Herring and the Exclusionary Rule
On Wednesday, the Supreme Court announced the decision in Herring v. United States, a case I discussed on the blog in October. The 5-4 majority opinion (you can guess the votes) expands the good faith exception to the Fourth Amendment exclusionary rule in precisely the way that I said may prove transformative.
The facts involve a record-keeping error. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding warrant for Herring’s arrest. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier, but no one had bothered to update the warrant database. There being no warrant and no probable cause for Herring’s arrest, the lower courts find it plainly illegal. But those courts avoid excluding the illegally obtained evidence by extending an earlier Supreme Court decision, Arizona v. Evans, that allowed the good faith exception when clerical personnel of a court made a similar data entry mistake.
In October, I noted that this seemingly narrow distinction in the source of the error – court clerk vs. police clerk – could be significant. Every other good faith exception to the exclusionary rule has involved an error made by judicial or legislative personnel. If the exception also applies to mistakes the police made themselves, then there will be a potential good faith issue in every case of a Fourth Amendment violation.
This prediction is supported by Chief Justice Roberts’ broad reasoning: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. 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. The error in this case does not rise to that level.” With one caveat noted below, this reasoning is broad. It does not draw any line between the police clerk making an error and a sworn field officer making the error. Nor is the reasoning limited to good faith errors about the existence of warrants or the accuracy of record-keeping. Because the reasoning applies to mistakes about any fact relevant to the Fourth Amendment, it seems to repudiate the exclusion remedy whenever a governmental actor’s isolated and negligent error causes the constitutional violation. A great many applications of the exclusionary rule now involve errors for which the defendant will be unable to prove anything beyond isolated negligence. If so, Herring will transform the exclusionary rule from the standard remedy to the exceptional remedy. It will be transformative.
I do not mean to say that this result is assured. There may not be five votes for such a sweeping change. One Justice in the majority might in future cases distinguish errors that do not involve record-keeping or warrants. Even then, Herring does seem to free lower courts to adopt the more far-reaching approach until the Supreme Court says otherwise.
But I must note one crucial caveat. The Court repeatedly limits its holding to circumstances where the negligent act is “attenuated from the arrest.” The Court does not explain this limit, but in the context of the case, the language appears to refer to the fact that the clerical error was made five months before the arrest and made by personnel other than the arresting officer. The Court may be leaving open the possibility that the good faith exception requires that the officer conducting the illegal search or seizure is not the same officer who made the error (and perhaps that the passage of time also separates the two). But the Court’s reasoning is not consistent with this distinction. If we don’t exclude evidence when officer A relies on a negligent but isolated error by officer B, because the evidentiary costs outweigh the deterrence benefits, then I don’t see why we would exclude evidence when Detective B relies on her own negligent but isolated error. Presumably the cost-benefit analysis is the same. If one of the Justices joining the majority wants to limit the opinion in future cases, this is the hook for doing so. But if “attenuated from the arrest” turns out not to mean much and not to limit the exception, then courts will refuse exclusion whenever the defendant fails to prove the police violation was recurring or more than negligent. The effect here would be to create a strong presumption against exclusion.
The four dissenters say something equally interesting for the future direction of the exclusionary rule, given some possibility that the new administration might replace one of the Justices in the Herring majority. For some time, the Court has appeared to agree that there is no rationale for the exclusionary rule other than the deterrence of future Fourth Amendment violations. But the four dissenters appear to revive the other rationale for the rule, stated in Mapp but fallen from favor: that exclusion preserves the integrity of the judiciary by avoiding complicity in the constitutional violation. One more vote for this proposition would not only reverse Herring, but might actually re-invigorate the exclusionary rule to a degree not seen since before the Rehnquist Court.
I will discuss the normative question – is Herring good or bad? – at a later time.