POLICE NEGLIGENCE DOES NOT ALWAYS TRIGGER THE EXCLUSONARY RULE
The United States Supreme Court has ruled, in a 5-4 decision, that “if an officer reasonably believes there is an outstanding arrest warrant, but that belief turns out to be wrong because of a negligent bookkeeping error by another police employee,” then the “contraband found during a search incident to that arrest” is not always subject to the exclusionary rule.
In Herring v. United States (U.S. Jan. 14, 2009) the Court ruled that “suppression is not an automatic consequence of a Fourth Amendment violation.” Rather, 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.” (Emphasis added.) The Court reasoned that “the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.”
Summary of the Case
On July 7, 2004, Bennie Herring drove to a County Sheriff’s Department in Alabama to get something from his impounded truck. While Herring was there, officers checked for outstanding warrants in the region. After Herring had left, a clerk from a neighboring county “replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge.”
Officers acted on what turned out to be a warrant which had been recalled five months earlier. They followed Herring “as he left the impound lot, pulled him over, and arrested him. A search incident to the arrest revealed methamphetamine in Herring’s pocket, and a pistol (which as a felon he could not possess) in his vehicle.”
The warrant should have, but had not, been removed from the police database. By the time the clerk had realized the mistake and contacted the sheriff’s department, “Herring had already been arrested and found with the gun and drugs, just a few hundred yards from the sheriff’s office.” Herring was subsequently indicted for illegal possession of a firearm and drugs, and he “moved to suppress the evidence on the ground that his initial arrest had been illegal because the warrant had been rescinded.”
Judicial Balancing Test Used for Application of the Exclusionary Rule
The United States Supreme Court disagreed and ruled that the evidence was not subject to the exclusionary rule, because the “rule… applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free…. We hold that in these circumstances [present in this case] the jury should not be barred from considering all the evidence.” Since the deterrence of excluding the evidence would be minimal because the mistake was an innocent, isolated, act of negligence, the exclusionary rule did not apply.
The Court ruled that a balancing test must be used to determine if the exclusionary rule is applicable to the evidence, insofar as the “extent to which the exclusionary rule is justified by its deterrent effect varies with the degree of law enforcement culpability… Indeed, the abuses that gave rise to the rule featured intentional conduct that was patently unconstitutional… An error arising from nonrecurring and attenuated negligence is far removed from the core concerns that led to the rule’s adoption.”
Court Distinguishes Between Negligent Police Misconduct and Deliberate Police Misconduct
The Court began its analysis of the exclusionary rule with the observation that “our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” The rule is meant to deter police behavior which is “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.”
The Court then proceeded to state, “that this judicially created rule is ‘designed to safeguard Fourth Amendment rights generally through its deterrent effect’” and that “the benefits of deterrence must outweigh the costs.” The exclusionary rule may be applied to evidence, but first the “incremental deterrent” effect must be balanced against any “substantial social costs.” The Court recognized that the main cost of the exclusionary rule is “letting guilty and possibly dangerous defendants go free.”
The “extent to which the exclusionary rule is justified by… deterrence principles varies with the culpability of the law enforcement conduct.” Since the police misconduct at issue in Herring was the result of isolated negligence, rather than deliberate or reckless conduct, suppressing the evidence would have a minimal deterrent effect on subsequent police misconduct while a guilty defendant would go free.
Although “somebody in Dale County should have updated the computer database to reflect the recall of the arrest warrant…this error was negligent…[and not] reckless or deliberate… That fact is crucial to our holding that this error is not enough by itself to require ‘the extreme sanction of exclusion.’”
The Officers Had a “Good Faith” Belief in the Invalid Arrest Warrant
Relying on prior decisions which found 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,” the Court determined that the same principle applies to a mistaken, but “good faith,” belief in the invalid arrest warrant.
The Court characterized its decision as simply addressing unresolved questions from prior rulings which held that the exclusionary rule did not apply when misconduct was the result of reasonable reliance on mistaken information. The prior decisions dealt with administrative searches or judicial employees. The Herring decision specifically addressed clerical errors by police department employees, because the Court “assumed that whoever failed to update the… records was also a law enforcement official.”
How This Affects Your Agency
Evidence seized pursuant to police misconduct caused by isolated negligence, rather than deliberate or reckless behavior, is likely to now be admissible into court for use by the prosecutor. However, since the ruling applies only to negligent and isolated police misconduct, the impact will not be on official agency policies but, more so, on individual, innocent circumstances.
The Court cautioned that the decision does not “suggest that all recordkeeping errors by the police are immune from the exclusionary rule.” For example, if “the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified…” This case does not allow for ongoing negligence on the part of any law enforcement agency.
Please consult with your legal counsel if evidence seized by your agency’s officers (which previously would have been excluded from court) may be impacted by this ruling. As always, however, if you wish to discuss this matter in greater detail, please don’t hesitate to contact me at (714) 446-1400 or via e-mail at mjm@jones-mayer.com