Supreme Court marks limit of exclusionary rule?
It has been told to every law student (and even many non law students) for over two hundred years: The Fourth Amendment to the United States Constitution forbids unreasonable searches and seizures and, for the most part, requires the police to have probable cause or a warrant before making an arrest. Sounds simple enough. In practice, of course, it is anything but.
Case law has established an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. This judicially created rule was and is designed to safeguard our Fourth Amendment rights through its deterrent effect.
But the Supreme Court has recently cut back on the scope of the exclusionary rule. Herring v. United States, 129 S. Ct. 695 (2009). In this case, Bennie Herring was arrested in one Alabama county based on a warrant listed in a neighboring county. A search incident to that arrest found a gun and drugs. It was subsequently discovered that the warrant had been recalled months earlier, though the recall had never been entered into the database. Herring, who was indicated on federal gun and drug charges, moved to suppress the evidence on the ground that his initial arrest had been illegal. The District Court, even after assuming a Fourth Amendment violation, found the exclusionary rule did not apply. The Eleventh Circuit affirmed, finding the arresting officers were innocent of any wrongdoing and that the failure to update the database was merely negligent.
In a 5-4 decision, the Supreme Court affirmed and held that when police mistakes which lead to an unlawful search are the result of isolated negligence attenuated from the search – as contrasted with systemic error or a reckless disregard of constitutional requirements – the exclusionary rule does not apply. The Court found that the conduct here was not objectively culpable as to require exclusion as the marginal benefits that might follow from suppressing evidence obtained in this circumstance cannot justify the substantial cost of exclusion.
To trigger the exclusionary rule, the law enforcement conduct must be sufficiently deliberate and culpable such that exclusion can meaningfully deter similar conduct in the future. The analysis is objective, it is not an inquiry into the arresting officers’ subjective awareness. Had the police knowingly made false entries in the database or if it was shown law enforcement was reckless is maintaining the warrant system, that conduct would have justified application of the exclusionary rule. No such conduct took place here as it was an administrative oversight. Excluding the evidence in this case would have provided no deterrence to future misconduct.
The dissent argued that the exclusionary rule is often the only effective remedy to redress a Fourth Amendment violation and that it remains absolutely necessary to ensure that the Fourth Amendment prohibitions are observed. Further, the dissenters contended that to compel respect for our constitutional guarantees, the Court should have excluded the evidence to ensure that there existed no any incentive to disregard the Fourth Amendment. Finally, the dissent contended that the majority opinion runs counter to a foundational premise of tort law – that liability for negligence (a lack of due care) creates an incentive to act with greater care.
(With appreciation to Scott M. Badami, Esq., for contributing this entry)
