Herring v. United States

• Brief for Petitioner Bennie Dean Herring
• Brief for Respondent United States of America
• Reply Brief for Petitioner Bennie Dean Herring

Amicus briefs

• Brief for National Association of Criminal Defense Lawyers in Support of Petitioner
• Brief for American Civil Liberties Union and The ACLU of Alabama in Support of Petitioner
• Brief for the Electronic Privacy Information Center (EPIC), Privacy and Civil Rights Organizations, and Legal Scholars and Techinical Experts in Support of Petitioner

Oral Argument: Transcript

Decision: Affirmed in an opinion by Chief Justice Roberts

[edit] Pre-Argument Articles

[edit] Argument Preview

In Arizona v. Evans (1995), the Supreme Court held that the exclusionary rule did not apply to evidence seized incident to an arrest that was unlawful under the Fourth Amendment because it was based on erroneous information negligently provided by a court employee. The question now before the Court is whether the exclusionary rule also applies when the erroneous information is negligently provided by law enforcement personnel.

[edit] Background

This case stems from petitioner Bennie Dean Herring’s arrest in Coffee County, Alabama. In July 2004, Herring drove to the Coffee County Sheriff’s Department to retrieve some personal possessions from an impounded vehicle. When Coffee County Investigator Mark Anderson learned that Herring was at the impound lot, he asked Sandy Pope, the Department’s warrant clerk, to check the county database to see whether any warrants for Herring’s arrest were outstanding. Pope informed him that she saw no active warrants for Herring in Coffee County. Anderson then asked her to find out whether there were any outstanding warrants for Herring in neighboring Dale County. Pope telephoned Sharon Morgan, the warrant clerk for the Dale County Sheriff’s Department, who checked her database and told Pope that there was an active warrant in Dale County charging Herring with failure to appear on a felony charge. Pope relayed that information to Anderson and asked Morgan to fax over a copy of the warrant.

Anderson and a Coffee County deputy sheriff followed Herring as he drove away from the Sheriff’s Department, pulled him over, and arrested him pursuant to the Dale County warrant. Searches of Herring and his truck incident to the arrest turned up methamphetamine in Herring’s pocket and a pistol under the front seat of the truck. At the same time, after Morgan failed to locate a copy of the actual warrant for Herring’s arrest, she called the Dale County Circuit Court Clerk’s Office and was informed that the warrant had been recalled. Although Morgan immediately relayed this information to Pope, who in turn transmitted it to the two Coffee County officers, the arrests and searches had already been carried out. Approximately ten to fifteen minutes had elapsed between the time that Morgan had told Pope that an active warrant existed and the time that Morgan called her back to correct that statement.

Herring was indicted on charges of possessing methamphetamine and being a felon in possession of a firearm. He moved to suppress any evidence of the drugs and firearm, arguing that because the arrest warrant on which the officers relied had been rescinded, the searches did not take place incident to a lawful arrest. The district court denied Herring’s motion. Instead, it adopted the magistrate judge’s conclusion that application of the exclusionary rule would not deter future mistakes, as the arresting officers had acted on a good faith belief that the warrant was still outstanding and had found the drugs and firearm before learning the warrant had been recalled. The district court also made the additional finding that the erroneous warrant information appeared to be the fault of Dale County Sheriff’s Department personnel, rather than anyone in Coffee County. A jury convicted Herring of both counts, and he was sentenced to twenty-seven months’ imprisonment.

On appeal, Herring’s sole contention was that the district court erred in denying his motion to suppress. The Eleventh Circuit affirmed. The court explained that although the searches violated Herring’s Fourth Amendment rights, whether the evidence obtained through those searches must be suppressed was a separate question. Turning to its exclusionary rule analysis, the court of appeals noted that the Supreme Court in Arizona v. Evans had expressly declined to decide whether the exclusionary rule should apply when police personnel, rather than court employees, are responsible for a clerical error resulting in an unlawful search or seizure.

