Would Tennessee's 2011 Exclusionary Rule Reform Act (HB 401), which would let courts admit search-warrant evidence despite statutory or Rule 41 violations as long as the error was a 'good faith mistake or technical violation' and no constitutional rights were violated, survive constitutional review?

Plain-English summary

Representative Camper asked whether the proposed Exclusionary Rule Reform Act (HB 401) would survive constitutional review. The bill would create a new Tenn. Code Ann. § 40-6-108 to make clear that evidence seized under a search warrant is not suppressed for a statutory or rule violation (i.e., a violation of Tenn. Code Ann. §§ 40-6-101 et seq. or of Tenn. R. Crim. P. 41) if (1) the evidence is otherwise admissible, (2) the seizure did not violate the U.S. or Tennessee constitutions, and (3) the violation was a "good faith mistake or technical violation" defined to mean unintentional clerical errors, execution by a different on-scene officer with authority over the premises, or reasonable reliance on a statute or precedent later overturned.

The AG said yes, the bill is constitutional. Two distinct constitutional concerns might have torpedoed an exclusionary-rule reform bill, and the bill is drafted to avoid both:

1. Federal/state constitutional exclusionary rule. The bill expressly does not authorize the admission of evidence obtained in violation of the Fourth Amendment or Tenn. Const. art. I, § 7. So unlike the proposal analyzed in Op. Tenn. Att'y Gen. 09-88 (which would have built a statutory good-faith exception into the constitutional exclusionary rule), this bill leaves the constitutional rule untouched. A search that violates the Fourth Amendment or art. I, § 7 still requires suppression.
2. Separation of powers. The bill would override Tenn. R. Crim. P. 41(g)'s suppression remedy for non-constitutional Rule 41 violations. The AG concluded that does not violate separation of powers because State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001) confirms the General Assembly's "broad power to establish rules of evidence in furtherance of its ability to enact substantive law." The Mallard limit is on legislation that strikes at the "very heart" of the court's exercise of judicial power, such as the power to hear facts and decide issues. A non-constitutional rule of admissibility, impartial and uniform, does not cross that line.

Practically, the bill would have meant that minor warrant paperwork errors, an officer who was present but not the named affiant executing the warrant, or reliance on a statute later struck down would no longer trigger suppression at the rule level. But genuinely unreasonable searches would still be excluded under the Fourth Amendment and art. I, § 7.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What is Tenn. R. Crim. P. 41(g)?
A Tennessee Rule of Criminal Procedure that required suppression of evidence seized under a warrant if the warrant or its execution violated Rule 41's procedural requirements, regardless of whether the underlying search violated the Fourth Amendment or art. I, § 7. Rule 41(g) created an exclusionary remedy for technical violations that federal courts would not have suppressed.

Why was that potentially a problem for a "reform" bill?
Two reasons. First, if a bill simply waived suppression for state constitutional violations, it would conflict with State v. Carter and earlier Tennessee Supreme Court decisions reading art. I, § 7 to require suppression. The 2009 AG Opinion 09-88 flagged that risk. Second, even if the bill avoided the constitutional issue, the Supreme Court had adopted Rule 41 under its rule-making authority, so a statute that overrode the rule's suppression remedy raised a separation-of-powers question.

How did HB 401 avoid the constitutional problem?
By an explicit textual carve-out: the bill admits evidence only if the seizure "is not in violation of the constitutions of the United States or the State of Tennessee." A search that violates the Fourth Amendment or art. I, § 7 still gets the evidence excluded. The bill targets only sub-constitutional statutory and rule violations.

Why doesn't overriding Rule 41(g) violate separation of powers?
Because under State v. Mallard, the legislature has broad power to set rules of evidence and rules of admissibility. The judicial power that Mallard protects is the inherent power to find facts and decide legal issues, not the power to define when evidence is admissible. A statute that uniformly says "this kind of warrant defect does not trigger suppression" is a rule of admissibility, and the legislature can enact it. Earlier cases like Rust v. Griggs and State v. Yardley recognized the legislature's "practically unrestrained" authority over rules of evidence, with the limit being that the rule must be impartial and uniform and must not preclude a party from exhibiting their rights.

