Herring v. United States: the Continued Erosion of the Exclusionary Rule - Robert W. Smith

• Citation: Vol. 61 No. 2
• Publication year: 2010

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Herring v. United States: The Continued Erosion of the Exclusionary Rule

At its inception, the exclusionary rule was relatively straightforward: The use at trial of evidence obtained from a search or seizure that violated a defendant's Fourth Amendment¹ rights was itself a violation of the defendant's constitutional rights.² But throughout the exclusionary rule's history, its source, scope, purpose, and applicability have all seen changes, ultimately limiting the situations in which evidence obtained through a Fourth Amendment violation would be suppressed.³ The key to the limitation of the exclusionary rule was the United States Supreme Court's eventual conclusion that the use at trial of illegally seized evidence does not always violate the Constitution.⁴ The court's decision in Herring v. United States⁵ is the most recent in a long line of cases in which the Court has limited the applicability of the exclusionary rule through the "good faith exception."⁶ By extending a preexisting exception to the exclusionary rule,⁷ Herring made the rule inapplicable when a police officer makes an arrest with a mistaken but reasonable belief that there is a valid warrant, despite the fact that the officer's mistaken belief was caused by another officer's negligence.⁸

I. Factual Background

On July 7, 2004, Bennie Herring drove to the Coffee County, Alabama, sheriff's department to access his impounded truck. After Herring left, Investigator Mark Anderson asked Sandy Pope, the warrant clerk, to check the sheriff's department's database for any outstanding warrants on Herring. Pope's search returned no active warrants. Anderson then requested that Pope call the Dale County, Alabama sheriff's department to find out if Herring had any outstanding warrants there. Pope called Sharon Morgan, the Dale County warrant clerk, whose search of that sheriff's department's database returned an active warrant on Herring. Pope informed Anderson of the active warrant and then asked Morgan to fax over a copy. Anderson and another deputy then arrested Herring and discovered methamphetamine and a firearm while searching him incident to the arrest. While Anderson and the deputy searched Herring, Morgan went to fax the warrant to Pope but could not find it. The Dale County clerk's office informed Morgan that the warrant had been recalled five months earlier. For some reason, the recall had not been entered into the sheriff's department's computer database. Once Morgan discovered the mistake, she informed Pope. However, Herring had already been arrested, searched, and found with the illegal contraband.⁹

Herring was indicted in the united States District Court for the Middle District of Alabama. He moved to suppress the firearm and methamphetamine as evidence on the ground that his initial arrest was illegal due to the lack of either a warrant or probable cause, rendering the subsequent search also invalid. The district court denied his motion, ruling that because the arresting officers acted in a good faith beliefthat there was an outstanding warrant, application of the exclusionary rule would serve no deterrent purpose.¹⁰ The United States Court of Appeals for the Eleventh Circuit affirmed, holding that even though the unconstitutional search was caused by police error, the conduct that caused "the error was merely negligent and attenuated from the arrest," making any deterrent benefit of suppressing the evidence marginal or nonexistent.¹¹ Therefore, the good faith exception of United States v. Leon¹² was held to be applicable.¹³ In a 5-4 decision, the United States Supreme Court affirmed the conviction.¹⁴ The Court held that even if an officer's reasonable belief of a warrant's existence was caused by police conduct, the evidence will not be excluded unless (1) the conduct is deliberate or reckless to the extent that exclusion can deter such conduct, and (2) deterrence is worth the price paid by society.¹⁵ Because the unconstitutional search in this case was the result of another police employee's isolated negligence that was attenuated from the actual search, the Court held that application of the exclusionary rule was unwarranted.¹⁶

II. Legal Background

A. A History of the Exclusionary Rule: From a Constitutional Right to the Balancing Approach

The Fourth Amendment to the United States Constitution¹⁷ guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures."¹⁸ The text of the Amendment is notably silent as to what constitutes an unreasonable search or seizure.¹⁹ The general rule is that a search or seizure performed by an officer without a warrant is unreasonable;²⁰ however, the Court has recognized a significant number of exceptions to the warrant requirement.²¹ Arrests, searches, and stops can therefore be performed in some circumstances by police officers without a warrant.²² Nevertheless, it is a violation of a citizen's Fourth Amendment rights if he is subjected to a search or seizure by a police officer without a warrant or under circumstances that do not fall into one ofthe established exceptions.²³ Because the text of the Fourth Amendment is also silent with regard to a means of enforcing its guarantees,²⁴ the Court has struggled with how to give our Fourth Amendment rights real meaning.

