Criminal procedure - good-faith exception to exclusionary rule extends to illegal searches based on police recordkeeping errors - Herring v. United States.

• Author: Codagnone, Amy L.
• Position: CASE COMMENTS

Criminal Procedure--Good-Faith Exception to Exclusionary Rule Extends to Illegal Searches Based on Police Recordkeeping Errors--Herring v. United States, 129 S. Ct. 695 (2009)

The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. (1) The United States Supreme Court created the exclusionary rule, which requires suppression of evidence obtained in violation of the Fourth Amendment when the potential to deter future police misconduct outweighs societal costs of excluding the evidence. (2) In Herring v. United States, (3) the Court considered whether to employ the exclusionary rule to suppress contraband found during a search incident to arrest by an officer who reasonably relied on an assurance of an outstanding warrant because of the negligent bookkeeping error by another law enforcement agency. (4) In a five-to-four decision, a majority of the Court held that the exclusionary rule would not have a sufficient deterrent effect on isolated incidences of negligent bookkeeping, and therefore affirmed the district court's decision to decline application of the exclusionary rule. (5)

On July 7, 2004, defendant Bennie Dean Herring was at the Coffee County impound lot checking on his impounded vehicle. (6) A police investigator on the scene inquired with the Coffee County warrant clerk as to whether Herring had any outstanding arrest warrants in Coffee County or in neighboring Dale County. (7) The search revealed no active warrants in Coffee County, but the Dale County warrant clerk discovered an active warrant in her database. (8) Acting on that information, the Coffee County investigator and a deputy pulled Herring over as he left the impound lot, arrested and searched him, and found contraband. (9) Meanwhile, the Dale County Sheriff's Department's warrant clerk, unable to locate a paper copy of the warrant corresponding to the internal computer record, contacted the Dale County Circuit Clerk's Office and learned the issuing judge had recalled the warrant five months prior. (10) The Dale County clerk immediately contacted the clerk in Coffee County, who informed the two arresting officers. (11) Though only ten to fifteen minutes passed between the misstatement and subsequent correction by the Dale County clerk, the Coffee County police officers had already arrested and searched Herring. (12)

A grand jury indicted Herring in the United States District Court for the Middle District of Alabama based upon the contraband found during the search. (13) Herring moved to suppress the evidence on the ground that the search was unlawful. (14) The district court considered exclusionary rule precedent and recognized that application of the good-faith exception should depend on the reasonableness of the police officers' reliance on the recordkeeping system itself. (15) Finding no credible evidence of consistent problems with recalled warrants, the district court denied the motion to suppress, concluding application of the exclusionary rule in such circumstances would not have the necessary deterrent effect. (16) After a jury convicted Herring on both counts, he appealed the district court's denial of his motion to suppress to the United States Court of Appeals for the Eleventh Circuit. (17)

The Eleventh Circuit affirmed the district court's decision to admit the evidence under the good-faith exception to the exclusionary rule. (18) The Eleventh Circuit noted the search, which was absent probable cause and a valid warrant, violated Herring's Fourth Amendment rights. (19) In determining whether the exclusionary rule applied, the Eleventh Circuit weighed the potential costs to society if the district court suppressed the evidence against the potential for deterrent effect on police misconduct. (20) Assuming the failure to bring warrant records up to date was negligent, the Eleventh Circuit determined application of the exclusionary rule would only minimally deter bad recordkeeping, and this small deterrent effect would not outweigh the cost of excluding evidence necessary to the prosecution. (21) The Supreme Court granted certiorari and affirmed the Eleventh Circuit's judgment, holding the exclusionary rule does not apply when negligent police mistakes lead to an unlawful search. (22)