Does this make Tennessee's exclusionary rule weaker than the federal version?
On constitutional searches, no, the bill leaves the constitutional rule intact. On Rule 41 violations, yes, the bill brings Tennessee closer to the federal practice, where minor warrant errors do not automatically suppress evidence so long as the search itself is reasonable.

Background and statutory framework

The exclusionary rule serves two distinct functions in Tennessee. The constitutional exclusionary rule, derived from the Fourth Amendment and Tenn. Const. art. I, § 7, suppresses evidence obtained from unreasonable searches and seizures. The Rule 41(g) rule of criminal procedure suppressed evidence obtained from warrants that did not comply with Rule 41's procedural details, even where the underlying search was constitutionally reasonable.

The two doctrines have a complicated history in Tennessee. State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000), suggested that Tennessee's exclusionary rule under art. I, § 7 might not admit of the federal Leon good-faith exception. State v. Huskey, 177 S.W.3d 868, 890 (Tenn. Crim. App. 2005), is part of the same lineage. Op. Tenn. Att'y Gen. 09-88 had flagged that a bill that simply added a Leon-style good-faith exception to the constitutional rule might be vulnerable under Carter. HB 401 was drafted to sidestep that vulnerability.

The separation-of-powers question is a familiar one in Tennessee: when can a statute override a procedural rule the Supreme Court has adopted? Mallard set the framework. The legislature has broad authority over rules of evidence and admissibility; the courts have inherent authority to hear facts and decide cases. A rule that touches one but not the other is constitutional.

Citations

• Tenn. Code Ann. §§ 40-6-101, et seq. (search warrant statutes)
• Tenn. Code Ann. § 40-6-108 (proposed) (statutory good-faith for rule violations)
• Tenn. R. Crim. P. 41(g) (rule-based suppression remedy)
• U.S. Const. amend. IV (federal Search and Seizure Clause)
• Tenn. Const. art. I, § 7 (Tennessee Search and Seizure Clause)
• State v. Carter, 16 S.W.3d 762 (Tenn. 2000)
• State v. Huskey, 177 S.W.3d 868 (Tenn. Crim. App. 2005)
• State v. Mallard, 40 S.W.3d 473 (Tenn. 2001) (legislative power over rules of evidence)
• Rust v. Griggs, 113 S.W.2d 733 (Tenn. 1938)
• State v. Yardley, 32 S.W. 481 (Tenn. 1895)
• Op. Tenn. Att'y Gen. 09-88 (May 18, 2009)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-032.pdf

Original opinion text

April 11, 2011
Opinion No. 11-32
Constitutionality of "Exclusionary Rule Reform Act"

QUESTION

If enacted, the "Exclusionary Rule Reform Act" (HB401), as amended by the House Judiciary Committee, would guarantee that evidence seized after the execution of a search warrant issued pursuant to Tenn. Code Ann. §§ 40-6-101, et seq., or Tenn. R. Crim. P. 41 would not be subject to suppression on account of "a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate," provided that the evidence is otherwise admissible in a criminal proceeding and not obtained in violation of the federal and state constitutions. Is this bill constitutional?

OPINION

Yes. The bill, by its terms, does not purport to authorize the admission of evidence that is otherwise inadmissible because it was unreasonably seized in violation of the United States Constitution or the Tennessee Constitution. Furthermore, the bill does not violate constitutional separation-of-powers provisions.

ANALYSIS

Both Tenn. Code Ann. §§ 40-6-101, et seq., and Tenn. R. Crim. P. 41 delineate the requirements under state law governing the application for and the issuance and execution of a search warrant. This bill would allow the admission of evidence seized following execution of a search warrant if the application for, the issuance of, or the execution of the warrant does not comply with Tenn. Code Ann. §§ 40-6-101, et seq., or Tenn. R. Crim. P. 41, so long as (1) the evidence is otherwise admissible in a criminal proceeding, (2) there was no violation of the federal or state constitution, and (3) the error "was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate." The bill, as amended, would enact a new statutory provision, Tenn. Code Ann. § 40-6-108, as follows:

(a) Notwithstanding any provision of law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to title 40, chapter 6, part 1 or pursuant to Tenn. R. Crim. Pro. Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the constitutions of the United States or the State of Tennessee shall not be suppressed as a result of any violation of title 40, chapter 6, part 1 or any violation of Tenn. R. Crim. Pro. Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c).