Instead, the court of appeals relied on the Court’s decision in United States v. Leon, which it interpreted to require the satisfaction of three conditions before the exclusionary rule will be applied: (1) “there must be misconduct by the police or by adjuncts to the law enforcement team”; (2) application of the exclusionary rule must result in “appreciable deterrence” of that misconduct; and (3) “the benefits of the rule’s application must not outweigh its costs.” In the court’s view, the first condition was met because the failure by the Dale County Sherriff’s Office to record the recall of the arrest warrant was “at the very least negligent.” However, the court found that the second condition was not met because application of the exclusionary rule would not deter bad record-keeping to any appreciable extent. The court reasoned that although deterrents work best when the targeted conduct results from conscious decision making, the conduct at issue in this case was merely a failure to act; that the exclusionary sanction would not be levied against the department which was guilty of negligent record-keeping, but instead against a different department in another county that was entirely innocent of any wrongdoing; and that there are already abundant incentives for keeping records current, including “the inherent value of accurate record-keeping to effective police investigation,” “the possibility of reprimand or other job discipline for carelessness,” and “the possibility of civil liability if the failure to keep records updated results in illegal arrests or other injury.” Nor, in the court’s view, was the third condition met: “any minimal deterrence that might result . . . would not outweigh the heavy cost of excluding otherwise admissible and highly probative evidence.” Finally, the court emphasized that the good faith exception does not shelter evidence obtained in an unconstitutional arrest or search that was based on objectively unreliable information; thus, if faulty record-keeping were to become endemic in Dale County, officers in Coffee County would have a difficult time establishing that their reliance on records from Dale County was objectively reasonable.

[edit] Petition for Certiorari

Herring articulated four justifications for granting certiorari. First, the federal courts of appeals and state courts of last resort have been deeply divided over the question of whether the exclusionary rule applies when clerical errors by law enforcement agents, rather than court employees, lead to illegal arrests and searches. Moreover, because this conflict is deeply entrenched and turns on how to interpret the Fourth Amendment and Supreme Court precedent, the Supreme Court is the only institution that can resolve the dispute, and the need to do so is particularly pressing because a state court of last resort within the Eleventh Circuit had reached a decision directly opposed to that of the Eleventh Circuit.

Second, the question of how to apply the Fourth Amendment’s exclusionary rule in cases involving law enforcement’s clerical negligence is a recurring and important one in the criminal justice system. As policing becomes more reliant on computerized systems, the number of illegal arrests and searches based on negligent record-keeping is poised to multiply, and prosecutors, defense lawyers, and courts need to know whether this illegally obtained evidence can be used.

Third, this case presents a “perfect opportunity” for the Court to decide whether the exclusionary rule applies to evidence seized in an unconstitutional search caused by a law enforcement agent’s clerical negligence, as the arrest and search in this case derived from precisely the same sort of error addressed in Arizona v. Evans, with the crucial distinction that here a law enforcement agent, rather than court personnel, was responsible for the error. Herring also argued that the case is an ideal vehicle for resolving the question presented, as the parties agree on the central facts.

Fourth, the Eleventh Circuit’s decision cannot be reconciled with Supreme Court precedent, arguing that it is “appropriate and necessary to enforce the exclusionary remedy” when employees of any law enforcement agency working in collaboration with arresting officers negligently make clerical errors that trigger groundless arrests and searches. Indeed, Herring argues, the Supreme Court “has never wavered from the judgment that imposing the exclusionary rule in criminal trials is necessary when law enforcement’s mistakes or malfeasance allow it to illegally obtain evidence that it otherwise would not have acquired.” Herring also disputed each aspect of the Eleventh Circuit’s reasoning: in his view, negligent omissions can be deterred as effectively as conscious decisions; unless the exclusionary rule applies, law enforcement departments have no incentive to expunge recalled or otherwise invalid warrants from computer databases; there is no reason to believe that law enforcement agents will be disciplined for negligent record-keeping; and it will be virtually impossible for illegal arrest victims to obtain redress.

Opposing certiorari, the government advanced three basic arguments. It first asserted that, contrary to Herring’s argument, the Eleventh Circuit did not extend Evans to all negligent errors by law enforcement; rather, the court narrowly held that application of the exclusionary rule was inappropriate in the unique circumstances of Herring’s case. The government argued that a categorical approach with respect to police clerical errors is not mandated by Supreme Court precedent and that the exclusionary rule should only be applied when its remedial objectives are “most efficaciously served.” In Herring’s case, the following factors weighed in favor of non-application of the exclusionary rule: the error was negligent rather than deliberate, the error was made by a different law enforcement agency than the one that made the arrest, the record-keeping system at issue was generally reliable, and the evidence at issue was highly probative and intrinsically reliable. The government also argued that there is already an incentive for police departments to maintain accurate records because an arrest pursuant to an invalid warrant will often be a fruitless waste of police resources, that there is no reason to believe that police department employees are not subject to discipline for shoddy record-keeping, and that the threat of civil litigation may provide an effective deterrent to police errors that cause unlawful arrests.

