Should the exclusionary rule be extended to situations where a police officer relies in good faith on an invalid warrant, when that reliance was the result of a clerical error made by an employee of a law enforcement agency?
In 2004, Alabama police officers arrested Bennie Dean Herring and, in a search immediately following the arrest, recovered methamphetamines and a handgun. The officers arrested Herring because they were erroneously told that that a warrant for his arrest existed. Herring moved to suppress evidence of the methamphetamines and gun, arguing that they were recovered as a result of an unlawful search, and consequently, that the exclusionary rule should apply. The United States Court of Appeals for the Eleventh Circuit denied his motion, finding that the good faith exception to the exclusionary rule extends to good faith reliance by police officers on erroneous information provided by law enforcement personnel. In reviewing this case, the Supreme Court will decide whether the deterrent effect of excluding evidence obtained as a result of negligent error by law enforcement personnel outweighs the costs of excluding such evidence, or whether the good faith exception to the exclusionary rule should be extended.
Questions as Framed for the Court by the Parties
Whether the Fourth Amendment requires evidence found during a search incident to an arrest to be suppressed when the arresting officer conducted the arrest and search in sole reliance upon facially credible but erroneous information negligently provided by another law enforcement agent.
On July 7, 2004, the petitioner, Bennie Dean Herring, went to the Coffee County Sheriff’s Department to retrieve items from an impounded motor vehicle. See Brief for Petitioner, Herring at 4. Investigator Mark Anderson, who knew Herring, asked warrant clerk Sandy Pope to check the Coffee County databases for outstanding arrest warrants for Herring. See id. After Pope found no outstanding warrants for Herring in Coffee County, Anderson asked her to call the Dale County Sheriff’s Department to ask for warrants on Herring. See id. A Dale County Sheriff’s Department warrant clerk, Sharon Morgan, checked the Dale County database and found an outstanding warrant for Herring. See Brief for Respondent, United States at 2. Pope told Anderson about the warrant and asked Morgan to fax her a copy of the warrant. See id.
Acting on the information provided by Morgan, Anderson and a Coffee County deputy sheriff arrested Herring. See Brief for Petitioner at 5. The officers searched Herring and his car and found a small bag in Herring’s pocket that tested positive for methamphetamine, and a handgun and ammunition under the front seat of his vehicle. See id. Morgan was unable to find a copy of the warrant for Herring’s arrest and contacted the Dale County Clerk’s Office, which informed her that the warrant was recalled. See Brief for the United States at 3. Morgan contacted Pope with this information, and she relayed it to Anderson. See id. By the time the officers learned that the warrant was invalid, they had already arrested and searched Herring. See id.
Herring was indicted on charges of possessing methamphetamines, in violation of 21 U.S.C. § 844(a), and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). See Herring v. United States, 492 F.3d 1212, 1214 (11th Cir. 2007). Herring moved to suppress evidence of the methamphetamines and firearm on the grounds that the search had not occurred incident to a lawful arrest, because the arresting officers acted on a rescinded arrest warrant. See id. at 1214-15. The magistrate judge denied the motion to suppress on the grounds that the arresting officers acted with a good faith belief in the validity of the warrant. See id. at 1215. He further found that the application of the exclusionary rule would not deter future mistakes in similar situations. See id. The district court accepted the magistrate’s recommendation and denied the motion to suppress. See id. A jury convicted Herring of both counts, and the court sentenced Herring to twenty-seven months of imprisonment. See id.
Herring appealed his conviction to the Eleventh Circuit, arguing that the district court incorrectly denied his motion to suppress the evidence obtained during the search. See id. The Eleventh Circuit affirmed the district court’s holding. See id. at 1218-19. On February 20th, 2008, the Supreme Court accepted Herring’s petition for certiorari to determine whether the good faith exception to the exclusionary rule should cover evidence obtained in a search conducted in good faith reliance on erroneous information provided by law enforcement personnel. See Herring v. United States, No. 07-513 (U.S. 2007).
The Exclusionary Rule
The Fourth Amendment preserves “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” United States Const. Amend. IV. The exclusionary rule is designed to exclude evidence obtained in violation of a criminal defendant’s Fourth Amendment rights. The rule is a “judicially created remedy designed to safeguard against future violations of the Fourth Amendment through its deterrent effect.” Arizona v. Evans, 514 U.S. 1, 11 (1995). The exclusionary rule applies in both state and federal proceedings. See Weeks v. United States, 232 U.S. 383, 398 (1914); Mapp v. Ohio, 367 U.S. 643, 660 (1961).
The application of the exclusionary rule is a separate issue from whether police violated the Fourth Amendment rights of the party seeking to invoke the rule. See United States v. Leon, 468 U.S. 897, 906 (1984). “Whether the exclusionary sanction is appropriately imposed in a particular case…must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence.” Id.
