused according to its laws.”184 This description is too general. Each of the states involved in a conflict case have a specific interest in furthering the purposes underlying their exclusionary rules. Characterizing the relevant interests in any other way risks compromising those purposes,185 which can include deterrence, ensuring the integrity of the judicial system, and maintaining the public’s trust in government.186 Indeed, the Briggs court gave no attention to whether the conflict rule it announced would actually further the goal of deterring police misconduct or any of the other values underlying Rhode Island’s or New Hampshire’s exclusionary rules.

Finally, multifactor conflict-of-law theories usually result in application of forum law.187 As a result, they raise the same concerns discussed in Section III.B: they will frequently dictate application of forum law even when application of that law offers no deterrence-related or other benefits. Together these flaws make modern multifactor theories, as applied by the courts, a poor fit. Current courts fail to perform the necessary threshold inquiry into whether two laws conflict, mischaracterize the relevant state interests, and are prone to be inappropriately biased in favor of forum law.

D. State-Constitutional-Law Analysis

A fourth approach that has gained traction among courts focuses exclusively on the state constitutional question. Courts that employ this approach typically begin by correctly considering whether the forum state’s constitution should be interpreted to apply extraterritorially to the officers or defendants. But the courts end their analyses too soon. Instead of considering whether both constitutions apply and, if both apply, determining in a separate analysis which should prevail, they generally ignore the potential applicability of situs law. To be clear, these courts may not consider themselves to be engaging in a conflict analysis. But that is the effect when they explicitly or implicitly refuse to apply a potentially relevant state law. Viewed in that light, the approach is unjustifiably biased in favor of forum law.

In State v. Davis,188 for example, the Oregon Supreme Court upheld the admissibility of evidence obtained in Mississippi by Mississippi officers because there was no violation of Oregon (forum) law. Pursuant to a fugitive warrant issued in Mississippi for arrest warrants issued in Oregon, Mississippi officers arrested the defendant in his mother’s home in Mississippi.189 The defendant argued that the arrest violated Oregon law because it was effectuated without a search warrant for his mother’s house.190 Interestingly, the court agreed that the Oregon Constitution applied to the Mississippi officers. Based on constitutional text and precedent, the court concluded that the forum constitution protected all in-state defendants: “It does not matter where . . . evidence was obtained (in-state or out-of-state), or what governmental entity (local, state, federal, or out-of-state) obtained it; the constitutionally significant fact is that the Oregon government seeks to use the evidence in an Oregon criminal prosecution.”191 But the court went on to hold that there was no violation of either the Oregon or Federal Constitution. The evidence, according to the court, was therefore admissible.192

In so holding, the court failed to consider the third relevant source of law: the Mississippi Constitution. At no point did it ask whether the officers were bound by the Mississippi Constitution and, if so, why it was appropriate to apply forum law instead of situs law. Nor, for that matter, did it explain why it chose to adopt this particular approach rather than any of the other approaches discussed in this Part.193

Courts that hold that the forum constitution does not apply are most likely to resolve the case correctly, in part because they are left without a conflict.194 The only remaining question is whether the situs state’s constitution governs in addition to the U.S. Constitution. In these cases, courts have, to varying degrees, considered the applicability of situs law. But courts do not always give appropriate weight to situs law, and at least one court has failed to consider whether situs law applies at all—even after it found that forum law did not apply. In State v. Rivers,195 the Supreme Court of Louisiana considered the legality of an automobile search performed by Alabama officers in Alabama. Instead of explicitly determining whether both the Alabama and Louisiana Constitutions applied, the court simply held that “[s]ince th[e] search occurred in Alabama, [the court is] not concerned with provisions of the Louisiana Constitution, Article I, Section 5,” and proceeded to determine only whether there was a Federal Constitutional violation.196 It offered no explanation for its failure to consider the applicability of the Alabama Constitution.

This tendency to give insufficient attention to situs law contravenes the basic conflict-of-laws principle that forum bias—which destroys uniformity, encourages forum shopping, and aggravates interstate tensions—should be minimized. Whether for constitutional or normative reasons, modern theorists generally strive to craft objective tests that can identify the appropriate law in a way that is rational, predictable, and fair.197 Perhaps these courts believe that constitutional law deserves special consideration and should be permitted to circumvent this fundamental goal. But thus far, courts and scholars have failed to articulate and defend any such theory. And in practice, courts have treated constitutional provisions no differently than other forms of law,198 which suggests that there is little support for a special rule permitting forum favoritism in constitutional cases.

To be clear, the instinct to consider whether a constitution applies to a particular search is correct. The problem with this approach is that current courts are failing to consider the applicability of all the potentially relevant laws.