Second, the government disputed Herring’s contention that the conflict among the courts regarding the question presented is “deeply entrenched.” Since Evans was decided, the government explained, no other federal court of appeals had issued a published decision addressing the precise question presented in this case – viz., whether the exclusionary rule applies when a police officer makes an arrest based on objectively reasonable reliance on incorrect information from a different law enforcement agency; moreover, the only unpublished decision to have considered the issue reached the same conclusion as the Eleventh Circuit. In any event, the government continued, the Eleventh Circuit’s decision did not directly conflict with any of the state supreme court decisions cited by Herring, as those cases were factually distinguishable.

Third, the government sought to undermine Herring’s remaining arguments in favor of certiorari. It emphasized, for example, what it regarded as Herring’s failure to cite evidence to suggest that warrantless arrests based on the type of error that occurred in his case were an increasing or significant problem. Moreover, it argued, the case did not present an appropriate vehicle for considering the ways in which computer technology has changed the nature of threats to citizens’ privacy because it did not involve a database created, maintained, or accessed by multiple law enforcement agencies. Because the overall reliability and usefulness of large-scale law enforcement information systems was not at issue here, consideration of whether the good faith exception should extend to situations where police rely on erroneous information contained in such systems “should await a case where those issues can be thoroughly explored.”

The United States Supreme Court granted Herring’s petition for certiorari on February 19, 2008.

[edit] Merits Briefing

[edit] Petitioner

In his merits brief, Herring presents three main arguments supporting his contention that application of the exclusionary rule is required in his case. He begins by arguing that because law enforcement’s own errors caused his unconstitutional arrest and search, the exclusionary rule requires that evidence found in the search be suppressed. Herring’s argument is that law enforcement should be precluded from profiting from its own illegality, and that exclusion is the traditional remedy when, as here, the government seeks to introduce evidence it has obtained solely by violating a defendant’s Fourth Amendment rights.

Second, Herring asserts that the “good faith” exception to the exclusionary rule for illegal searches resulting from judicial errors does not apply to this case, in which the illegal search resulted from law enforcement errors. Quoting Evans, Herring emphasizes the distinction between judicial errors and law enforcement errors by pointing out that unlike members of law enforcement, “court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime.” Here, Herring asserts, the exclusionary rule retains full force regardless of whether the Fourth Amendment violation at issue was committed by one law enforcement agent or several agents acting collectively, and the dispersion of relevant knowledge among law enforcement agents does not insulate their actions from Fourth Amendment principles. Moreover, because police departments are obligated to respect the Fourth Amendment, it is fair and reasonable to expect them to establish procedures to ensure communication of all relevant information regarding the status of a warrant to every officer who seeks to rely on that warrant. Finally, because Alabama law treats sheriff’s departments as part of a statewide system, the errors of the Dale County Sheriff’s Office personnel are fairly chargeable to the Coffee County officers who arrested him.

Third, Herring asserts that nothing about the nature of negligent police record-keeping justifies creating an exception to the exclusionary rule. He argues that if evidence seized pursuant to arrests based on inaccurate reports regarding the existence or status of a warrant could be used in criminal prosecutions, perverse incentives would arise with respect to police record-keeping, such as a push to structure operations so as to leave officers in the field ignorant of deficiencies in record management. Herring argues that applying the exclusionary rule would counteract these incentives and that there are no alternatives to the exclusionary rule that can provide adequate deterrence. Herring asserts that giving law enforcement officials incentives to maintain accurate records has become more pressing because the number of cross-jurisdictional inquiries is increasing and the problem of inaccurate record-keeping by police personnel is already a significant issue.

[edit] Respondent

In its brief on the merits, the government advances three main arguments to support its contention that the court of appeals correctly held that suppression is not warranted in this case. First, the government argues, the Court has limited application of the exclusionary rule to situations where it is most likely to accomplish its remedial aims without imposing undue costs.

