Recent Legal Developments

• Author: Craig Hemmens
• DOI: 10.1177/0734016809349776
• Published date: 01 December 2009
• Date: 01 December 2009
• Subject Matter: Articles

586

Recent Legal Developments

Criminal Justice Decisions of the

United States Supreme Court, 2008 Term

During its 2008 term, the U.S. Supreme Court decided a total of 79 cases, issuing 75

signed opinions and 4 summary reversals. A total of 31 cases (39%) involved a crim-

inal justice-related issue. Although a number of these decisions will have only a slight

impact on the daily administration of justice, there were a number of significant decisions

involving criminal justice, including decisions involving search and seizure, interrogations,

and sentencing.

Almost a third (26 of 79) of the Court’s decisions were unanimous, while another 17

cases (21%) were decided by at least a 7–2 vote. About 23 (29%) cases were decided by a

narrow 5–4 margin. This is a significant increase over the 2007 term (17%), and more in

line with the contentious 2006 term (33%).

Justice Kennedy remains the crucial swing vote on a court that is often divided 4–4. In

the 2006 term, Justice Kennedy was in the majority in 100% (24 of 24) of the cases decided

by a 5–4 margin. In the 2007 term, he was in the majority in 8 of the 12 cases decided by

a 5–4 vote. In the 2008 term, Justice Kennedy was in the majority in 18 of the 23 cases

(78%) decided by a 5–4 vote and in the majority in 73 (92%) of all cases. Clearly, where

Justice Kennedy goes, the Court is likely to follow.

Clear ideological divisions exist on the Court. Certain justices are consistently aligned

with some justices and not with others. For instance, Chief Justice Roberts and Justice Alito

agreed either in whole or in part in 92% of all cases, whereas on the other end of the

ideological spectrum, Justices Stevens, Ginsberg, and Souter agreed either in whole or in

part in 86% of all cases. Justice Stevens cast more solo dissenting votes (28) than any other

justice. Sixteen (70%) of the 5–4 decisions broke down according to predictable ideological

lines, with Justices Scalia, Thomas, Alito, Kennedy, and Chief Justice Roberts on the rights

and Justices Stevens, Souter, Ginsberg, and Breyer on the left. Cases in which justices

broke ranks included cases involving sentencing issues (the Apprendi and Blakely-related

cases) and cases involving the Confrontation Clause.

I present below a summary and analysis of the most significant decisions involving

criminal justice. Space limitations prevent a discussion of every criminal justice-related

decision. The cases are divided, somewhat roughly, into categories.

Police Investigatory Practices

Herring v. United States (2008)

In Arizona v. Evans (1995), the Supreme Court held that the exclusionary rule did not

apply to evidence seized incident to an arrest that violated the Fourth Amendment because

Criminal Justice Review

Volume 34 Number 4

December 2009 586-601

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Editorial

Hemmens 587

it was based on erroneous information negligently provided by a court employee. The

question before the Court here was whether the exclusionary rule applies when the

erroneous information was negligently provided by law enforcement personnel. In 2004,

Herring drove to the Coffee County, Alabama Sheriff’s Department to retrieve some

personal items from an impounded vehicle. When a deputy sheriff learned that Herring was

at the impound lot, he asked the department’s warrant clerk to find out whether there were

any outstanding arrest warrants for Herring. The clerk determined there was an outstanding

warrant from a neighboring county. The deputy sheriff arrested Herring as he was driving

away, and a search of Herring and his truck incident to the arrest turned up methamphetamine

in Herring’s pocket and a pistol in the truck. Shortly after the arrest and search, the clerk

discovered the arrest warrant had been recalled. Herring was indicted on charges of

possessing methamphetamine and being a felon in possession of a firearm. He moved to

suppress the evidence, arguing that because the arrest warrant on which the officer relied

had been withdrawn, the search did not take place incident to a lawful arrest. The district

court denied Herring’s motion, holding that application of the exclusionary rule would not

deter future mistakes, as the arresting officer had acted on a good faith belief that the

warrant was valid and had found the evidence before learning the warrant had been

recalled. Herring was convicted. On appeal, the Eleventh Circuit affirmed, stating that

while the search was unlawful and the police were negligent, the exclusionary rule would

not deter police in these situations and the benefits of applying the rule outweighed the cost.

The court noted that the exclusionary sanction would not be levied against the department

that was guilty of negligent record-keeping but instead against a different department in

another county that was entirely innocent of any wrongdoing.

The Supreme Court, in a 5–4 decision authored by Chief Justice Roberts, held that a

negligent error by a police clerk does not necessarily require exclusion of the evidence

obtained. This marks the first time the Court has applied the good faith exception to

mistakes made by police officers, rather than to mistakes made by others that police officers

relied upon in good faith. The majority asserted that the Evans decision had not addressed

the applicability of the good faith exception to police mistakes. Significantly, while the

facts of the case involve a clerical error by the police, the language of the opinion does not

limit the holding to clerical errors. It applies fully to negligence by police officers in their

day-to-day determination whether there is probable cause to conduct a search. If the officer

is merely negligent in concluding he has probable cause to conduct a search or make an

arrest, the exclusionary rule does not apply to whatever evidence he finds. The one

limitation on the Court’s opinion is the Court’s statement that its rule applies to police

conduct “attenuated from the arrest,” whatever that means. Writing for the four dissenters,

Justice Ginsburg argued that the majority misapplied Evans, and that the proper approach

would be to limit the good faith exception to instances where the police are not negligent

but merely rely on the negligent actions of others.

Arizona v. Johnson (2008)

Johnson was a passenger in a car stopped by Arizona state police gang investigators for

a failure to carry insurance. While the basis for the stop was the minor traffic violation,

officers nonetheless immediately began to question the occupants of the car about recent