E. Exclusionary-Rule Analysis

“Exclusionary-rule analysis,” as some courts have called it,199 enjoys the most widespread judicial and scholarly support.200 Because it is sensitive to the policies behind exclusionary doctrine, it approaches the right answer. But it is still not quite right. While there are analytic variations in the cases that adopt this approach, these courts usually assume that the facts of a given case fall within the territorial scope of the two disputed laws and then admit or exclude the disputed evidence based on whether exclusion would further the exclusionary-rule values (e.g., deterrence) of the forum or some other state. Put differently, the courts fail to distinguish between the many steps needed to resolve a search-and-seizure conflict. They do not decide whether two laws reach the facts of a case; if so, which of those laws should prevail; whether there was a violation of that state’s law; and then finally whether that state’s exclusionary rule demands exclusion. They simply decide the entire question in one analytical step.

As will be discussed, this analysis produces three issues. Most obviously, the courts fail to perform the necessary first step of determining whether two laws apply to a case. This, then, leads to a second problem: by not choosing one law to provide both the constitutional law and the exclusionary doctrine, courts risk mismatching the exclusionary rule designed to protect one constitutional provision with a constitutional provision that has its own, separate exclusionary doctrine. And finally, the results in these cases consistently diverge even though each court ostensibly bases its decision on similar exclusionary-rule purposes. As argued in Part IV, a more predictable approach would better serve at least the deterrence rationale.

The Florida Supreme Court’s decision in Echols v. State201exemplifies this type of analysis. At issue was whether forum law should apply to out-of-state officers who had collaborated with an in-state informant.202 The defendant acknowledged that the evidence was lawfully obtained under situs and federal law, but argued that it was unlawfully obtained under forum law and that forum law should govern the case.203 The court was unpersuaded. Without explaining why it choose the particular approach it did,204 the court declared that exclusion would not serve the “primary purpose of the exclusionary rule”—deterrence—because exclusion “would [not] have any discernible effect on police officers of other states who conduct investigations in accordance with the laws of their state and of the United States Constitution.”205 In this way, the court jumped straight to considering whether exclusion was appropriate without first determining which law to apply. Moreover, because the court did not identify the applicable law, it was unclear about which exclusionary rule it applied. It cited a U.S. Supreme Court case for the “primary purpose” behind exclusionary doctrine, even though the current case apparently turned on whether situs or forum law applied. Other cases are similarly misguided.206

Recent decisions have provided more detailed analyses with slight modifications, but their analyses are still incomplete. In State v. Torres,207 for example, the Hawaii Supreme Court held that evidence should be admitted if exclusion would not serve the purposes underlying Hawaii’s exclusionary rule. But it declared that in evaluating those purposes, courts should give “due consideration” to Hawaii’s constitution and case law.208 When considering judicial integrity, for instance, courts must give “substantial weight” to Hawaii law that would otherwise require exclusion of evidence obtained out of state.209 As in Echols, the court did not determine which law to apply. Instead, it immediately performed an exclusionary-rule analysis, this time explicitly based on its own exclusionary doctrine. Interestingly, the Torres court did consider whether the search was lawful according to forum law, but it used that analysis to inform its evaluation of the exclusionary rule’s purposes. It did not instruct lower courts to determine whether forum or situs law applies and then whether that state’s exclusionary doctrine favors exclusion.210

A smaller number of courts have not made this same mistake of resolving the entire issue by determining whether the forum state’s exclusionary doctrine favors exclusion. Instead, they have used the forum’s exclusionary-rule values to determine which state’s law to apply. They have then applied that state’s constitutional law and would presumably also apply its exclusionary doctrine if they found a constitutional violation. For example, a few courts have adopted the reasoning of the New Jersey Supreme Court in State v. Mollica.211 The Mollica court held that New Jersey’s constitutional safeguards apply only if the officer that performed a search acted as an agent of the New Jersey (forum) officers.212 According to the court, applying the New Jersey Constitution to situs officers when there was no agency relationship would not further New Jersey’s constitutional goals, which the court defined as the purposes underlying the state’s exclusionary rule.213 Then, after determining that New Jersey law did not apply, the court proceeded to hold that the evidence was admissible because the out-of-state officers had abided by their own jurisdiction’s constitutional law.214 In other words, unlike the Echols and Torres courts, the Mollica court did not simply consider whether exclusion was appropriate based on forum law. The court used the forum’s exclusionary-rule values to determine which state’s law to apply and then applied all of that state’s law.

