The smell of Herring: a critique of the Supreme Court's latest assault on the exclusionary rule.

• Author: Lafave, Wayne R.

"The herring, the smell of herring again.... The smell of the herring had penetrated [one's] thoughts...."

~ MARTHA BLUM, THE WALNUT TREE 227 (1999).

1. INTRODUCTION

   In 1961, about the time I began my labors in academe, the Supreme Court in Mapp v. Ohio (1) gave full effect to the Fourth Amendment by extending the suppression remedy of Weeks v. United States (2) to cases in the state courts as well. It was thus perhaps inevitable that the Fourth Amendment (in actuality "second to none in the Bill of Rights" (3)) should become my cheval de bataille. In the intervening years--almost a half century now--my main preoccupation (or, some would doubtless say, my obsession) has been with that Amendment, and thus, I have had occasion during that time to study and reflect upon what must be hundreds of Supreme Court decisions having to do with search and seizure. (4) Many of those decisions were, in my judgment, right on the mark, while others seemed to me only slightly off target. There is a third group of cases that, suffice it to say, I could not bring myself to describe so generously, and then, of course, yet another group that I would characterize as flat-out wrong.

   And then came a case styled Herring v. United States, (5) a 5-4 decision handed down just this past January, which, I am chagrined to say, appears to deserve a category of its own, and not on the positive side of the scale. Herring, holding the Fourth Amendment exclusionary rule inapplicable whenever "the error was the result of isolated negligence attenuated from the arrest," (6) is not simply wrong; it is wrong over and over again! The opinion of the Chief Justice for the majority (1) falsely claims that cost-benefit balancing is an established basis for selectively applying the exclusionary rule at a criminal trial because of a police violation of the Fourth Amendment; (2) falsely represents that the Court's precedents support the proposition that the exclusionary rule may be selectively applied depending upon the degree of "culpability" attending the Fourth Amendment violation; (3) asserts as a foregone conclusion, without an iota of supporting analysis or evidence, the proposition that application of the exclusionary rule in the instance of a negligent violation of the Fourth Amendment has a reduced "deterrent effect"; (4) purports to cabin the holding by the apparent afterthought that the negligence must also be "attenuated," but without any explanation of what attenuation means in the instant or any other case, or why attenuation is relevant to the critical conclusion of reduced "deterrent effect"; and (5) inflicts upon trial and appellate courts new and uniquely difficult tasks to be performed in adjudicating Fourth Amendment claims. It is thus apparent that this Herring is no mere herring; it is surstromming, which (as any Swede can tell you) is touted as a "delicacy" but is actually attended by both a loathsome smell that "grows progressively stronger" and a dangerous capacity to "explode" beyond its existing boundaries. (7)

   In Herring, an investigator, apparently suspicious because the defendant "was no stranger to law enforcement" and was seeking "to retrieve something from his impounded truck," requested that a warrant check be run on him and was advised that the computer database in the sheriff's department of a neighboring county showed "an active arrest warrant for [his] failure to appear on a felony charge." (8) On the basis of that information, the investigator arrested the defendant and, in a search incident to the arrest, found drugs and a pistol on his person, ultimately leading to federal prosecution. It was subsequently determined that the computer record was in error and that, actually, the warrant had been recalled five months earlier. The court of appeals assumed that whoever failed to update the sheriff's records "was also a law enforcement official," (9) but nonetheless affirmed the district court's denial of defendant's motion to suppress because "the conduct in question [wa]s a negligent failure to act, not a deliberate or tactical choice to act." (10) The Supreme Court, in a 5-4 decision, while "accept[ing] the parties' assumption that there was a Fourth Amendment violation" (11) in arresting the defendant on a nonexistent warrant, concluded that the exclusionary rule was not applicable in a case such as this, namely, where "the error was the result of isolated negligence attenuated from the arrest." (12) The Herring majority reached this conclusion by application of the seemingly broader proposition that "[t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." (13)