As early as 1877 in Ex parte Jackson²⁵ and again in 1886 in Boyd v. United States,²⁶ the Court hinted that there might be a rule of evidentiary exclusion for Fourth Amendment violations.²⁷ However, the Court did not actually acknowledge and apply the exclusionary rule until 1914.²⁸ Writing for a unanimous majority in

Weeks v. United States,²⁹ Justice Day explained that because the evidence at issue was obtained through an unconstitutional search, its use in a federal prosecution was barred by the Fourth Amendment.³⁰ In reaching this conclusion, Justice Day reasoned that the Fourth Amendment protects the public from unreasonable searches and seizures by placing federal officials, as well as federal courts, under limitations and restraints.³¹ To include evidence obtained in unlawful searches and seizures, he concluded, "would be to affirm by judicial decision a manifest neglect, ifnot an open defiance, of the prohibitions of the Constitution."³² Justice Day's proclamation of the exclusionary rule in Weeks did, however, confine the rule's applicability to evidence obtained in constitutional violations committed by the federal government only.³³ Justice Day explained that the rule did not apply to state officials, such as police officers, because the Fourth Amendment did not regulate their conduct.³⁴

In Wolf v. Colorado,³⁵ the Court considered whether the Due Process Clause of the Fourteenth Amendment³⁶ imposed the exclusionary rule upon the states.³⁷ Justice Frankfurter's majority opinion³⁸ acknowledged that the right to be secure against arbitrary police intrusion is implicit in the concept ofordered liberty, and therefore, it is imposed on the states by the Fourteenth Amendment.³⁹ However, that basic right did not demand the exclusion of evidence solely because the evidence would be excluded in federal court under the Fourth Amendment.⁴⁰

Twelve years later, the Court decided Mapp v. Ohio,⁴¹ in which it again addressed the exclusionary rule's applicability to state prosecu-tions.⁴² Only Justice Black and Justice Frankfurter remained on the court from the Wolf majority. Writing for the majority,⁴³ Justice Clark concluded that because the Fourth Amendment had been declared enforceable against the states through the Fourteenth Amendment, it was "enforceable against them by the same sanction of exclusion as [was] used against the Federal Government."⁴⁴ Therefore, after the Mapp decision, the exclusionary rule became both required by the Constitution and applied to state prosecutions.⁴⁵

In 1974 the case of United States v. Calandra⁴⁶ presented the Court with the issue of whether the exclusionary rule applied to evidence presented in grand jury proceedings.⁴⁷ With only Justice Brennan and Justice Douglas remaining from the Mapp majority, the Court held that it did not.⁴⁸ In reaching that decision, Justice Powell emphasized in his majority opinion⁴⁹ that the exclusionary rule was not a personal constitutional right, as the Court had previously held in Mapp.⁵⁰ He explained that the exclusionary rule was instead "a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect" on police misconduct.⁵¹ He concluded that application ofthe exclusionary rule is, therefore, only appropriate when the deterrent effect is sufficient to justify the potential injury imposed on society by excluding competent evidence.⁵² Justice Powell reasoned that application of the exclusionary rule to evidence in a grand jury proceeding would have, at best, a minimal deterrent effect on police misconduct.⁵³ Because that minimal deterrent effect could not justify the high cost to society of impeding the function of the grand jury, the Court created a categorical exception to applying the exclusionary rule in grand jury proceedings.⁵⁴

In his dissenting opinion in Calandra, Justice Brennan explained that the majority's holding had depreciated the exclusionary rule's applicability, making it turn only on whether, in a particular type of proceeding, exclusion would further deter future police misconduct.⁵⁵ Justice Brennan's dissent would prove to be somewhat prophetic, as the Court applied this balancing approach time and again to create categorical exceptions to the exclusionary rule. For example, the Court has applied this balancing approach to hold that the exclusionary rule is inapplicable in federal civil proceedings,⁵⁶ civil deportation proceedings,⁵⁷ parole revocation hearings,⁵⁸ and federal habeas corpus proceedings when the defendant had the opportunity to raise it at state trial.⁵⁹

B. The Modern Balancing Approach Applied to the...