The difference between Mollica on the one hand and Echols and Torres on the other is subtle but critical to understanding the flaws in the different incarnations of the exclusionary-rule approach. First, all three decisions are flawed because the courts neglected to answer the threshold question of whether two constitutions applied. As a result, each failed to determine whether there was even a conflict to be resolved.215

But the decisions in Echols and Torres have additional problems. Not only did those courts neglect the initial step, they also skipped a number of intermediate steps and went straight to analyzing whether the exclusionary rule requires exclusion. In Mollica and its progeny, courts wrongly assumed that more than one law reached the facts of a particular case, used the values underlying the forum’s exclusionary rule to determine whether forum law should control the case, determined that it should not, and then applied situs constitutional law. Note that the use of forum law to determine which law to apply is not particularly controversial. Under current doctrine, forum law dictates a court’s choice-of-law methodology.216 What is important is that despite the initial unjustified assumption that both laws reached the case and thus that the only question was which of the two should be given priority, the courts ultimately determined which of two laws should apply and used only that state’s law to completely resolve the dispute. To be sure, these courts only confronted cases where situs law was held to apply, and they never determined that there was a constitutional violation. As a result, they were never required to consider the potential applicability of any exclusionary rule, forum or situs. But their logic suggests that if they had determined that situs law was violated, they would have applied the situs state’s exclusionary rule, not the forum state’s exclusionary rule.

In contrast, the Echols and Torres courts used the values underlying the forum or some other exclusionary rule not to determine which law to apply, but to determine—regardless of the applicable law—whether to admit or exclude the evidence. In effect, they inappropriately divorced an exclusionary rule from its underlying constitution. Recall that a state’s exclusionary rule is tied to its Fourth Amendment analogue.217 That is why Hawaii can maintain an exclusionary rule with three purposes—deterrence of police misconduct, preserving judicial integrity, and the protection of individual privacy—and Connecticut can maintain an exclusionary rule with a single purpose—deterrence of police misconduct.218 In both Echols and Torres, the exclusionary rules designed to protect one constitution were potentially mismatched with constitutions that have separate exclusionary rules with distinct substantive values. The Echols court did not even attempt to identify the source of the exclusionary rule it applied. And while the Torres court did clearly state that it was applying Hawaii’s exclusionary rule, it never determined whether Hawaii law applied. As a result, Hawaii’s exclusionary rule may have been applied to a case that should have been governed by another state’s law.

Lastly, the exclusionary-rule approach has a final flaw: it is unpredictable. Like other balancing tests, the relevant factors can be difficult to apply, and the test permits judicial manipulation.219 The dissent in Torres, for example, criticized the Hawaii court’s “substantial weight” standard, which requires “due consideration” of the Hawaii Constitution, for being “simply too murky for trial courts to utilize and apply consistently.”220 This concern is of even greater importance in the exclusionary-rule context. As elaborated in Section IV.B.1, the deficit of clear guidance regarding what is and is not lawful compromises the goal of deterring police misconduct by sowing confusion and uncertainty.221

The above flaws are substantial. All courts applying a version of the exclusionary-rule approach neglect to first determine whether two laws apply and hence whether a conflict exists. Some further muddy the analysis by applying an exclusionary rule that does not necessarily match the constitution that governs the case. And either way, the approach threatens the deterrent value of the exclusionary rule by producing unpredictable results.

IV. the law-of-the-officer approach

By now it should be clear that no current approach provides a satisfactory answer to interstate search-and-seizure conflicts of law. Each suffers from substantial conceptual and practical flaws. To be sure, a perfect solution that is both theoretically sound and pragmatically unobjectionable is unlikely; few common-law doctrines are without defects. But the two-step approach that follows provides a more workable and coherent solution that is consistent with the purpose and intended reach of the relevant laws. Consistent with the two-step framework championed by Roosevelt, Section IV.A argues that courts should first determine whether two constitutions apply. Section IV.B then argues that if a conflict exists, courts should apply the law of the officer who performed the search because that rule best comports with the values underlying exclusionary doctrine—especially deterrence.

This particular two-step process is constitutionally feasible and methodologically distinct. Constitutionally, it is sound because all of the involved states have a legitimate contact with the search and hence application of either situs or forum law will be constitutionally permissible.222 Relatedly, the approach is sensitive to federalism concerns.223 It does not discriminate against out-of-state citizens or another state’s law because it is inherently reciprocal. Courts are instructed to apply forum law when a forum officer engages in a search extraterritorially, but, critically, courts must cede control over the resolution of cases involving searches performed by a situs officer to situs law.