   The holding in Herring finds little support in the Chief Justice's opinion for the majority, which perhaps accurately reflects his apparent longstanding opposition to the exclusionary rule, (14) but is totally unconvincing and in many respects irrelevant and disingenuous. The Herring majority gets off to a bad start by hanging its collective hat on Justice Scalia's bald assertion in Hudson v. Michigan that suppression "has always been our last resort, not our first impulse," (15) a declaration which, as two thoughtful scholars have recently documented, "defies historical truth." (16) Next, the Herring majority describes the Fourth Amendment exclusionary rule solely in terms of its deterrence function, rather than as encompassing the other two purposes recognized in earlier decisions of the Supreme Court, (17) which at least can be said to be unremarkable (18) in light of the Court's tendency for some years now to view the suppression sanction with an equally narrow focus.

2. COST-BENEFIT BALANCING

   Following this comes the announcement of the general principle, without any stated restriction or limitation, that "the benefits of deterrence must outweigh the costs." (19) Put in such bold terms, it is made to appear that this cost-benefit balancing process is a routine part of the assessment as to when the Fourth Amendment exclusionary rule should be applied, but nothing could be further from the truth. This is manifested in the cases that the Herring Court primarily relies upon in its further discussion of this balancing concept: United States v. Leon, (20) Illinois v. Krull, (21) Arizona v. Evans, (22) United States v. Calandra, (23) Stone v. Powell, (24) and Pennsylvania Board of Probation and Parole v. Scott. (25) The latter three decisions, as well as several other Supreme Court cases of like kind, (26) all represent instances in which the Court had concluded that application of the exclusionary rule at the criminal trial itself suffices to provide the necessary deterrence, so that additional suppression at certain other proceedings (for example, before the grand jury, on habeas corpus, and at a parole revocation hearing, as in Calandra, Stone, and Scott, respectively), in the interest of still more deterrence, is not worth the candle. Thus, those cases are clearly distinguishable from the action taken in Herring.

   The same is true of the first three cases in the above listing. The two "good faith" cases, Leon and Krull, represent instances where cost-benefit balancing was deemed appropriate because of another kind of special circumstance: the person primarily responsible for the Fourth Amendment violation was not a law enforcement official but rather a judge (in Leon) and legislators (in Krull), a very significant fact deemed to change the dynamics of the deterrence analysis. The same is true of Evans, which deserves special attention here because the nature of the Fourth Amendment violation was identical to that in Herring except for the fact that the offending clerk was in the employ of the judiciary. As acknowledged by the Herring majority, Evans decided that exclusion in the interest of deterrence was not called for in such circumstances "for three reasons" (27): (i) the exclusionary rule was crafted to curb police rather than judicial misconduct; (ii) court employees were unlikely to try to subvert the Fourth Amendment; and (iii) there was no reason to believe that application of the exclusionary rule in such a case would have a significant effect in deterring errors by court employees.

   Obviously, none of these reasons is present in Herring, where the misconduct was by a law enforcement official. Yet the Court would have us believe that Herring matches up with these decisions, especially Leon, by offering the non sequitur that if under Leon it is not necessary to suppress "evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant," then the "same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant." (28) Not so, as these are apples and oranges.

   Thus, on the preliminary question of whether Herring is the kind of case in which some sort of cost-benefit balancing process might be appropriately pursued, the many precedents cited by the Court do not support any such undertaking. Rather, of the Court's prior decisions, the precedent for pursuing such an inquiry even as to exclusion at a criminal trial for a Fourth Amendment violation by police is reduced to a list of one: Hudson v. Michigan, (29) where the Court's cost-benefit balancing was not even essential to the decision given the Court's added reliance upon the fruit-of-the-poisonous tree doctrine. But even if we pass by all of this and simply concentrate upon how the balancing act was performed in Herring, the Court's decision still does not pass muster.

   On the cost side of the equation, the Herring majority makes no claim that the cost of exclusion in this particular case would be especially high, and rightly so, as any claim otherwise would invoke the discredited "comparative reprehensibility" (30) approach to the exclusionary rule. The...