The Good Faith Exception to the Exclusionary Rule
In United States v. Leon, the Supreme Courtcreated a “good faith exception” to the exclusionary rule. United States v. Leon, 468 U.S. 897 (1984). In Leon, the Court held that the exclusionary rule does not apply when there is objectively reasonable, good faith reliance by police officers on warrants that are issued by neutral judicial magistrates and later determined to be invalid. See id. at 920–22. The Court found that where a police officer’s conduct is objectively reasonable, the marginal or nonexistent benefits resulting from excluding such evidence would not outweigh the substantial costs of the exclusion. See id. at 919–22. In Arizona v. Evans, the Courtextended the good faith exception to an officer’s reliance on mistakes by court employees. See Arizona v. Evans, 514 U.S. 1 (1995). However, it reserved for another day the question of whether or not evidence illegally obtained due to clerical errors made by law enforcement personnel should be subject to the exclusionary rule. See id. at 16 n.5.
Should the Exclusionary Rule Apply to Errors Made by Law Enforcement Personnel?
Herring argues that the evidence used against him should be excluded under the exclusionary rule because it was obtained in violation of his Fourth Amendment rights. See Brief for Petitioner at 13–14. He notes that exclusion is consistent with the remedial purposes of the rule, because it prevents the police from benefiting from their own misconduct, returns the parties to their positions prior to the illegal conduct. See id. at 16–17. Herring differentiates his case from the situations presented in Leon and Evans by noting that in those cases, the inaccurate information was the results of mistakes by judicial officers and employees, whereas here, the inaccurate information was provide by law enforcement personnel. See Brief for Petitioner at 18. He argues that where the mistake is attributable entirely to law enforcement, the exclusionary rule should apply, even when the false information came from a different department. See id. at 24–26. Herring points out that it is the practice of Alabama sheriffs’ departments to collaborate in a unified law enforcement enterprise, and it would be illogical to allow one department to use the mistakes of another to avoid the Fourth Amendment. See id. at 31–32.
Herring argues that failure to apply the exclusionary rule in his situation would create “perverse and dangerous incentives” for police departments to engage in negligent record keeping. Brief for Petitioner at 33. Technological developments allow law enforcement agencies to easily access information across jurisdictions, and as the number of inquiries increase, so does the risk that an individual will be detained or arrested if the record system contains inaccurate warrant information. See id. at 36–37. He further argues that allowing introduction of evidence based on an officer’s good faith reliance could create the incentive to inaccurately maintain databases in order to exploit such a loophole. See id. at 38–39; 42.
In contrast, the United States argues that application of the exclusionary rule in this case is counter to the rule's purposes. See Brief for Respondent at 11. It argues that courts should apply the exclusionary rule when its application will prevent future Fourth Amendment violations, not to correct a past violation. See id. at 11. It further notes that the exclusionary rule’s deterrent effect must be more than marginal; it is an extreme sanction, because it undermines the truth-finding function of the courts by excluding relevant evidence. See id. at 13. Here, the officers’ reliance on the warrant information was objectively reasonable, and the exclusionary rule is not intended to deter such law enforcement activity. See id. at 17, 19. Because the officers in this circumstance would be derelict if they did not arrest Herring, exclusion would have no deterrent effect unless police officers became unwilling to do their jobs. See id.
The United States also contends that the exclusion of evidence would not deter future errors by other police employees to an extent sufficient to justify the severity of the sanction. See Brief for Respondent at 19. The negligence in this case is the result of an isolated mistake, not the result of a system-wide failure to maintain databases. See id. at 19–20. The use of exclusion as a sanction is also less effective in deterring negligent Fourth Amendment violations than it is deliberate violations. See id. at 20–21. Similarly, the deterrence value of applying the exclusionary rule to negligent errors by clerical personnel, who view their role as record keepers rather than investigators of crime, will be negligible. See id. at 22–23. The United States also points out that if a police department purposely maintained false records, it would soon face difficulties plausibly denying knowledge of the inaccuracies when making arrests, and it would undermine its credibility and inflame the public. See id. at 23–25. It also notes that reliance on negligent records wastes police resources, and is just as likely to result in mistakes that hurt a department rather than help it. See id.
Are Civil Liability and Internal Discipline Sufficient to Deter Fourth Amendment Violations?
