To Exclude or Not to Exclude:the Future of the Exclusionaryrule After Herringv. United States

• Publication year: 2022

43 Creighton L. Rev. 175. TO EXCLUDE OR NOT TO EXCLUDE:THE FUTURE OF THE EXCLUSIONARYRULE AFTER HERRINGV. UNITED STATES

TO EXCLUDE OR NOT TO EXCLUDE:THE FUTURE OF THE EXCLUSIONARYRULE AFTER HERRINGV. UNITED STATES

MATTHEW ALLAN JOSEPHSON(fn*)

TABLE OF CONTENTS

I. INTRODUCTION ................................... 176

II. THE "GOOD-FAITH" EXCEPTION TO THE

FOURTH AMENDMENT EXCLUSIONARY RULE

PRE-HERRING ..................................... 179

A. The Origin and Justifications of the Fourth Amendment Exclusionary Rule: A Public Not a Private Right ................................... 179

B. The "Good-Faith Exception" to the Fourth Amendment Exclusionary Rule Pre-Herring ...... 181

1. United States v. Leon ........................ 181

2. Massachusetts v. Sheppard ................... 182

3. Illinois v. Krull .............................. 183

4. Arizona v. Evans ............................ 184

III. THE NEW FOURTH AMENDMENT EXCLUSIONARY RULE: HERRING V. UNITED STATES ............................................ 185

A. Factual and Procedural Background ............. 185

B. Majority Opinion ................................ 187

C. Dissenting Opinions ............................. 190

IV. THE "GOOD-FAITH" EXCEPTION TO THE FOURTH AMENDMENT EXCLUSIONARY RULE

POST-HERRING ................................... 193

A. Herring 's Limitations ............................ 193

1. Negligence Attenuated from the Arrest ....... 193

2. Fact-Specific Nature of the Holding .......... 195

3. States May Provide More Protection Against Unreasonable Searches and

Seizures than the Federal Constitution ....... 197

B. Herring 's Potential Breadth ..................... 198

C. Herring 's Complications ......................... 198

1. Is the Exclusionary Rule "Result-Oriented?" . . 198

2. The Blurring of Rights and Remedies: Will Every Novel Fourth Amendment Question Preclude the Application of the

Exclusionary Rule? .......................... 201

V. CONCLUSION ..................................... 202

I. INTRODUCTION

In Herring v. United States ,(fn1) the Supreme Court of the United States issued what could be a landmark criminal procedure opinion that will reshape the meaning of the Fourth Amendment exclusionary rule.(fn2) In Herring, the Court directly addressed whether the Fourth Amendment exclusionary rule applies when law enforcement personnel negligently provide erroneous information that eventually leads to an unlawful arrest.(fn3) In a 5-4 opinion, the Court ruled in the negative, concluding that when police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.(fn4) While arguably a narrow decision, the far-reaching logic of the Herring opinion is hard to ignore. Accordingly, the decision in Herring has already sparked controversy amongst commentators,(fn5) journalists,(fn6) and courts,(fn7) with some declaring Herring a landmark case and others dismissing the case as a blip on the constitutional radar.

The Herring decision could transform the exclusionary rule by making the exclusion of evidence the exception rather than the rule when police violate the Fourth Amendment. Although Herring directly concerned police recordkeeping errors, the Court's reasoning appears much broader. The Court generally established that officers' negligent errors do not trigger the exclusionary rule: "As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence."(fn8) In other words, the Herring decision arguably could apply to all police conduct, not simply recordkeeping errors made in the context of procuring a warrant.