(b) This section does not limit or prohibit the enforcement of any appropriate civil remedy in actions pursuant to other provisions of law against any individual or government entity found to have conducted an unreasonable search or seizure; provided, however, unless otherwise provided by federal law or the Tennessee Constitution, if any evidence is seized as a result of a good faith mistake or technical violation, as defined in subsection (c), the individual government entity shall not be civilly liable.

(c) As used in this section, unless the context otherwise requires, "good faith mistake or technical violation" means:

(1) An unintentional clerical error or omission made by a law enforcement officer, court official or issuing magistrate in the form, preparation, issuance, filing and handling of copies, or return and inventory of a search warrant;

(2) When the officer to whom the warrant is delivered for execution is not present during the execution but an officer with law enforcement authority over the premises does otherwise execute the search warrant;

(3) A reasonable reliance on a statute that is subsequently ruled unconstitutional; or controlling court precedent that is overruled after the issuance of a search warrant, unless the court overruling the precedent orders the new precedent to be applied retroactively.

By its very terms, the bill only authorizes the admission of seized evidence "that is otherwise admissible in a criminal proceeding and not in violation of the constitutions of the United States or the State of Tennessee." Consequently, the bill would not authorize the admission of evidence that is otherwise inadmissible because it was unreasonably seized in violation of the Fourth Amendment to the United States Constitution and/or Article I, § 7, of the Tennessee Constitution.

In Op. Tenn. Att'y Gen. 09-88 (May 18, 2009), this Office opined that a bill to create a statutory good-faith exception to the exclusionary rule that enforces the state and federal constitutions' prohibitions against unreasonable searches and seizures would not offend the Fourth Amendment but could be vulnerable to attack under Article I, § 7. See also State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000), and State v. Huskey, 177 S.W.3d 868, 890 (Tenn. Crim. App. 2005). The present bill does not purport to create a statutory good-faith exception to the exclusionary rule that enforces the Fourth Amendment or Article I, § 7; rather, it would allow for the admission of evidence otherwise inadmissible on account of a violation of Tenn. Code Ann. §§ 40-6-101, et seq., or Tenn. R. Crim. P. 41. In a given case, an error that would qualify as a "good faith mistake or technical violation" under this bill might nevertheless render the search unreasonable under the Fourth Amendment or Article I, § 7. In that event, the exclusionary rule that enforces these constitutional provisions would require the suppression of the evidence.

Finally, although this bill would supersede Tenn. R. Crim. P. 41(g)'s suppression-of-evidence requirement for any violation of Rule 41 "if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c)," the bill does not violate separation-of-powers principles. The General Assembly has "broad power . . . to establish rules of evidence in furtherance of its ability to enact substantive law." State v. Mallard, 40 S.W.3d 473, 481 (Tenn. 2001); see also Rust v. Griggs, 172 Tenn. 565, 113 S.W.2d 733, 736 (1938) (observing that "'the power of the Legislature to prescribe rules of evidence, and to declare what shall be evidence, is practically unrestrained, and legislation, to those ends, will be upheld so long as it is impartial and uniform, and does not preclude a party from exhibiting his rights.'" (quoting State v. Yardley, 95 Tenn. 546, 565, 32 S.W. 481 (1895) (internal quotation marks omitted)). Nevertheless, the General Assembly's power to enact rules is not unlimited; it "can have no constitutional authority to enact rules, either of evidence or otherwise, that strike at the very heart of the court's exercise of judicial power[.]" Mallard, 40 S.W.3d at 483 (citations omitted). "Among the inherent judicial powers are the powers to hear facts, to decide the issues of fact made by the pleadings, and to decide the questions of law involved." Id. This bill does not infringe upon these inherent judicial powers, but merely provides an impartial and uniform rule regulating the admissibility of evidence.

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

JOHN H. BLEDSOE
Senior Counsel

Requested by:
The Honorable Karen D. Camper
State Representative, 87th District
24 Legislative Plaza
Nashville, Tennessee 37243-0192