Justices Say Evidence Is Valid Despite Police Error

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Published on Wednesday, 14 January 2009

Written by David Stout, NY Times

The Supreme Court on Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court's majority came to a conclusion that will most likely please those who complain about criminals going free on "technicalities" and alarm those who fear that the high court is looking for ways to narrow the reach of the exclusionary rule.

Mr. Herring had gone to the Coffee County, Ala., sheriff's department on July 7, 2004, to retrieve something from his truck, which had been impounded. "Herring was no stranger to law enforcement," as Chief Justice John G. Roberts, Jr. observed dryly in his opinion for the court.

And he was no stranger to Mark Anderson, an investigator for the sheriff's department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional under the Fourth Amendment? No, the Supreme Court ruled.

"When 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," Chief Justice Roberts wrote in an opinion joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito, Jr.

"We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule," the majority noted. But the justices said the official errors in the Herring case do not compare with the kind of egregious and deliberate police misconduct that gave rise to the exclusionary rule in the first place.

Deciding when to throw out evidence under the exclusionary rule is a balancing act, the majority said. Is the official misconduct serious enough that the evidence should be disallowed to deter future misconduct, even if criminals sometimes go free?

Not in Mr. Herring's case, the majority ruled, upholding findings by a federal district court and the United States Court of Appeals for the 11th Circuit.

Justices Ruth Bader Ginsburg, John Paul Stevens, David H. Souter and Stephen G. Breyer dissented. "In my view, the Court's opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement," Justice Ginsburg wrote.

But in the majority opinion, the chief justice wrote that the exclusionary rule "is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free."

At another point, Chief Justice Roberts wrote that "the very phrase 'probable cause' confirms that the Fourth Amendment does not demand all possible precision."

The dissenters were unpersuaded, however. "Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means," Justice Ginsburg wrote.

Check out our podcast about the Herring case, the exclusionary rule and the so-called "good faith" exception!

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