At the same time, the Herring decision could be interpreted narrowly. On its facts, the Herring decision simply extended the Court's prior ruling that recordkeeping errors by judicial clerks do not trigger the exclusionary rule to errors made by police clerks.(fn9) Also, this decision directly deals with police negligence "attenuated from the arrest," which potentially cabins the Herring opinion to negligent errors disconnected in time and person from the arrest.(fn10) Finally, the Court emphasized, to some degree, the specific facts of the case when reaching its holding that negligent police conduct is not enough to trigger the exclusionary rule, an emphasis suggesting the case may be limited to the recordkeeping context.(fn11)

The Herring decision came on the heels of the Court's 2006 decision in Hudson v. Michigan ,(fn12) which held that a violation of the Fourth Amendment requirement that officers knock, announce their presence, and wait a reasonable amount of time before entering a private residence (the "knock-and-announce requirement") does not require suppression of the evidence obtained in the ensuing search.(fn13) The majority opinion in Hudson , authored by Justice Scalia, broadly criticized the exclusionary rule in general,(fn14) suggesting that the exclusionary rule may be eliminated altogether in the future.(fn15) In fact, Justice Kennedy authored a concurring opinion to assure that "the continued operation of the exclusionary rule, as settled and defined by [the Court's] precedents, is not in doubt."(fn16) The Court's decision in Herring , authored only two years after Hudson , has cast doubt again on the future vitality of the exclusionary rule.

In Herring, the Court's decision directly raised the issue of what the consequence should be when police violate the commands of the Fourth Amendment.(fn17) As Chief Justice Roberts pointed out during oral arguments of the case, police have limited resources in the area of police recordkeeping and "probably don't have the latest version of WordPerfect, or whatever it is."(fn18) Thus, the exclusion of highly probative evidence of guilt seems like an extreme sanction for technological error. On the other hand, as Stanford Law School Professor Pamela S. Karlan, who represented Herring, responded, "there's not a Barney Fife defense to the violation of the Fourth Amendment either."(fn19)Thus, when evidence is excluded based on technological error, the police will do a better job of making sure such errors will not occur in the future.

The question after the Herring decision is not whether a "Barney Fife defense" exists but rather when the defense can be raised and what the contours of that defense are when the prosecution raises it. This Article addresses those issues and proceeds in five parts. In Part II, this Article outlines the "good-faith" exception to the Fourth Amendment exclusionary rule prior to the Herring decision. In Part III, this Article discusses the Herring decision in detail. In Part IV, this Article discusses the future of the Fourth Amendment exclusionary rule post-Herring , exploring the decision's limitations and potential breadth. In Part IV, this Article also addresses two particular complications courts will face in applying Herring to future cases, namely what courts should focus on in applying the Court's cost-benefit formulation of the exclusionary rule and how novel Fourth Amendment issues could pose particular problems in applying the exclusionary rule. Finally, in Part V, this Article summarizes the Herring decision's projected influence on the future of the exclusionary rule.

II. THE "GOOD-FAITH" EXCEPTION TO THE FOURTH AMENDMENT EXCLUSIONARY RULE PRE-HERRING

A. The Origin and Justifications of the Fourth Amendment Exclusionary Rule: A Public Not a Private Right

The Fourth Amendment, by its terms, does not require the exclusion of evidence when police violate the amendment.(fn20) Nonetheless, the United States Supreme Court mandated the exclusionary rule for federal trials in Weeks v. United States (fn21) in 1914 and applied the rule to the states in Mapp v. Ohio (fn22) in 1961. Thus, the Fourth Amendment exclusionary rule,(fn23) generally stated, excludes evidence from criminal trials when that evidence is obtained as a direct result of police conducting an illegal search or seizure in violation of the Fourth Amendment.(fn24)

The justifications underlying the exclusionary rule have changed over the years.(fn25) Originally, the Court justified the exclusionary rule in two primary ways.(fn26) In Terry v. Ohio ,(fn27) the Court recognized that the exclusionary rule's "major thrust is a deterrent one," and serves as "a principal mode of discouraging lawless police conduct."(fn28) In addition to deterrence, the Court also described "another vital function" of the exclusionary rule, namely, "the imperative of judicial integrity."(fn29)As Justice Burger described the judicial integrity justification, "[a] ruling admitting evidence in a criminal trial ... has the necessary effect of legitimizing the conduct which produced the evidence, while an application of the exclusionary rule withholds the constitutional imprimatur."(fn30) Thus, the exclusionary rule originally served the dual role of deterring police misconduct and maintaining the criminal justice system's integrity. The deterrence value of suppressing evidence procured as a result of illegal police conduct, while important, was not the only justification.

Over the next several decades, however, the...