Wither the Exclusionary Rule?

On October 7, the Supreme Court heard argument on a significant Fourth Amendment issue –- application of the good faith exception to the exclusionary rule –- that could lead to a dramatic contraction in the primary remedy for Fourth Amendment violations. The case is Herring v. United States. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding arrest warrant for him. 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. There being no warrant nor any probable cause for Herring’s arrest, it was plainly illegal.

The normal remedy would be to exclude the evidence found as a consequence of the illegal arrest. But the prosecutor convinced the lower courts to instead extend the good faith exception to the exclusionary rule.

In a 1995 decision, Arizona v. Evans, the Court refused to exclude evidence obtained from a similarly unjustified arrest when the police relied on an erroneous entry in an electronic database stating there was a warrant to arrest Evans. But the Evans Court emphasized that the source of the mistake there was a clerk employed by the court and the case reserved judgment for whether the good faith exception applies when the clerk is employed by the police. This distinction sounded narrow to the lower courts and they extended the good faith exception to reliance on errors by a police clerk.

But I think we are at the edge of a major change. To date, the court has kept the good faith exception fairly narrow, applying only when the police rely on errors made by judicial or legislative personnel. Admittedly, the Solicitor General’s argument in Herring is not broad: “An isolated and negligent police clerical error in the maintenance of warrant records should not lead to suppression.” Nonetheless, if the exception also applies to mistakes the police made themselves, then I predict that there will be a good faith issue in every case of a Fourth Amendment violation.

First, if the Court won’t draw a line between police employees and judicial employees, it seems unlikely that the Court would draw a line between a sworn field officer and a police clerk. So, if a police officer can act in good faith on the error of a police clerk, she can likely act in good faith on the error of a fellow detective. Second, if we don’t exclude evidence when Detective A relies on a negligent but isolated error by Detective B, then I don’t see why we would exclude evidence when Detective B relies on her own negligent but isolated error. For example, if Detective B misreads the name on the warrant, it shouldn’t matter to exclusion whether Detective B makes the erroneous arrest herself or Detective A does. Finally, it also seems difficult to draw a line between good faith mistakes about the existence of a warrant and good faith mistakes about the existence of other facts relevant to the Fourth Amendment. Justice Souter made this point in the oral argument. Referring to the “dent” the Solicitor General advocated for the warrant requirement, he said: “I don’t see . . .  why coherence would not require us to make the same dent in the probable cause requirement for equally isolated mistakes.”

In sum, if police erroneously and negligently believe they have probable cause or exigent circumstances justifying a warrantless search or arrest, a ruling for the government in Herring will pave the way for saying that there is no exclusion if the error is isolated (or there is no evidence that it is not isolated). The case may therefore offer a way to eliminate the presumption that evidence obtained from or because of an illegal search is excluded and to replace it with a presumption of admissibility, absent proof that the Fourth Amendment violation was systematic (rather than isolated) or intentional (rather than in good faith).

Perhaps my chain of reasoning seems attenuated given how the Solicitor General, as a good advocate, asks only for a marginal extension of the law. But note a point Chief Justice Roberts made at the argument: “It may be an illegal arrest, but the question is the separate one of whether or not you exclude the evidence collected incident to arrest. . . . I guess it’s difficult for me to see if no one has done anything wrong, no one, why would you suppress the evidence in that case?” Given that the question posits that the arrest is illegal, Roberts is using “wrong” to refer something beyond a violation of the Fourth Amendment, something like the violation being systematic or intentional. He is questioning exclusion as a remedy when the police have committed only an isolated and negligent violation of the Fourth Amendment

Would it be a good idea to limit the exclusionary rule in this way? Having written a lot to explain the doctrinal importance of the case, I will save the normative question for another day.

Comments

[dWj]

I'm not a lawyer, but what has always bothered me about the exclusionary rule as the primary, perhaps sole, remedy for an unreasonable search is that it provides no remedy to those who are innocent of any crime, and it deters police only insofar as they wish to genuinely catch lawbreakers. That said, I have no idea how a court would try to impose an actual penalty for violations. Ideally, though, some remedy would be available that would deter police equally whether the improper search found anything or not, and ideally that deterrence would extend to the employment of careless clerks.

[Uzair Kayani]

The exclusionary rule seems to address two unrelated concerns: (i) the defendant's constitutional rights and (ii) checks and balances. When the police negligently procures evidence, it threatens both the defendant and the warrant issuing judge.

Extending the good faith exception to negligent searches seems to focus on the latter concern (judicial power over the police), and not on the Fourth Amendment right. Maybe the constitutional right question drops out altogether.

After all, it probably does not matter to the defendant whether the illegal search was part of a pattern or an isolated event. It does, however, matter to the judiciary whether a police department exhibits a pattern of disregarding the warrant issuing judge.

[jimbino]

Is it "wither" or "whither"?

[Richard McAdams]

Either word works. "Whither" asks where the exclusionary rule is going. "Wither" asks if the rule is losing its force or vitality.

[Roach]

A few thoughts. There are other remedies for innocent victims of police misbehavior in the form of Section 1983 and Bivens civil rights suits. Akil Amar some years ago said these civil suits should be the sole remedy and we should be done with the exclusionary rule b/c it punishes the whole community in a sense for the mistake of a single police officer.

As for the records mistake, I can't agree. While I think there should perhaps be a schedule of fines for people wrongfully imprisoned even in good faith and even for one night, the harm addressed by the exclusionary rule is the danger of an armed and authorized agent of the state, clothed with that state's authority, abusing his power by intimidating, overstepping, or otherwise misusing his grant. Honest mistakes by clerks, while regrettable and hopefully compensable are on a different order. The harm is not the same.

Incidentally, and for what it's worth, about 99% of criminal defendants arrested on warrants will claim "They took care of that warrant months ago." Watch an episode of COPS if you don't believe me. There is some value in people "having their day in court" and addressing their complaints and defenses in the more orderly judicial realm rather than punishing cops for bringing them before the courts to do so. In other words, a night in jail is not ideal, but we don't want cops to second-guess clerical systems, not to search incident to arrest, nor to encourage "resistance to unlawful arrest" which is allowed in some jurisdictions and likely would be allowed in this case.

[Joshua Dilger]

It certainly feels like this issue could be resolved by readressing the issue of where the mistake came from. You point out that past judges have refused to differentiate between problems stemming from clerks employed by the police and problems stemming from sources outside the police. While on the one hand it does seem narrow to depend on who employs the mistake maker, on the other hand, where the mistake maker is employed makes a world of difference. Making such a differentiation diffuses the problems presented in your well-written article.

[Joshua Dilger]

In response to Uzair Kayani, I disagree. While it may not matter so much to any one defendent whether the illegal search was part of a pattern, it definitly matters to society-at-large. In fact, such is the primary concern of the fourth amendment (the secondary concern being the relationship between the officer and the warrant issuer).