A brief note on methodology is also in order. The following rationale is reminiscent of the exclusionary-rule approach currently taken by a majority of courts.224 That is for good reason. Those courts properly fashioned a rule that takes into account the purpose of exclusionary doctrine, an insight on which the law-of-the-officer approach builds. However, this proposal is theoretically and practically distinct from the exclusionary-rule approach in key ways. First, the law-of-the-officer approach requires courts to first consider whether two laws apply. As a result, courts can identify situations in which no conflict exists because only one law reaches the facts of the case. Second, the proposed conflict rule requires courts to determine which law to apply before determining whether exclusion is appropriate. Put differently, the law-of-the-officer approach results in the decision to apply either situs or forum law. After that choice is made, a court must still determine whether there was a violation of the applicable law and, if so, whether exclusion is appropriate. This contrasts with the approach of many current courts, which apply an untethered exclusionary rule to a case that could be governed by another state’s constitutional law.

There is also a salient practical difference between the approach proposed here and the exclusionary-rule approach. Consider cases where two laws apply. To resolve the conflicts in these cases, the courts that have employed the exclusionary-rule approach have thus far adhered to a balancing test that provides little predictability or consistency from case to case—even though predictability and consistency are especially critical to deterrence. By providing a bright-line rule, the law-of-the-officer approach maximizes the deterrent effect of the remedy.225

A. Step 1: State-Constitutional-Law Analysis

The first step in resolving an interstate search-and-seizure conflict should be to interpret the situs and forum state constitutions to determine which, if any, reach the facts of the search. As Roosevelt makes clear, this is an important first step in any conflict-of-laws analysis because courts must determine whether a conflict exists before applying a conflict rule.226 Consider a case in which a crime is committed in New Jersey and forum officers perform a related search in New York. The court must interpret the New Jersey Constitution to determine whether it binds state agents acting out of state, and it must interpret the New York Constitution to determine whether it binds all state actors, whether or not they are acting under the authority of New York law.

Few generalizations in this regard are possible. Different constitutions can have different jurisdictional interpretations depending on text, precedent, and state constitutional philosophy.227 Some might apply to every in-state defendant, no matter where a given investigation took place or the identity of the officer who performed the search. The Oregon Supreme Court determined that this was the correct interpretation of the Oregon Constitution due to, among other things, its unique text and precedent.228 Others, like the Kentucky Constitution, might apply only to state officers and therefore have no application to searches performed by out-of-state officers.229 And some might chart a middle course and apply to state officers as well as those acting under color of forum state law, as the New Jersey Constitution does.230

In the interstate search-and-seizure context, as in other contexts, four scenarios are possible: situs law alone could apply, forum law alone could apply, neither forum nor situs law could apply, or both forum and situs law could apply. If only situs law applies, then the court need only apply the situs constitution and that constitution’s exclusionary rule. Thus, the Helm court was able to avoid a conflict-of-laws analysis altogether because the Kentucky (forum) Constitution did not apply to out-of-state officers. Similarly, if only forum law applies, the court need only apply the forum constitution and its corresponding exclusionary rule. And if no state constitution applies, then the court should simply apply the Federal Constitution and its exclusionary rule. Only in the fourth scenario, where both situs and forum law applies, is there the need to perform a conflict-of-laws analysis. In other words, many cases that are currently understood to pose a conflict-of-laws question may be easily resolvable without resort to any conflict analysis because they do not fall within this fourth category of cases.231

B. Step 2: Application of the Law of the Officer

If both forum and situs law apply, an actual conflict exists. In those cases, courts must fashion some rule of decision that will predictably and justly identify a single law to resolve the conflict. As discussed above, the Federal Constitution provides little guidance.232 Instead, courts are left to create a rule using the traditional common-law tools of reason, history, and experience.233 Those sources support the law-of-the-officer approach. If a forum officer physically obtains the evidence, then forum law should apply, no matter the location of the search. Similarly, if a situs officer physically obtains the evidence, situs law should apply. Finally, if both forum and situs officers cooperate in a single search, the court should apply the law of the situs officer.

This Section describes how this rule is consistent with the values underlying the exclusionary rule, most notably deterrence. Cases involving officers from only one state are discussed first, followed by those involving cooperation between officers from more than one state.

1. The Values Underlying the Exclusionary Rule

Deterrence continues to be the primary determinant of the scope of exclusionary doctrine. The federal exclusionary rule is now justified and applied based entirely on whether the rule’s application will deter police misconduct.234 And a number of states have followed suit, emphasizing deterrence as the central purpose behind their exclusionary rules.235 Because of its prominence as a justification for most exclusionary rules, deterrence is given substantial weight in the analysis that follows.