Second, the government stresses three reasons why suppression in this case is not warranted under a cost-benefit balancing test. First, the arresting officers could not and should not have been deterred, as their reliance on the information was objectively reasonable, especially when Anderson had never in his sixteen years in law enforcement had cause to “question information coming out of Dale County.” Second, suppression is not warranted to deter other police employees, as the recordkeeping error in this case was an isolated mistake rather than the result of a systemic inattention to the need to maintain accurate databases. In addition, clerical police employees whose responsibilities include maintaining records are simply not engaged in the often competitive enterprise of ferreting out crime in the same way as officers in the field, and they are likely to view their jobs in much the same way as their counterparts who maintain similar records for courts. Third, the costs of exclusion cannot be justified in this case, because even if suppression would result in some conceivable benefits, those benefits cannot outweigh the societal costs when bad faith is not at issue.

Third, the government argues that suppression is not required simply because the person who made the negligent error in this case works for the Dale County Sheriff’s Department, rather than a court. The government reasons that although the Court has repeatedly stated that the purpose of the exclusionary rule is to deter the police rather than other actors in the criminal justice system, it has never held that suppression is warranted whenever a Fourth Amendment violation is attributable to the actions of anyone who works for a police department.

The government concludes by arguing that the Court should not accept Herring’s invitation to consider large-scale information systems that are accessible by multiple law enforcement agencies because no such information system is at issue in this case.

The case is set for oral argument on October 7.

[edit] Oral Argument Recap

Kevin Russell penned the following for SCOTUSblog.

Yesterday, the Court heard oral argument in two Fourth Amendment cases involving the scope of the rules used to implement that provisions’ protection against unreasonable searches and seizures. Although the cases involve quite distinct questions - one about the scope of the Fourth Amendment itself and the other about the scope of the exclusionary rule when the Amendment is violated - the arguments in both cases focused in large part on the traditional tensions between the need for rules that make sense in all of their application and desire to craft rules that are clear and easy to administer.

The oral arguments were particularly interesting because the Government and the defendant were called upon to take different sides of the debate in the two cases: in Herring, the defendant argued the virtue of simplicity and clarity, while in Gant it was the Government that was insisting on the need for a bright-line rule.

I should disclose that the Stanford Supreme Court Litigation Clinic represented the petitioner in Herring and filed an amicus brief supporting the respondent in Gant.

Herring

The question in Herring was whether the exclusionary rule should be applied to bar evidence obtained through the search of a defendant whom the police believed had an outstanding warrant but who actually didn’t. In this case, the warrant had been revoked some five months earlier, but the police department had negligently failed to update its records. The question before the Court was not whether the Fourth Amendment had been violated by the warrantless arrest, but rather whether the evidence obtained as a result of the unconstitutional arrest should be suppressed.

In a prior case, the Supreme Court had said suppression is not appropriate when an unconstitutional arrest was caused by clerical errors of court personnel. So one line-drawing question was whether that rule should be extended to include cases involving clerical error by police personnel. That question, however, got very little play at the oral argument. Justice Alito asked a couple questions about it, but for the most part, the Justices focused on a separate line: what level of negligence by the police should be required before suppression is an appropriate remedy?

Both parties insisted that the Court did not need to resolve that question in this case. Pam Karlan, arguing for the petitioner, argued that at the very least, negligent error (as occurred here) should result in suppression but that the Court might (perhaps in a future case) ultimately decide that something more akin to strict liability is the preferable rule for reasons of administrability. She noted, and Justice Scalia seemed to agree, that a negligence standard could lead to long, complicated and expensive suppression hearings in which courts would be required to examine the procedures the jurisdiction uses to protect against error and possibly audits to determine its error rate. That suggestion, however, got Karlan in trouble with Justice Breyer, who in addition to questioning whether Karlan needed such a rule to prevail in this case, noted that he had “trouble seeing why you’re suppressing a warrant where no one does anything wrong at all.”

The Government, represented by Deputy Solicitor General Michael Dreeben, also insisted that the Court need not draw a conclusive line in this case, but argued that “An isolated and negligent police clerical error in the maintenance of warrant records should not lead to suppression.” He made clear, however, that he would “reserve the right to argue that the exclusionary rule’s costs outweigh its benefits even if” the error was more than negligent and less than isolated. In fact, Dreeben spent much of his time making arguments that apply generally to the exclusionary rule in all cases, taking his cue from statements by a number of the Justices in Hudson v. Michigan, 547 U.S. 586 (2006) that drew into question the doctrine’s continuing validity. He thus emphasized the social costs of exclusion and the availability of alternative incentives for police forces to avoid unconstitutional arrests, including the availability of civil suits against police officers (prompting Justice Ginsburg to ask for an example of anyone ever prevailing in the circumstances of this case) and the inherent risk in executing arrest warrants.

