Herring v. United States: are errors in government databases preventing defendants from receiving fair trials?

• Author: Hess, Alex R.

Cite as 11 J. High Tech. L. 129 (2010)

1. Introduction

   In 1791, the framers of our Bill of Rights could not have foreseen the technological advancements that came about during the modern age. (1) As Justice Brandeis put it "this [C]ourt has repeatedly sustained the exercise of power by Congress, under various clauses of [the Constitution], over objects of which the fathers could not have dreamed." (2) Marvel and invention have redefined law enforcement in both the field and in the courtroom. (3) In response, the judiciary has been forced to balance the rights of the accused with those of law enforcement. (4) The ever-changing technology used by police and prosecutors has made it difficult to establish bright line rules regarding evidence obtained through the use of technology. (5) Thus the legal landscape surrounding technology and the Fourth Amendment is also everchanging. (6)

   In the modern age, where law enforcement is dependent on computers, the accuracy of government databases may determine whether a defendant gets a fair trial. Technology has played a major role in the area of Fourth Amendment search and seizure law through its use in law enforcement and the determination of probable cause. (7) In 1961, Mapp v. Ohio applied the exclusionary rule to all federal and state criminal proceedings; suppressing evidence at trial that was obtained through a Fourth Amendment violation. (8) However, since Mapp, the Supreme Court has limited the application of the exclusionary rule. (9) When probable cause for an arrest is founded on errors in government databases, the Supreme Court has allowed evidence obtained from that search into trial. (10) As a result, individuals are having evidence seized in violation of the Fourth Amendment used against them at trial.

   The recent decision of Herring v. United States even further restricts the application of the exclusionary rule where errors in government databases form the basis for a search. (11) Under Herring, errors in government databases have the potential to infringe on an individual's right against unreasonable search and seizures. (12) The result is unfair: the accused is faced with illegally seized evidence and the government receives no penalty for keeping incorrect records. As policing becomes more reliant on computerized systems, the number of illegal arrests and searches based on errors in government record-keeping is poised to multiply.

2. History

   1. The Exclusionary Rule and Early Technology

      In 1914, the Supreme Court unanimously ruled that evidence seized in violation of the Fourth Amendment must be excluded from evidence in federal criminal prosecutions. (13) This remedy, known as the exclusionary rule, provides a disincentive to police officers and prosecutors who illegally gather evidence in violation of the Fourth Amendment. (14) The Weeks Court recognized that unless a remedy was available to those who have had their rights violated, the Fourth Amendment protections would mean nothing:

      The Fourth Amendment was intended to secure the citizen in person and property against unlawful invasion of the sanctity of his home by officers of the law acting under legislative or judicial sanction. This protection is equally extended to the action of the Government and officers of the law acting under it. To sanction such proceedings would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action. (15) While the Weeks decision significantly changed criminal procedure and increased the protections under the Fourth Amendment, its holding did not extend to state criminal proceedings. (16) This limitation lasted four decades, until a change in court membership brought with it a change in judicial philosophy. (17) The Warren Court dramatically reformed criminal procedure through incorporating the Bill of Rights and its protections to apply to state criminal proceedings. (18)

      In 1960, after receiving a tip that Dollree Mapp was harboring a fugitive at her home, the Cleveland police broke into her home flashing a fake warrant in her face, when in fact they did not have a search warrant. (19) After an exhaustive search of the house, the police discovered obscene material that violated Ohio anti-obscenity statutes. (20) The Mapp Court was troubled by this deliberate violation of the Fourth Amendment and held that the evidence seized must be excluded from the state criminal proceeding. (21) While Mapp drastically expanded the reach of the exclusionary rule, twenty years later the membership of the Supreme Court had changed, and once again, so had the philosophy of the majority.

      In 1984, the Supreme Court curtailed application of the exclusionary rule by creating a "good faith" exception. (22) In California, police officers executed a search warrant that was later invalidated due to a lack of probable cause. (23) In holding that the evidence obtained through the search is admissible at trial, the Leon Court reasoned that the purpose of the exclusionary rule is to deter police misconduct and that excluding the evidence here would not deter the judiciary from issuing unsound warrants. (24) In limiting the reach of the exclusionary rule, the Leon Court stated that the rule requires the "suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule." (25)

      A decade later, the Supreme Court once again narrowed the exclusionary rule when it had to determine whether suppression of evidence is appropriate when police conduct a search based on an error in a government database. (26) When police officers stopped Isaac Evans for a traffic violation, a computer check revealed an outstanding arrest warrant. (27) When officers arrested Evans, a search of his vehicle following the arrest revealed a bag of marijuana under the driver seat. (28) As it turned out, the arrest warrant had been revoked seventeen days before the arrest, but the court that quashed the warrant never informed the police and their database was never updated. (29) Isaac Evans appealed his conviction on the grounds that the drug evidence was the "fruit of an unlawful arrest" and that the marijuana should be suppressed because "the purposes of the exclusionary rule would be served here by making the clerks ... more careful about making sure that warrants are removed from the records." (30) The Arizona Supreme Court reversed Evans's conviction, and held that suppressing the marijuana would "serve to improve the efficiency of those who keep records in our criminal justice system." (31)

      Ultimately, however, the Supreme Court disagreed and Arizona v. Evans extended the good-faith exception to the exclusionary rule to apply to government database errors. (32) In reaching this conclusion, the Evans Court stated that "the exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees." (33) More importantly, the Evans Court relied on the fact that there is no basis for believing that applying the exclusionary rule to court clerk errors would increase the accuracy of police databases. (34)

   2. Government Databases and Errors

      In 1967, FBI director J. Edgar Hoover created the National Crime Information Center ("NCIC") to facilitate information flow between the numerous federal and state branches of law enforcement. (35) The NCIC is a computerized database that provides access to information about criminals, their records, and missing persons to law enforcement agencies. (36) Data on criminal records, wanted persons and crimes are exchanged throughout federal and state law enforcement agencies and ultimately compiled into the FBI's NCIC database. (37) The NCIC is the nation's largest criminal database, and provides over 80,000 law enforcement agencies, including police departments, with access to data on wanted persons, missing persons, gang members as well as information on stolen items. (38)

      By 1974, the NCIC's importance and influence over law enforcement caused Congress to act and regulate the database. (39) The Privacy Act of 1974 ("Privacy Act") requires government agencies to keep accurate records. (40) This applied both to the NCIC database and to local databases held by federal and state agencies. (41) Upon inception of the NCIC, the accuracy of these records was at issue and certain courts made their position on the matter known. (42) Most notably was the U.S. Circuit Court of Appeals for the District of Columbia:

      The FBI cannot take the position that it is a mere passive recipient of records received from others, when it in fact energizes those records by maintaining a system of criminal files and disseminating the criminal records widely, acting in effect as a step-up transformer that puts into the system a capacity for both good and harm. (43) From 1971-1984, during his time as national staff counsel and executive director of the ACLU's Washington office, John Shattuck was at the forefront of major civil rights and liberties issues during the Nixon, Ford, Carter and Reagan administrations, often involving the accuracy of government databases. (44) "In New Orleans, a mother on welfare was arrested and jailed for eighteen hours on the basis of an inaccurate crime report resulting from programming errors in police computers." (45) In New York, a middle-aged man was denied a license to drive a taxi because a computerized credit report showed that when he was thirteen years old in Massachusetts he temporarily had been placed in a mental institution, but the file failed to show that he was an orphan and the institution was the only home the state authorities could find for him for a period of four years. (46) In Massachusetts, an elderly woman lost her Medicaid benefits when a computer...