The Fourth Amendment ensures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." (23) The Supreme Court has recognized the Fourth Amendment contains no provision precluding the use of evidence obtained in violation of its guarantees. (24) The exclusionary rule is a judicially-created remedy designed as a legal incentive to comply with the Constitution, and to safeguard against future Fourth Amendment violations. (25) The exclusionary rule mandates the suppression of certain evidence obtained by law enforcement officials in violation of a defendant's Fourth Amendment rights. (26) The Supreme Court has long recognized the purpose of the exclusionary rule is to deter future violations of Fourth Amendment rights by removing incentives to disregard these rights, and to compel respect for the Fourth Amendment's guarantees. (27) Because the purpose of the exclusionary rule is to deter future misconduct, it is not a personal constitutional right of the aggrieved party, and is not a necessary corollary of a Fourth Amendment violation. (28)

The Supreme Court has made clear that not every Fourth Amendment violation resulting in discovery of evidence mandates use of the exclusionary rule. (29) A court will apply the exclusionary rule and suppress fruits of an illegal search or seizure where the benefits of deterrence outweigh the social costs of exclusion. (30) This balancing test reserves application of the exclusionary rule to cases where exclusion most adequately serves the rule's remedial objectives. (31) The potential benefit of the exclusionary rule in deterring institutional police misconduct depends upon the nature and extent of the violation. (32) On the other hand, the Supreme Court has recognized the consequences of suppressing arguably probative evidence and potentially releasing dangerous criminals into society. (33)

In United States v. Leon, (34) the Court adopted a "reasonable good-faith" exception to the exclusionary rule after recognizing exclusion will not serve a deterrent purpose in some instances. (35) The Court noted the balancing test requires consideration of the egregiousness of the police misconduct because, at some point, the illegal police action is too attenuated for the deterrent effect to justify its cost. (36) The Court concluded the exclusionary rule should not apply where the officer's conduct is objectively reasonable. (37) Following the rationale set forth in Leon, the Court extended the good-faith exception in Arizona v. Evans, (38) holding that evidence seized in violation of the Fourth Amendment resulting from clerical errors of court employees fell within the good-faith exception to the exclusionary rule. (39)

In Herring v. United States, the Court narrowed the application of the exclusionary rule by holding that evidence obtained in an unlawful search resulting from isolated law enforcement negligence did not require suppression. (40) The Court accepted the parties' assumption that there was a Fourth Amendment violation and began its analysis of whether it should apply the exclusionary rule by considering the actions of the police officers involved. (41) Referencing the Eleventh Circuit's determination that the failure to update the computer database was negligent, the Court concluded the error was not enough to require "the extreme sanction of exclusion." (42) The Court weighed the benefits of deterrence against the principal costs of "letting guilty and possibly dangerous defendants go free," and impeding the law enforcement's truth-seeking objectives. (43) In this balancing test, the Court acknowledged the deterrent effect varies with the culpability of the law enforcement involved. (44) The Court reviewed its previous applications of the exclusionary rule and observed that those cases involved flagrant and intentional police misconduct. (45)

Given the core concerns of the exclusionary rule and the Court's prior applications of the exclusionary rule to situations with high levels of police culpability, the Court concluded police conduct must be sufficiently deliberate for the exclusionary rule to have a deterrent effect that justifies exclusion. (46) The Court held that the police conduct must be deliberate, reckless, or grossly negligent for application of the exclusionary rule, and the bookkeeping error in Herring did not rise to such a level. (47) The Court concluded that the Eleventh Circuit was correct to affirm the denial of the motion to suppress because there was no evidence that the negligence at issue was routine or widespread. (48) Justice Ginsburg dissented from the majority's opinion and argued the Court should not restrict the exclusionary rule's application if it wants to discourage police infringement on constitutionally protected rights. (49) Referencing the deterrent effect of negligence liability in tort law, Justice Ginsburg contended that the Court underestimated the gravity of recordkeeping errors in law enforcement, especially with the prevalence of electronic recordkeeping databases. (50) Justice Breyer also dissented, agreeing with Justice Ginsburg's conclusion, but writing separately to contend the trigger for the exclusionary rule should depend on a...