Although the Government may well envision an ultimate bright-line rule (so suppression, ever), the rule it was arguing for in Herring (no suppression where the negligent error was isolated) did, Dreeben acknowledged, require a certain degree of case-by-case investigation of police practices, a proposition that seemed unappetizing not only to Justice Scalia but also to Justice Souter, who asked whether that meant that the same mistake would result in suppression in one town (because such errors are not “isolated” there) but not in the town next door (where errors are less common). Dreeben said that it would.

The Chief Justice and Justice Alito, however, seemed untroubled by that prospect and the prospect that suppression hearings would have to be expanded to inquire into a jurisdictions error rate. The Chief seemed to think that the inquiry could be limited to asking the officer or clerk “how many times have these warrants turned out to be wrong”? When Karlan noted that the defendant should have an opportunity to contest that testimony, the Chief suggested that cross-examination should be sufficient. And when Karlan contested this, and argued that defendants would have a right to discovery and expert testimony, Justice Alito noted that similar costs would be imposed by a standard that turns on negligence rather than the frequency of errors.

Gant

The question in Gant turned not on the scope of the exclusionary rule, but the meaning of the Fourth Amendment itself. In New York v. Belton, 453 U.S. 454 (1981), the Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident to that arrest, search the passenger compartment.” In so doing, the Court expanded a rule developed in the context of arrests in a home, which was justified as necessary to protect officer safety (from weapons that might be in reach of the suspect during the arrest) and to preserve evidence (that might be destroyed by the arrestee).

Officers arrested Gant for driving with a suspended license and for an outstanding warrant for failure to appear in court on a prior charge of driving with a suspended license. At the time of his arrest, Gant had walked a short distance from his car before being arrested, and was then handcuffed and placed in the back of a squad car. The police then searched his car.

The question in Gant is whether the rule of Belton should be modified or rejected, at least as applied to arrests for minor violations when the arrestee is handcuffed and placed in a police car prior to the search.

The Arizona Supreme Court had held that the rule makes no sense in such circumstances and therefore does not apply. In the United State Supreme Court, the State’s counsel, Joesph Maziarz, placed great emphasis on the fact that Belton was settled precedent and the need for a clear, bright-line rule.

[A brief aside: Maziarz must have had a brief moment of panic when he stood up and the Chief Justice announced that the Court would hear argument not in Gant, but in another case, Kennedy v. Plan Administrator, which was heard later in the day. The Chief quickly corrected himself and noted that “It’s still early in the term.” Justice Kennedy then asked Mr. Maziarz if he had any views on the other case, which he did not.]

Maziarz’s great difficulty (shared by Assistant Solicitor General Anthony Yang, who shared time as amicus supporting the State), was widespread skepticism on the Court that the bright-line rule made any sense - in terms of its traditional justifications - in the common situation in which officers arrest someone, cuff him, and put him in the back of a squad car before searching the vehicle. Justices Souter, Kennedy, Scalia, Ginsburg and Stevens all were openly incredulous of the claim that officer safety could justify the rule. And Justice Scalia scoffed at the idea that there was any need to preserve evidence that might be found in the car in the case of an arrest for a traffic violation. “Evidence of what?” he asked. When Yang suggested that the search might turn up evidence of a more serious crime, Scalia asked in disbelief “you avowedly say that once you arrest somebody you can rummage around for evidence of a different crime”?

Justice Kennedy invited both the State and the Assistant Solicitor General to identify some new justification and seemed mildly frustrated when neither counsel accepted the invitation. Speaking to Yang, he said “It seems to me there are good reasons for searching that car. It’s — it’s movable. That’s the old vehicle exception. It can have contraband in it. It can be stolen. It can be taken for joy rides. But you don’t seem to make any of those arguments. You just want to keep coming back to officer safety and on that point I think your case is very weak.”

Justice Scalia similarly asked both sides whether there was any historical - as opposed to pragmatic - justification for the rule. “If you stopped Thomas Jefferson’s carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you - could you then go and search his carriage?” No one seemed to know.

