End of the Exclusionary Rule? Pt. I.

>> Monday, February 2, 2009

Herring v. United States decision, a 5-4 majority concluded that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. The majority presents the facts of the case are as follows,

On July 7, 2004, Investigator Mark Anderson learned that Bennie Dean Herring had driven to the Coffee County Sheriff’s Department to retrieve something from his impounded truck. Herring was no stranger to law enforcement, and Anderson asked the county’s warrant clerk,Sandy Pope, to check for any outstanding warrants for Herring’s arrest. When she found none, Anderson asked Pope to check with Sharon Morgan, her counterpart in neighboring Dale County. After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him.A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle. App. 17–23.

There had, however, been a mistake about the warrant. The Dale County sheriff’s computer records are supposed to correspond to actual arrest warrants, which the office also maintains. But when Morgan went to the files to retrieve the actual warrant to fax to Pope, Morgan was unable to find it. She called a court clerk and learned that the warrant had been recalled five months earlier. Normally when a warrant is recalled the court clerk’s office or a judge’s chambers calls Morgan, who enters the information in the sheriff’s computer database and disposes of the physical copy. For whatever reason, the information about the recall of the warrant for Herring did not appear in the database. Morgan immediately called Pope to alert her to the mix up, and Pope contacted Anderson over a secure radio. This all unfolded in 10 to 15 minutes, but Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office.

Chief Justice Roberts Delivered the opinion of the court,

The Fourth Amendment forbids “unreasonable searches and seizures,” and this usually requires the police to have probable cause or a warrant before making an arrest.What if an officer reasonably believes there is an out-standing arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by an-other police employee? The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment, but dispute whether contraband found during a search incident to that arrest must be excluded in a later prosecution.

Our cases establish that such suppression is not an automatic consequence of a Fourth Amendment violation.Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. Here the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence.

The Majority has three major anchors for its reasoning in this case. The first is the isolation of the conduct, the second is the conduct is negligent as opposed to reckless, and the third is the attenuation of the arrest. All three of these points work to a simple learned hand cost benefit analysis on the part of the majority. The majority asks, is the deterrence more valuable than the conviction? Their answer is no for the three reasons stated above.

The majority must engage in policy analysis as a part of their balancing equation. They do attempt to identify what deterrent value is presented by excluding the evidence. Unfortunately they assert that because the errors are not systematic or the result of intentional ignorance on the part of either Dale or Coffee County there would be no deterrence value. This i think is flagrantly wrong as the dissent by Justice Ginsburg makes clear,

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. See ante, at 9,11. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care. The Government so acknowledges. See Brief for United States 21; cf. Reply Brief 12.

That the mistake here involved the failure to make a computer entry hardly means that application of the exclusionary rule would have minimal value. “Just as the risk of respondeat superior liability encourages employers to supervise . . . their employees’ conduct [more carefully],so the risk of exclusion of evidence encourages policymakers and systems managers to monitor the performance of the systems they install and the personnel employed to operate those systems.” Evans, 514 U. S., at 29, n. 5 (GINSBURG, J., dissenting).

Consider the potential impact of a decision applying the exclusionary rule in this case. As earlier observed, see supra, at 2, the record indicates that there is no electronic connection between the warrant database of the Dale County Sheriff’s Department and that of the County Circuit Clerk’s office, which is located in the basement of the same building. App. 39–40, 43, 45. When a warrant is recalled, one of the “many different people that have access to th[e] warrants,” id., at 60, must find the hard copy of the warrant in the “two or three different places” where the department houses warrants, id., at 41, return it to the Clerk’s office, and manually update the Department’s database, see id., at 60. The record reflects no routine practice of checking the database for accuracy, and the failure to remove the entry for Herring’s warrant was not discovered until Investigator Anderson sought to pursue Herring five months later. Is it not altogether obvious that the Department could take further precautions to ensure the integrity of its database? The Sheriff’s Department “is in a position to remedy the situation and might well do so if the exclusionary rule is there to remove the incentive to do otherwise.” 1 W. LaFave, Search and Seizure §1.8(e), p. 313 (4th ed. 2004). See also Evans, 514
U. S., at 21 (STEVENS, J., dissenting).

It hardly seems like it should go without saying but the definition of negligence is that your conduct was unreasonable and that you should have done better. The 4th amendment expressly forbids unreasonable searches and seizures. The majority bifurcates the conduct of the arresting officers seemingly in the face of the Leon precedent which requires that the Court look at the conduct of all the officers involved. This would invite the treatment of the Dale County officers present in the dissent and also breaks down the idea of attenuation presented by he majority.

The dissent illustrates a real world policy impact that the interconnection of modern law enforcement presents. The database of one police department may be linked to countless others not only in neighboring counties but around the country. It is a common occurrence that the actions taken by police not at the scene or in the neighboring counties will cause arrests. If we are dealing in the objective realities as the majority contends then we should not excuse negligent conduct that leads to an arrest as somehow unconnected to the actual stop.

Databases are becoming an essential tool for law enforcement and we should be interested in keeping those records as up to date as possible. The majority glosses over this point by relying on the idea that a "systematic" failure to update the databases would lead to exclusion but the definition of systematic is more than likely a high burden. After all the warrant in error in this case went 5 months without being resolved and in this fast passed world 5 months is a very long time.

The final point that the dissent makes that i think the majority was well aware of and in fact encourages is the lack of due process, day in court, for the violation of the acknowledged 4th amendment right. The majority appears to believe that the violation does not warrant redress because the conduct is not intentional. I cannot disagree more strongly. To eliminate redress for the violation of a constitutional right neglects to treat to constitution and the rights it contains with proper respect. To expect police officers who earn convictions to be reprimanded is asking a lot.

There is always a backlash when accused criminals go despite no culpability on the part of arresting officers. Here though the fact that the negligence was a result of police conduct should negate any of those arguments. The police as a whole are not clean in this and they should have been penalized for the negligence they displayed in this case. However the majority felt otherwise.

Next time i will explore the idea that the rule is in danger of being eliminated in its entirety.


O-le,O-le, O-le, O-le! O-le, O-le!

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