Is the exclusionary rule dead?

• Author: Bradley, Craig M.

1. INTRODUCTION

   In Herring v. United States, (1) the Supreme Court cast serious doubt on the continued existence of the exclusionary rule when it issued a narrow holding stating that exclusion is inappropriate when police misconduct is "the result of isolated negligence attenuated from the arrest." (2) The Court went on to suggest that evidence should be excluded only when it is obtained through "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (3) In Herring, the police relied on another county's erroneous report that an arrest warrant was in effect for the defendant, but the Court applied its new standard and refused to exclude evidence found during his subsequent arrest. (4)

   In most cases, the police mistake will not be "attenuated" from the arrest or search, nor will it be reckless, deliberate, or grossly negligent. The Supreme Court has insisted, in numerous contexts, that the courts should not probe the minds of police officers in order to determine the reasonableness of police behavior. (5) Herring seems to establish a test based on "deliberate" or "reckless" conduct; this test has "sent courts rushing into the minds of police officers." (6) Nor is it clear what "recklessness" means. Was the Court adopting the narrow Model Penal Code standard of "consciously disregard[ing] a substantial and unjustifiable risk" of a Fourth Amendment violation, (7) which would be virtually impossible for defendants to prove? Or was it establishing some lesser standard? Further, the Court assumed that police recklessness could be deterred by exclusion but negligence could or should not be. This is not obvious. Herring thus raised many questions about the scope of the exclusionary rule that the Court was redefining. (8)

   In Davis v. United States, (9) decided last Term, the Supreme Court answered one of these questions as to one type of case and made it seem unlikely that Herring might be limited to its narrow holding. Davis held that when police followed existing circuit precedent and searched a car incident to arrest, the fact that the Supreme Court had subsequently invalidated that precedent did not justify exclusion. (10) This result seems easy since the police were not even negligent in this case. However, to what extent the exclusionary rule applies to various other kinds of scenarios remains unclear. (11) The post-Herring decisions of the courts of appeals suggest that the exclusionary rule is not dead but has been significantly limited by Herring.

   This Article will examine Herring, its predecessor, Hudson v. Michigan, (12) the courts of appeals decisions interpreting them, and Davis in an attempt to determine the current status of the exclusionary rule. The Article proposes that "simple isolated negligence," which Davis claims is no basis for exclusion, should be distinguished from "substantial negligence" in which the suspect's privacy interests are seriously compromised by police negligence. In the three cases decided so far, the police negligence has either not interfered with a substantial right and been attenuated from the finding of the evidence (Hudson), or the arresting officers have acted entirely reasonably (Herring and Davis). Therefore we do not yet know how the Court will react to a case in which (1) there is police negligence, (2) that negligence substantially interferes with a suspect's privacy interests, as in an illegal arrest, a car search, or a warrantless search of a home, and (3) the negligence is not "attenuated" from the finding of the evidence. Thus, there is still some hope for the exclusionary rule.

2. HERRING V. UNITED STATES AND HUDSON V. MICHIGAN

   Although Herring is considered the main case on the status of the exclusionary rule, its predecessor, Hudson v. Michigan, (13) fired the first shot of the current Court's attack on the rule. In Hudson, police executing a search warrant failed to knock and announce before entry, thus admittedly violating a requirement of Fourth Amendment law. (14) However, the Court, per Justice Scalia, held that the exclusionary rule should only apply in cases "where its deterrent benefits outweigh its substantial social costs." (15)

   In the landmark case of Mapp v. Ohio, the Court declared: "We hold that all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court." (16) The Hudson Court wrote off Mapp's holding as "expansive dicta." (17) The Court suggested that knock-and-announce violations could be dealt with by civil suits, despite the fact that the suspect's fifteen to twenty seconds of lost privacy (18) would be worth nothing in a civil suit. Thus, as a practical matter, the Fourth Amendment's knock-and-announce requirement was dead, since police could violate it without consequence.

   Further, the Court noted that evidence found after a knock-and-announce violation is not a result of that violation. Instead, the police would have found the evidence anyway in the subsequent search; thus the Court likened this case to the doctrines of inevitable discovery and independent source that allow the admission of evidence despite a violation. (19) In other words, according to the Court, the finding of the evidence was "attenuated" from the violation. (20) The Court was not willing to recognize that suspects can use that time to flush evidence down the toilet or throw it into a fire.

   The exact scope of Hudson was rendered unclear by the concurring opinion of Justice Kennedy, who lent his crucial fifth vote to pertinent parts of the majority opinion. But Justice Kennedy then declared that "the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt. Today's decision determines only that in the specific context of the knock-and-announce requirement, a violation is not sufficiently related to the later discovery of evidence to justify suppression." (21) It is hard to imagine another Fourth Amendment violation whose consequences are as minor as the fifteen to twenty seconds of privacy lost when police fail to knock and announce during execution of a search warrant. So it is fair to deem Hudson a unique case, important only for what it says in dictum about the exclusionary rule, not for its holding.

   Three years later, it was necessary for the Court to decide Herring to try to solidify its new conception of the exclusionary rule, and to get a majority to join the opinion without reservation. In Herring, police in one county relied on another county's report of an outstanding arrest warrant for Herring. They arrested him, searched him incident to arrest, and found a gun and drugs, which were the basis of the federal charges against him. Shortly after the search, they discovered that the other county had made a mistake and that there was no warrant outstanding for Herring. Nevertheless, he was prosecuted. The trial judge refused to exclude the evidence, and the Eleventh Circuit Court of Appeals affirmed. (22)

   In agreeing that the evidence found should not have been suppressed, the Court, per the Chief Justice, reiterated Hudson's unfounded statement that "exclusion 'has always been our last resort, not our first impulse.'" (23) But this time it set forth a test for determining when evidence should not be suppressed. As noted earlier, the Court held narrowly that "[h]ere the error was the result of isolated negligence attenuated from the arrest. We hold that in these circumstances the jury should not be barred from considering all the evidence." (24)

   On the other hand, the Court suggested that the exclusionary rule should only be employed "to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (25) The Court went on:

   We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon, we held that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant. (26) As Professor Albert Alschuler and I both pointed out, (27) this case could be read narrowly as holding that here, where the arresting officers and their chain of command were in no way at fault, and where the error in the other county was thus "attenuated" from the arrest, it made no sense to apply the exclusionary rule because there was no culpable behavior by police to deter. This reading, and the fact that Justice Kennedy joined this opinion, is consistent with his statement in Hudson that he was not endorsing a wholesale remodeling of the exclusionary rule. A number of commentators, including Professors Wayne LaFave and Orin Kerr, also suggested that given the narrowness of the "holding" language, Herring itself was but a small extension of Arizona v. Evans, (28) which had previously held that evidence would not be excluded when police rely on a mistake in the court system's database. (29) The error was that of someone other than the arresting officers. But the commentators recognized that Herring boded ill for the future of the rule. (30)

   Herring could also be read broadly as definitely establishing the new exclusionary formula discussed above, what Alschuler deems the "big blast" view of Herring: that the defendant would have to prove recklessness, or gross or systemic negligence, in each case in order to get the evidence suppressed, whether the seizure was "attenuated" from the violation or not. (31) Alschuler asked why, if the big blast view is correct, the Court bothered to use the "attenuated" qualifier at all. (32) It would have been clearer to...