Herring’s final contention is that no alternatives to exclusion produce incentives sufficient to prevent future violations. See Brief for Petitioner at 43. Police departments have no incentive to use internal discipline to punish negligence when it leads to discovery of otherwise unavailable evidence. See id. at 45. This case illustrates the practical problem of even identifying the individual responsible, because Dale County was unable to identify the employee responsible for the error. See id. Civil liability also fails as an incentive. See id. at 46. Because of their role as government officials, qualified immunity will shield individual officers from lawsuits. See id. at 47. Alabama state law also shields sheriffs' departments and their employees from civil liability. See Brief Amicus Curiae of the American Civil Liberties Union et al. in Support of Petitioner at 16. Because chances of recovery are virtually nonexistent, few defendants will choose to sue, and few attorneys will be willing to represent them. See id. at 7.
The United States argues that Herring underestimates the effectiveness of internal discipline, and that “[t]here is no reason to assume…that police department employees are somehow uniquely immune from consequences for slipshod recordkeeping.” Brief for Respondent at 26–27. The United States similarly contests Herring’s claim that civil liability is not an effective deterrent, noting that a court is unlikely to find that qualified immunity protects a law enforcement agent who knowingly allows others to act on false information. See id. at 28–29. It further notes that unlike individuals, “local governments cannot assert qualified immunity.” Id. at 30. The United States dismisses Herring’s claims that few attorneys are willing to pursue civil rights lawsuits, noting that “the number of reported decisions suggests otherwise.” Id. at 31. Lastly, the United States contends that the costs of applying the exclusionary rule in this case outweigh any marginal deterrence. See id. at 33. To exclude the evidence found because of an honest mistake by a police department that was corrected within fifteen minutes, would have little deterrent effect, while conferring an extraordinary windfall on Herring. See id. at 34–35.
The Fourth Amendment preserves, among other things, “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. Amend. IV. The exclusionary rule excludes from trial evidence obtained through means that violates a defendant’s Fourth Amendment Rights. See United States v. Leon, 468 U.S. 897, 906 (1984). In United States v. Leon, the Supreme Court created a “good faith exception” to the exclusionary rule. See id. at 897 (1984). The Court held admissible evidence obtained by police officers conducting a search in good faith on arrest warrants that were issued by a judicial magistrate, but later found to be invalid. See id. at 920–22.
A ruling in favor of the United States would extend the good faith exception to evidence illegally obtained due to clerical errors made by law enforcement personnel. Such a ruling might have several implications. First, Herring argues that such a ruling would disincentive police departments, as well as government agencies, from taking steps to improve their database records. See Brief for Petitioner at 34–37. If courts allowed the admission of evidence discovered as a result of such mistakes, law enforcement agencies might condone negligent database maintenance and the inaccurate transmission of information. See id. at 11–12. This creates cause for concern, especially given the increasingly networked nature of databases. Brief of Amici Curiae Electronic Privacy Information Center (“EPIC”) et al. in Support of Petitioner at 35–36. The National Association of Criminal Defense Lawyers notes that as effective law enforcement today requires access to databases in different jurisdictions, often run by different agencies, erroneous searches and arrests (such as the one at issue in this case) could drastically multiply in the future. See Brief for Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner at 21–24, 28. Such a ruling would also create an opportunity for the police to hide behind the good faith exception to obtain and introduce into court otherwise inadmissible evidence obtained through unlawful seizures. See Brief for Petitioner at 38–39.
The United States argues that the costs of applying the exclusionary rule in this situation far outweigh any benefit that might result. See Brief for Respondent at 33–34. In this case, applying the exclusionary rule would allow a convicted criminal to go free simply because of an honest mistake by a police department. See id. at 34. It argues that the Court “recognized that some latitude must be allowed for honest mistakes,” particularly since there is little that can be done to deter such a mistake. Id. at 35. The United States also notes that there are numerous mechanisms in place that encourage the law enforcement agencies to store and transmit information in an accurate fashion. See id. at 9. For example, officers acting on inaccurate information or a recalled warrant waste police resources that could be better employed elsewhere. See id. at 25. Similarly, internal discipline and exposure to civil liability also serve as deterrents against erroneous data keeping and transmission of information. See id. 25–28. Given the incentives in place, as well as the nature of the mistake (a quickly remedied and isolated error), it argues the costs of incremental deterrence outweighs the marginal benefits of incremental deterrence. See id. 33–36.
The Supreme Court’s decision in Herring v. United States will have important consequences for the future of the exclusionary rule. If the Court finds for Herring and holds that the exclusionary rule applies to evidence found when law enforcement personnel acted in good faith on erroneous information, it could significantly affect the use and maintenance of computerized databases by law enforcement agencies. A decision for the United States, holding that the good faith exception allows the use of such evidence, would constrict the ability of criminal defendants to successfully exclude evidence obtained during unconstitutional searches. Either way, the Supreme Court’s decision in this case will clarify the scope of the exclusionary rule.
• CRS Annotated Constitution: Fourth Amendment “Search and Seizure”