A few states have also articulated additional exclusionary-rule purposes. While there is a range of nondeterrence policy rationales,236 the most common are “the imperative of judicial integrity” and maintaining the public’s trust in government by “assuring the people that the government will not profit from its lawless behavior.”237 Section IV.B.1 considers each of these rationales. Because both depend on whether a particular action was lawless, neither has any analytical weight at the conflict-of-laws stage. It does not make sense to argue that application of one or another law would sanction illegality because it is the legality of a particular search that is the fundamental issue in a conflict-of-laws case.

a. Deterrence

The law-of-the-officer approach maximizes the deterrent effect of state exclusionary rules by employing a bright-line rule that, through its predictability, furthers adherence to the law of the officer’s state. Of course, the degree to which the exclusion of evidence actually deters is contested.238 But whatever the empirical reality, deterrence is the predominant rationale in the case law and applying the law of the officer maximizes whatever deterrent effect exclusionary doctrine does have.

Although many still dispute the virtues of rules versus judicial standards, the consensus view is that the appropriate approach depends on the specific legal context.239 Rules and standards exist on a continuum of discretion, with standards affording decisionmakers the most flexibility.240 In broad strokes, rules require a given response to a defined set of facts, while standards, including multifactor balancing tests, give decisionmakers greater flexibility by allowing them to apply a generic background principle or policy to a factual situation.241 The two forms diverge along a number of metrics. Rules are costlier to formulate but less costly to apply. They afford regulated entities predictability and certainty so that they can order their affairs productively. And they minimize the potential for arbitrary choices by decisionmakers.242 In contrast, standards are less costly to develop but costlier to apply. They avoid rules’ characteristic over- or under-inclusiveness by allowing decisionmakers to calibrate their responses to the facts at issue. And they permit doctrines to more easily adapt to changing circumstances.243 These relative virtues and vices naturally lend themselves to different doctrines, including within the conflict-of-laws field.244

In the interstate search-and-seizure setting, a bright-line rule is preferable. The same benefits that generally attend rules are present in this context and support the law-of-the-officer approach. Unlike the exclusionary-rule approach and multifactor conflict-of-laws approaches, the law-of-the-officer proposal is easily administrable and minimizes the risk of arbitrary decisions by lower courts forced to apply vague principles. There is no need to engage in the complicated “significant weight test” set out in Torres, the “interest-weighing approach” set out in Briggs, or any other highly discretionary analysis based on ambiguous factors.245 Instead, the appropriate law is easily identified based on the identity of the officer who physically performed the search.

But there is an even more important reason why a rule—specifically one that favors the law of the officer who performed the search—is appropriate here. A clear directive would maximize the deterrent effect of the exclusionary rule in the officer’s home state, the only exclusionary rule that could plausibly impact his or her behavior. Exclusionary rules deter by punishing.246 Evidence unlawfully obtained is inadmissible and therefore cannot be used in a case against a defendant officers have pursued. This deterrent effect requires both that officers understand what actions are unlawful247 and that the “punishment” (i.e., exclusion) be consistently and predictably applied to cases involving officer misconduct.248 Both goals are served by a bright-line rule.

William Heffernan and Richard Lovely have argued that there is a cognitive component to deterrence: only officers who understand what the law prohibits can plausibly be deterred from performing prohibited acts.249 Moreover, there is evidence that simplification increases officers’ understanding of their legal obligations.250 Based on a 1991 study, Heffernan and Lovely concluded that the dramatic difference between officers’ understanding of Fourth and Fifth Amendment law can be attributed to differences in complexity.251 Almost a hundred percent of participating officers understood the bright-line rules set out in Miranda v. Arizona,252 while only about half of the officers understood the Fourth Amendment’s more complex doctrine. According to the authors, “[i]f equally simple rules governed search and seizure, the possibility of deterrence would be substantially enhanced.”253

To be sure, Heffernan and Lovely noted that limited simplification of Fourth Amendment doctrine is unlikely to be effective because of the doctrine’s inherent complexity.254 They explained that employing a bright-line rule for one type of intrusion does not produce the same results as Miranda because of the sheer number of rules and standards that govern all other intrusions. Individual rules do not always attract officers’ attention and are difficult to understand because mastery of any one rule requires an understanding of when that one rule applies and when it does not. In contrast, the Miranda rules deal comprehensively with custodial interrogations. This makes them easier to master and gives officers the assurance that if they know the few Miranda rules, they will be able to lawfully navigate most situations involving custodial interrogations.255 But it stands to reason that a simple conflict-of-laws rule will clarify the legal requirements for at least some frequently encountered Fourth Amendment situations. Think of the issue in Burge: whether a spouse could consent to the search of a defendant’s home.256 The question likely comes up frequently, and a rule that a spouse can or cannot consent to a search is easily understood. Consistently enforcing that and similar rules will at least not disturb officers’ understanding of the law they do know by adding the potential application of another state’s law and thus an additional layer of complexity.257

