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HERRING V. U.S.
The Supreme Court has ruled by 5-4 split decision that the exclusionary rule, which bars evidence obtained in an illegal search, is not absolute. The case in question, Herring v. U.S., involved a police officer, Mark Anderson, who executed a warrant to arrest Bennie Dean Herring, (described by the Times as "very unlucky as well as felonious in his conduct,") who had previous run-ins with the law and was at the Sherriff's department to retrieve items from his impounded car. A search turned up a gun and metamphatamines in Herring's possession.
The warrant had actually expired several months earlier, so the search was illegal even though Anderson had made an honest mistake. Evidence illegally obtained is usually inadmissible. But with the court's decision, under circumstances such as the one above, this won't be the case.
The problem is that Roberts' opinion, which, according to the Times, finds that "police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply," which has a much broader potential effect than simply negligent recordkeeping. It could end up putting the burden of proof on the defendant's lawyers to prove the officer acted recklessly, rather than simply made a mistake. But we have the exclusionary rule for a reason, and this ruling would seem to invite abuse from police officers who want to perform a search but don't have probable cause. Over at SCOTUSBlog, Tom Goldstein, who was part of Herrings' defense team, explains better than I can and in much more detail.
-- A. Serwer
COMMENTS (6)
One of the things that gets lost in debates about decisions like this is that the ultimate goal of the exclusionary rule is not to ban in court the use of evidence obtained by bad searches, but to ban the bad searches themselves. The focus on these matters is always on whether some criminal will go free because the evidence needed to convict him was improperly acquired. What is always lost is that discouraging police from conducting bad searches protects the innocent as much as the guilty. The fourth amendment is meant, as it states, to protect people from unreasonable searches and seizures. If police have no incentive not to unreasonably search people, an incentive such as the exclusionary rule, then they lack an incentive to exercise care in who they search and why they search them. It's not just intentional police misconduct that the fourth amendment protects us against, but negligent misconduct as well.
Posted by: Stephen Green | January 14, 2009 7:27 PM
Given the immense power of the state to prosecute and punish, shouldn't we be finding ways to force the state to be right and not excuse them when it is wrong?
Posted by: Paul Richardson | January 14, 2009 10:39 PM
If it's a gun and a known bad guy, I don't think an exclusionary rule would deter police misconduct. Maybe it can't be used in court, but at least they got the gun out of the guy's hands.
Posted by: captcrisis | January 15, 2009 4:52 PM
What great news! So police can get a warrant for any house and go search every residence they feel like until they find evidence of something. Then they say "Oops wrong house" and the evidence sticks. I say start with John Roberts' place. Be sure to kick down the door.
Posted by: David | January 18, 2009 12:50 AM
I respectfully disagree that the ruling applies to any police negligence. As the Court said (and as noted in the SCOTUS blog mentioned above), “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 "such as that described here" refers to the specific negligence in Herring. So IMHO, the decision can be read narrowly to apply to only the type of negligence that occurred.
The big question is, will the Court limit itself to that narrow reading?
Posted by: Evelyn Calogero | January 18, 2009 7:24 AM
No matter how you look at it, it's a step in the wrong direction. The way to prevent crime (including overreaching and abusive police force) is not by the hammer of the law. Giving police offers more leeway will not prevent crime. So why do it? What our government is after is more and more power held by itself and less and less power held by the people. To truly prevent crime, a battle has to be won in the hearts and minds of the people. This battle needs to be fought and won by parents, friends and neighbors, and can never be won and shouldn't ever be fought by our government.
Posted by: Just some dude | January 18, 2009 3:07 PM