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.


Published in: on February 2, 2009 at 8:28 pm Comments Off on Excluding the Exclusionary Rule
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