In addition, even assuming that officers fully understand the law, the deterrent effect of exclusion also depends on the consistency of the “punishment.” In his analysis of the deterrent effect of the federal exclusionary rule, Christopher Slobogin summarizes a number of punishment-related insights from the field of behavioral economics.258 Two are particularly relevant here: punishment should follow misconduct as frequently as possible and incidental rewards from the misconduct should be kept to a minimum.259

For better or worse, exclusionary doctrine is already inconsistently applied in ways that impact its punishment-related effects. Sometimes police do not make an arrest, so there is no opportunity for illegally obtained evidence to be excluded. Other times an arrest is made but the search-and-seizure issue is never litigated because the defendant accepts a plea deal or the police do not pursue an investigation.260 It would be a mistake to add to this inconsistency by sometimes admitting evidence unlawfully obtained under the law of the officer’s home state or excluding evidence lawfully obtained under the law of the officer’s state. State courts have enough difficulty communicating clear signals about appropriate behavior without the static of inconsistent and stray pronouncements based on another state’s law.

This consideration is not only important to achieve the specific deterrence of individual officers that have already engaged in misconduct, but also the general deterrence of officers who could commit a future search-and-seizure violation. General deterrence is achieved when there is a “perception of real punishment.”261 Applying a law other than that of the officer’s home state—particularly when that law would allow for the admission of otherwise excludable evidence—will only make the threat of exclusion seem more unpredictable and remote to other officers. As a result, the incentives to invest in learning to abide by forum law will be compromised.262 Put simply, consistency and predictability—the hallmarks of rules-based doctrines—take on newfound importance when deterrence is the objective. Rules, rather than standards, are best able to facilitate the necessary intergovernmental communication.263

These prerequisites of deterrence are also why a bright-line rule that favors the law of the officer who performed the search is preferable to a bright-line territorial rule. As discussed above,264 territorial rules are blind to the content of the relevant laws. In this case, a territorial rule will sacrifice the deterrence goal of exclusionary doctrine by setting an unrealistic goal. For a territorial rule to have any deterrent effect, police officers must be capable of internalizing both their own state’s law—which governs the vast majority of their work265—and the search-and-seizure law of any other state involved in the search. This is unrealistic. Instead of achieving this goal, requiring officers to know two different search-and-seizure doctrines will add detrimental complexity and compromise the consistency and predictability of the punishment of exclusion.

Moreover, even if it were possible for police officers to fully comprehend and correctly apply the laws of multiple states, there will always be some set of cases in which it would be impossible for an officer to know which law to apply. Consider again Orlosky, in which situs officers obtained evidence of a forum-state crime in the course of investigating an entirely distinct situs-state crime. The situs officers could not have known that some other law would apply before they began the search.

In the digital age, it will only be harder for officers to know which state’s law will apply. Recall the facts of Evers.266 Based on interactions in an online chat room, a situs officer obtained a search warrant from a situs court that required AOL to turn over the names and billing addresses of various users, including the defendant. Of course, the officer could not have known beforehand that the defendant resided in New Jersey and therefore that New Jersey law might apply. Remote computer searches pose similar problems.267 Emerging technologies do not just make interstate searches more prevalent, they make ex ante determinations regarding the relevant law increasingly difficult or impossible. In those situations, it does not serve deterrence to hold officers accountable to a law they could not have anticipated. The consistency and simplicity of the law-of-the-officer approach, on the other hand, provides clear guidance to officers.

In addition, sacrificing probative evidence in situations like these could risk delegitimizing the exclusionary remedy and further impair compliance with search-and-seizure law. Drawing on Tom Tyler’s research, Slobogin argues that if officers view the exclusionary rule as illegitimate, they will be more likely to ignore the judiciary’s dictates.268 Some research suggests that officers are already skeptical of exclusionary doctrine.269 Excluding evidence because officers failed to follow a law that they could not possibly have anticipated will likely accelerate the spread of more negative perceptions.270

In recent years, the Supreme Court has also been increasingly concerned about punishing officers who are not truly culpable, and its logic corroborates the reasoning here. In developing the so-called “good-faith” exception to the federal exclusionary rule, the Court has been skeptical that punishing nonculpable conduct is consistent with the value of deterrence.271 One of the most recent articulations of the exception, which permits the admission of evidence seized in “good faith” by law enforcement officers, came in Davis v. United States.272 There, the Court allowed the admission of evidence obtained during a search conducted in reasonable reliance on appellate precedent that was subsequently overruled. The Supreme Court maintained that exclusion “should not be applied to deter objectively reasonable law enforcement activity.”273 Instead, exclusion is only appropriate when a police officer’s actions “are deliberate enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by the justice system.’”274 The officers in Davis did not act “deliberately, recklessly, or with gross negligence”; nor did the case involve any “recurring or systemic negligence.”275 Because an officer “who conducts a search in reliance on binding appellate precedent does no more than ‘ac[t] as a reasonable officer would and should act’ . . . , [t]he deterrent effect of exclusion in such a case can only be to discourage the officer from ‘do[ing] his duty.’”276 Exclusion was therefore practically and normatively inappropriate.