Although members of the Court gave a good deal of grief to Arizona and United States, a number of Justices were also openly troubled by the suggestion from Gant’s attorney, Thomas F. Jacobs, that the Court should depart from the bright-line rule established in Belton.

Jacobs’ first question came from Justice Scalia - a traditional proponent of clear rules over flexible standards - noting that the Court had a bright-line rule permitting the search of the person of an arrestee regardless of whether or not the person posed any realistic threat to officers. “I mean, if the police arrest Mother Teresa, they are still entitled to frisk her, right, even though there’s little likelihood that she has a Gatt?”

Other Justices were concerned about how the Court could draw an administrable line if it backed away from Belton. The Chief Justice, for example, expressed his view that the “The whole point of a bright-line rule is that you don’t look at the specific facts and it presents a problem here you say the guy is handcuffed and in the back of the car? Well what if he is in the back of the car but not handcuffed? What if there are five people around who might break open the police car and free him? What if there are three people around? You have exactly the same case by case inquiry that Belton said we are not going to do.” Justice Alito asked similar questions.

Interestingly, neither the Chief Justice nor Justice Alito seemed particularly concerned about adopting a more case-by-case approach to the exclusionary rule in Herring. While it may simply be a case of inconsistency on their part, the Justices might also think that it is far more important to have a bright line rule governing police officers’ primary conduct than it is to have a simple rule for judges to apply after-the-fact in administering the exclusionary rule.

Justice Alito was also quite concerned that whether Belton made sense or not, it was established precedent. He asked,”what’s the justification for overruling Belton? Is it, has there been no reliance on it, is the Belton rule less workable than the rule that, the case by case rule that you’re proposing, is it undermined by subsequent developments and precedent or does stare decisus simply not count in these cases?” Getting himself in a bit of trouble, Jacobs seemed to answer that it was enough that Belton was wrong, provoking Justice Breyer to say that he would require more. “Now, is there some indication that that’s turned out to be abusive? Is there indication that there are other problems with the rule as it turned out to be complicated? What kinds of things you could say that will overcome what I’m putting forth as a kind of reluctance.” Jacobs answered that modern police procedures - including the pervasive practice of handcuffing suspects and putting them in the back of a police car - have undermined the premise of Belton.

The arguments in these cases illustrate the complexity of arguing Fourth Amendment cases before this Court. It is not simply a question of appealing to Justices’ support for, or skepticism of, the exclusionary rule or broad discretion for law enforcement officers. Many of the Justices are also concerned about need for clear, administrable rules, while others simultaneously resist the inflexibility and illogical results a bright-line rule inevitably gives rise to. And while some Justices are more than ready to abandon old decisions and doctrines they believe were wrongly adopted or no longer make sense (be it the exclusionary rule or Belton) others feel strongly about the Court’s obligation to adhere to its prior precedent absent strong justification for departure. And to make matters worse, these various considerations often point in different directions and cut across the traditional liberal-conservative lines on the Court: Justices Breyer and Alito worry about stare decisis, while Justice Thomas is much less concerned; Justice Kennedy wants a rule that makes pragmatic sense, while Justice Scalia doesn’t care if the rule is nonsensical if it has a historical pedigree; Scalia worries about a vague standard for applying the exclusionary rule, but the Chief Justice not so much. In the end, the cross-currents can sometimes give advocates more to work with in crafting arguments that can attract five votes. But at the same time, it sometimes makes the task of holding together a coalition quite complicated.

[edit] Opinion Analysis

Tom Goldstein originally wrote the following for SCOTUSblog.

By way of full disclosure, I was one of the defendant’s lawyers in the Herring case, though my involvement in it was very limited. I am not an expert on the Fourth Amendment, but my preliminary reaction is that we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century. On its facts, the case is about the application of the exclusionary rule to errors in police recordkeeping. Narrowly framed, the question was whether the Court’s prior ruling that errors by judicial clerks do not trigger the exclusionary rule should be applied to police clerks. The Court holds that a negligent error by the police clerk does not give rise to exclusion. The dissents dispute the majority’s reasoning within that frame of reference - i.e., they treat the case as if it were only about police clerks and police recordkeeping.

But in fact the majority’s reasoning is broader - much, much broader. Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Slip Op. at 9. “[W]e conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements,” the exclusionary rule does not apply. Id. at 12.

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.

