Excluding the Exclusionary Rule

February 2, 2009 |  Tagged , | Comments Off on Excluding the Exclusionary Rule

A couple of weeks ago, the Supreme Court announced its decision in Herring v. United States, providing for limitations on the application of the Exclusionary Rule in cases of police negligence. The ruling is ill-conceived, but certainly not outrageous. However, in a few pieces of dicta in his opinion, Chief Justice John Roberts seems to let slip his true feelings about the Exclusionary Rule and the Fourth Amendment more broadly – feelings which could more reasonably be described as outrageous.

As always, we start with the facts. Bennie Herring had come to the Coffee County Sheriff’s Department to retrieve some personal items from his car which had been impounded. Investigator Mark Anderson was at the Department that day, and it seems that Anderson and Herring had something of a checkered past. Indeed, Herring had suggested to the District Attorney that Anderson was involved in the killing of a local teenager. So, let’s just say that these guys did not like each other. So, knowing that Herring was at the Department, Anderson asked the Coffee County warrant clerk to see if there were any outstanding warrants for Herring’s arrest. The clerk found none, so Anderson asked her to call the warrant clerk of neighboring Dale County, and alas, they found a warrant for Herring’s arrest. With this information, Anderson promptly arrested and searched Herring, finding some methamphetamine in his pocket and a pistol in his truck (which was illegal, given his status as a felon). Mere minutes after the arrest and search, Anderson received word from the warrant clerk that the warrant was invalid – it had been recalled five months earlier, but the computer database had not been updated (which apparently was the duty of a police official).

Naturally, Herring sought to invoke the Exclusionary Rule. Not so surprisingly, the magistrate judge in the Middle District of Alabama and the Eleventh Circuit would have none of that. And that brings us to our beloved Supreme Court.

Chief Justice Roberts, writing for a 5-4 majority (including Justices Scalia, Kennedy, Thomas, and Alito), affirmed the Eleventh Circuit’s ruling, relying primarily on the argument that applying the Exclusionary Rule to cases of police negligence (that is, rather than reckless or intentional violation of the Constitution) would not have the deterrent effect that is at the “core” of the Exclusionary Rule. Justice Ruth Bader Ginsburg, in her dissent (which Justices Stevens, Souter, and Breyer joined), noted that “The suggestion runs counter to a foundational premise of tort law—that liability for negligence … creates an incentive to act with greater care.” Indeed, to suggest that negligent actions cannot be deterred is to spit in the face of the entire tort system. It should be clear to anyone who has taken first-year Torts that our legal system constantly seeks to deter negligent actions, often – dare I say? – with some degree of success!

The Chief Justice also relies heavily on the Court’s decision in Arizona v. Evans, which held that the exclusionary rule ought not to apply to similar mistakes by judicial employees. As Justice Breyer rightly notes in his separate dissent, “The rationale for our decision was premised on a distinction between judicial errors and police errors.” He goes on to note the three reasons why this distinction is important: first, the exclusionary rule exists historically to deter police misconduct, not judicial misconduct; second, judicial employees do not have the same inclination to subvert the Fourth Amendment that police employees may have; third, application of the exclusionary rule would not deter future judicial mistakes – after all, judicial employees have no stakes in the outcome of these cases as police employees do. So, Evans is clearly distinguishable from Herring; the fact that the mistake at issue was made by a police employee is not only relevant, but ought to be controlling in this case. This sort of negligence on the part of police employees can be deterred by application of the exclusionary rule.

Even though I clearly disagree with the Court’s ruling, I can admit that it is not an outrageous one. The position staked out by the Chief Justice is not by any means an ultra-conservative one. However, it is not the ruling itself that worries me that much; it is the Chief Justice’s dicta.

In this case, both parties admitted that there was a Fourth Amendment violation; however, Chief Justice Roberts states that “When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation.” So, even though the parties agreed that the Constitution had been violated, the Chief Justice suggested that there may not have been a violation here, and that the Exclusionary Rule question may not even arise. Readers are forced to wonder what the Court’s decision would have been had the United States government not conceded that there was a Fourth Amendment violation.

Early in his opinion, the Chief Justice shows his displeasure with the Exclusionary Rule, noting that the Constitution “contains no provision expressly precluding the use of evidence in violation of its commands.” He goes on (and you can almost hear him sighing), “Nonetheless, our decisions establish an exclusionary rule,” which he reminds people (as if we forgot) was “judicially created.” This is the soft-spoken Chief’s way of sounding the conservative rallying cry: “JUDICIAL ACTIVISM!”

Of course, the Chief’s dicta are just that. My guess is that Justice Kennedy would not sign on to a wholesale demolition of the Exclusionary Rule. And now with President Obama, it seems unlikely that the Chief Justice’s dreams of undoing the Warren Court’s rulings on criminal defendants’ rights will come to fruition. But still – it is rather alarming, don’t you think?

Photo courtesy of Flickr user caveman_92223.


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