Similar reasoning supports the law-of-the-officer approach. An officer who is unaware that he or she may uncover evidence related to a crime in another state (as in Orlosky and Evers) is not culpable. Applying the exclusionary rule in such situations would do little more than “deter . . . conscientious police work.”277 The same is true, though to a lesser degree, of forum officers who pursue an investigation in another state and of situs officers who perform a search that is ultimately relevant to a criminal prosecution in another state. “Responsible law enforcement officers will take care to learn ‘what is required of them’ under Fourth Amendment precedent,”278 as well as precedent interpreting their state’s Fourth Amendment analogue. When that “binding . . . precedent specifically authorizes a particular police practice, well-trained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities.”279 Applying a different state’s law will often punish “nonculpable, innocent police conduct” when officers reflexively follow the law that governs the vast majority of their professional life.280 Indeed, it is hard to argue that officers act with gross negligence when they fully comply with their own state’s constitutional law.

In sum, the law-of-the-officer approach maximizes deterrence, the primary rationale animating state exclusionary rules. The approach encourages adherence to the law of the officer’s state by ensuring that, where possible, officers receive consistent and simple behavioral signals that facilitate investment in learning and compliance with the law. Equally important, the approach does not unrealistically require officers to understand the intricacies of multiple states’ search-and-seizure law.281 A rule or standard that purports to hold officers accountable to another state’s law would only risk sacrificing probative evidence in exchange for little or no behavioral benefits. In fact, such a rule or standard might even further delegitimize the exclusionary remedy. And finally, any other rule or standard would punish responsible police practice and hence run counter to the Supreme Court’s culpability-based analysis in Davis.

b. Judicial Integrity and Public Trust

Though deterrence favors the law-of-the-officer approach, it is not necessarily the only principle that guides the application of state exclusionary rules. Some state courts have articulated additional values, most commonly judicial integrity and maintaining the public’s trust in government.282 Neither provides any reason to reject the law-of-the-officer approach.

The two rationales derive from language that the Supreme Court has used at one time or another to characterize the federal exclusionary rule. The idea of judicial integrity, for example, is rooted in the Weeks decision, in which the Court declared that “unlawful seizures . . . should find no sanction in the judgments of the courts which are charged at all times with the support of the Constitution.”283 According to this rationale, courts should refuse to admit unlawfully obtained evidence lest they become accomplices in a constitutional violation.284 In the words of Justice Holmes, it is “a less evil that some criminals should escape than that the Government should play an ignoble part.”285 The Hawaii Supreme Court has embraced the rationale and explained that “[t]he ‘judicial integrity’ purpose of the exclusionary rule is essentially that the courts should not place their imprimatur on evidence that was illegally obtained by allowing it to be admitted into evidence in a criminal prosecution.”286

Advocates of the public-trust rationale, on the other hand, argue that to sanction “lawlessness by officers of the law” by admitting unlawfully obtained evidence would “have [a] tragic effect upon public respect for our judiciary.”287 In other words, application of the exclusionary rule “assur[es] the people—all potential victims of unlawful government conduct—that the government w[ill] not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government.”288 Embracing this rationale, the Vermont Supreme Court has declared that its exclusionary rule serves, among other goals, to “promote the public’s trust in the judicial system.”289

Both the judicial-integrity and public-trust rationales, however, turn on the legality of a particular search—a fact determined by reference to the law that governs the case. Only if a search was illegal can the judiciary be said to have placed its imprimatur on illegality. Similarly, the government must have profited from some lawless behavior for the public’s trust to be compromised. But at the conflict-of-laws stage, the court must determine what law to apply and thus whether there was an unlawful search in the first place. Only after a governing law is chosen can a particular action be deemed lawful or unlawful. Put differently, if a court were to adopt the law of a state that does not recognize a particular search as unconstitutional, it cannot be said to have condoned illegality because the alleged misconduct, according to that state’s law, was never illegal.

Understanding the difference at the conflict-of-laws stage between the analytical weight of these rationales and the analytical weight of the deterrence rationale is important. Section IV.B.1 demonstrates that officers can only realistically be deterred from violating their own state’s law, and the possibility of such deterrence is maximized if courts follow the law-of-the-officer approach. But while the application of only one law will allow exclusionary doctrine to have a deterrent effect, the judicial-integrity and public-trust rationales are meaningless at the conflict-of-laws stage. Applying one law over the other will not promote judicial integrity because judicial integrity can only be compromised if a search is held to be unlawful under one of the relevant states’ search-and-seizure laws. That is why the deterrence value alone provides guidance when courts are deciding which law to apply.