As I understand the Fourth Amendment, that is a significant shift in the Court’s jurisprudence, which itself follows on the Court’s signal in Hudson v. Michigan that it was considering a significant narrowing of the exclusionary rule. Previously, the Court had applied the good faith exception only to non-police conduct. See United States v. Leon, 468 U.S. 897 (1984) (magistrate error in finding probable cause); Massachusetts v. Sheppard, 468 U.S. 981 (1984) (judge’s error in correcting warrant); Illinois v. Krull, 480 U.S. 340 (1987) (statute later declared unconstitutional); Arizona v. Evans, 514 U.S. 1 (1995) (court clerk error). The rationale of those cases was that exclusion would not “deter police misconduct.” Leon, 468 U.S. at 916. By contrast, the Court had made clear that when police officers “have engaged in willful, or at the very least negligent, conduct,” courts “refus[e] to admit evidence gained as a result of such conduct” in order to “instill in those particular investigating officers, or in their future counterparts, a greater degree of care towards the rights of the accused.” United States v. Peltier, 422 U.S. 531, 538 (1975). Note in particular the specific statement in Peltier that the exclusionary rule is triggered by negligence, which seemingly is largely repudiated today.

The one limitation on the Court’s opinion — and it will be the key to determining whether it reworks Fourth Amendment jurisprudence very significantly — is the Court’s statement that its rule applies to police conduct “attenuated from the arrest.” Those statements constrain today’s holding largely to the bounds of existing law. But the logic of the decision spans far more broadly, and the next logical step — which I predict is 2 years away — is abandoning the “attentuation” reference altogether.

Thus, immediately after stating that “nonrecurring and attentuated negligence is thus far removed from the core concerns that led us to adopt the [exclusionary] rule,” the Court’s opinion states that “we have never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than this.” The latter phrasing omits any reference to the attenuation requirement (which is no accident), and I predict that it’s that one that is likely to be found controlling by the Supreme Court in later cases.

The likely coming change in the law is illustrated by the way ordinary exclusionary cases have operated for decades. Take Georgia v. Randolph, which I argued a few terms ago. The Court held that a wife could not consent to a search over the objection of her husband, who was present at the time. Such a search, the Court held, violated the Fourth Amendment. Everyone in the case understood that the officers’ violation of the Fourth Amendment automatically triggered the exclusionary rule. But in fact the reasonable belief of the officers that they could enter the house (given that the law was unsettled at the time of the search) would mean that the evidence seized would not be suppressed.

The rubber will hit the road in cases in which the officers’ error is one of fact, not law. Herring is such a case - the officer is said to have reasonably relied on the information provided by a police warrant clerk. But what about the more common circumstance in which an officer, based on information not provided by anyone else, negligently but erroneously concludes that probable cause exists. For example, the officer believes that an individual is wanted for arrest but doesn’t call to confirm that fact, or the officer believes that a bag contains marijuana but a closer inspection would have shown otherwise. In the past, those cases would have automatically triggered the exclusionary rule - the Fourth Amendment violation required exclusion.

No more, if the “attenuated” element is not taken very seriously. The same inquiry into good faith will need to be conducted in the hundreds (or more likely thousands) of other cases each year in which the police conduct a search in the absence of probable cause. All those cases may need to be looked at differently now. Under Herring, it seems to me that a court needs to consider whether the officer made a reasonable error of law (as in Randolph) or reasonable error of fact (in Herring and the ordinary traffic stop case). If the officer was merely negligent, from an objective perspective, the exclusionary rule does not apply.

How much the new rule makes a difference will also depend on how much daylight courts perceive between the probable cause inquiry itself (which already looks to what a reasonable officer would believe) and the added layer of the inquiry into the officer’s negligence. If Herring comes to be cited for the proposition that the defendant must affirmatively prove that the officer was reckless rather than merely negligent, then the exclusionary rule will apply much, much more rarely than it does today.

Interestingly, as I said, the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.

[edit] Links and further information

[edit] Podcasts

Ohio State Law Professor Joshua Dressler previews this case in a 13-minute podcast.

[edit] Press

• C&C: Herring, Barney Fife, and Elephants (October 8, 2008)
• Volokh: Oral Argument in Herring v. United States (October 7, 2008)

[edit] SCOTUSblog

• Analysis: Oral Arguments in Herring and Gant
• Conference Call (February 11, 2008)