Wednesday, January 14, 2009

SCOTUS: "Police Error? No Problem!"

The United States Supreme Court continues its long retreat from the civil liberties heyday of the Warren Court, holding in Herring v. U.S. that the exclusionary rule doesn't apply to cases of negligent police error:

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 Herring had been withdrawn five months earlier and had been left in the computer system by mistake.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.

No big deal, right? After all, the exclusionary rule exists mainly to prevent intentional bad conduct on the part of the police right? Well, that's the theory, but I'll let Barry Green explain why it doesn't quite work that way:

Get ready, folks. There is more to come in the years ahead. Plus, your government now has every incentive to keep crappy records about arrest warrants. And what's to keep a cop from saying, "Oh, I misread the screen in my patrol car. I thought he had a valid warrant but I made an isolated and negligent mistake. My bad."

If you don't think police do that from time to time, then you're uninformed.

For a more in-depth legal discussion see Tom Goldstein and Orin Kerr, dissenting from Goldstein's interpretation of the decision.

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