2. Conflicts of Law Involving Multiple States’ Officers

The above analysis resolves cases that involve cooperation among various states’ law-enforcement officers as long as only a single state’s officers perform a given search. A variation is required for cases in which more than one state’s officers participate in the search.290 In those cases, a bright-line rule favoring the situs officer is most appropriate.

For the reasons discussed above, it is preferable to impose a bright-line rule based on the identity of an involved officer in order to cabin judicial discretion and structure police behavior.291 And the law of the situs officer, rather than the forum officer, best comports with the values underlying the exclusionary rule. First, the participation of situs officers should alert forum officers to the possibility that a different law could apply, and should help ensure that the forum officers can reasonably be expected to know the applicable law. After all, there will be at least one officer on the scene who can reasonably be expected to understand situs law and convey that law to forum officers.292 Concerns about requiring the officers to know fifty state-law regimes will therefore be minimized. Second, the rule preserves the deterrent value of the exclusionary rule, at least for the situs officers. Those officers will still be held fully accountable to their own state’s law.

That is not to say that this rule is without costs. There may be times, for instance, when forum officers have no ability to obtain information from their situs colleagues before performing a given search. The situs state’s exclusionary rule would nevertheless apply and might exclude evidence that forum officers could not have known would be kept out. Unfortunately, this is an inevitable consequence of a conflict-of-laws case involving multiple states’ officers. Some set of officers will have to be held accountable to a different state’s law. The alternative—holding each individual officer accountable to only her own state’s law—would not be administrable. Given the collaborative and often hectic nature of some searches and seizures, it would be difficult to divide a continuous search into distinct acts by individual officers. Moreover, simplicity and ease of application remain important goals for the conflict-of-laws field.293

It is also true that the rule could permit some bad faith actors to game the system. This concern appears to be particularly salient for a few courts and commentators that have previously considered interstate search-and-seizure conflicts of law. Corr, for example, created an exception to his situs-law rule for situations in which forum officers intentionally wait for a defendant to leave the state in order to take advantage of another state’s law.294 And in other contexts, courts have suggested that they too are sensitive to the possibility of what Corr refers to as “trickery by forum police.”295

The law-of-the-officer approach ameliorates some of these concerns since forum officers could not simply thwart their state’s constitutional demands by performing a particular search out of state. However, if an officer thought enough about the situation, she could engage in some gamesmanship. An officer might, for instance, know that a defendant was planning to visit an out-of-state acquaintance and seek to search the defendant’s automobile under the more permissive search-and-seizure law of the acquaintance’s state. In that case, the officer could wait to perform the search and ask situs officers to perform it instead. The law-of-the-officer approach would admittedly permit this conduct. But bad-faith cases such as these are likely rare.296 And allowing this conduct in such a narrow sliver of cases is an acceptable price to pay for the predictability and transparency of the law-of-the-officer approach. Moreover, it should be remembered that in all situations, a defendant at least benefits from his or her federal constitutional rights. No matter the police gamesmanship, he or she is never left without any search-and-seizure protection.

Conclusion

Current approaches to resolving interstate search-and-seizure conflicts of law have proven inadequate. From resort to the substance-procedure distinction to the exclusionary-rule approach, each is conceptually flawed in its own way. This Note proposes a novel law-of-the-officer approach that has firmer theoretical and practical footing.

Under the law-of-the-officer approach, courts should engage in a two-step analysis. The first step requires interpreting the two potentially applicable constitutional provisions. Only if both apply should the court proceed to the next step and apply the law of the officer who performed the search. This is a simple analysis when only one state’s officers are involved: forum law will govern forum officers and situs law will govern situs officers. The analysis becomes slightly more complex when more than one officer is involved in the search. In those cases, the court should apply the law of the situs officer. This rules-based approach acknowledges that police officers are unlikely to know the intricacies of fifty state-law regimes and refuses to sacrifice probative evidence when this reality clashes with some theoretic ideal. Moreover, it serves the most common exclusionary-rule value—deterrence—and is consistent with other common justifications for the rule.

To be sure, some courts may be unpersuaded. Perhaps they will believe that the law-of-the-officer approach pays insufficient attention to issues such as individual privacy or other state-specific concerns. This Note argues only that this analysis will appropriately resolve search-and-seizure conflicts of law in most jurisdictions. At the very least, it should be clear that the current approaches to this problem are inadequate; greater attention to devising a conceptually sound framework is needed. The law-of-the-officer approach provides a theoretically satisfying and practically feasible solution.