Herring v. United States, and "Who Are The Police"?
The petitioner's merits brief was recently filed in Herring v. United States, a really interesting Fourth Amendment case out of the Eleventh Circuit that will be argued before the Supreme Court in the fall. I wanted to offer some preliminary thoughts on the case.
First, the facts. Coffee County police investigator Anderson observed a man named Herring, and developed reason to think that there was a warrant out for Herring's arrest. Anderson quickly called the Coffee County warrant clerk to see if there were any arrest warrants sworn out for Herring. The warrant clerk checked the county database but found no warrants. Anderson then asked the warrant clerk to contact the warrant clerk in nearby Dale County to see if there were any warrants in that county for Herring's arrest. The Dale County warrant clerk reported back to the Coffee County clerk's office that there was in fact an active warrant in Dale County for Herring's arrest. The Dale County warrant clerk then relayed that information to Anderson.
The Dale County warrant clerk then looked through the county files for the actual warrant. When she couldn't find it, she called the clerk's office and learned that there had been a snafu: The warrant had existed but had been recalled, even though it had not yet been noted in the Dale County database. The Dale County warrant clerk called the Coffee County warrant clerk immediately to tell her that there had been a mistake; there actually was no warrant. Although only 10-15 minutes had passed since their earlier call, the call came too late. Anderson had already pulled over Herring and arrested him based on the belief that a warrant existed. A search incident to arrest revealed drugs and a gun, leading to criminal charges. In this case, Herring wants the drugs and gun suppressed as violations of the Fourth Amendment.
Ok, on to the legal issues. At the heart of Herring is the question, "who are the police?" When the Supreme Court refers to terms like "probable cause" and the need for the exclusionary rule to "deter the police," is the relevant actor the single individual who actually conducts the search or seizure or the entity of police as a whole? And if you look at the entity as a whole, does that mean all the police in the county, the state, or maybe all of the police who were involved in the case? In one case, the police is a person; in the other, it's an entity.
Why is this the heart of Herring? Under the Fourth Amendment, an arrest is justified if the police have probable cause to believe that a crime was committed and that the suspect committed it; also, reasonable reliance by the police on authority to conduct a search or seizure that later turns out to be false generally leads to admission of evidence. Under these standards, if you construe "the police" to mean the actual person who conducted the search or seizure then Herring should easily lose. On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.
First, the facts. Coffee County police investigator Anderson observed a man named Herring, and developed reason to think that there was a warrant out for Herring's arrest. Anderson quickly called the Coffee County warrant clerk to see if there were any arrest warrants sworn out for Herring. The warrant clerk checked the county database but found no warrants. Anderson then asked the warrant clerk to contact the warrant clerk in nearby Dale County to see if there were any warrants in that county for Herring's arrest. The Dale County warrant clerk reported back to the Coffee County clerk's office that there was in fact an active warrant in Dale County for Herring's arrest. The Dale County warrant clerk then relayed that information to Anderson.
The Dale County warrant clerk then looked through the county files for the actual warrant. When she couldn't find it, she called the clerk's office and learned that there had been a snafu: The warrant had existed but had been recalled, even though it had not yet been noted in the Dale County database. The Dale County warrant clerk called the Coffee County warrant clerk immediately to tell her that there had been a mistake; there actually was no warrant. Although only 10-15 minutes had passed since their earlier call, the call came too late. Anderson had already pulled over Herring and arrested him based on the belief that a warrant existed. A search incident to arrest revealed drugs and a gun, leading to criminal charges. In this case, Herring wants the drugs and gun suppressed as violations of the Fourth Amendment.
Ok, on to the legal issues. At the heart of Herring is the question, "who are the police?" When the Supreme Court refers to terms like "probable cause" and the need for the exclusionary rule to "deter the police," is the relevant actor the single individual who actually conducts the search or seizure or the entity of police as a whole? And if you look at the entity as a whole, does that mean all the police in the county, the state, or maybe all of the police who were involved in the case? In one case, the police is a person; in the other, it's an entity.
Why is this the heart of Herring? Under the Fourth Amendment, an arrest is justified if the police have probable cause to believe that a crime was committed and that the suspect committed it; also, reasonable reliance by the police on authority to conduct a search or seizure that later turns out to be false generally leads to admission of evidence. Under these standards, if you construe "the police" to mean the actual person who conducted the search or seizure then Herring should easily lose. On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.
Related Posts (on one page):
- Assuming Violations of the Fourth Amendment and Then Deciding the Scope of the Exclusionary Rule:
- Responding to Tom Goldstein on Herring:
- Supreme Court Hands Down Herring v. United States:
- Oral Argument in Herring v. United States:
- ACS Supreme Court Preview:
- Herring v. United States, and "Who Are The Police"?
I recall reading the animus claim in a post a while back at Scotusblog, but as far as I recall, I haven't seen it elsewhere. Is it in the record or in the briefs?
fwiw, my agency's policy and standard practice is to generally make the physical arrest based on report that there is warrant, PRIOR to confirming it. That has, at least until now, withstood scrutiny.
However, prior to actually transporting the warrant subject, we must confirm the warrant "in hand."
It usually takes between 3-15 minutes to confirm a warrant in hand.
I'd say maybe 1/20 or less of computer reports of a warrant result in the warrant later NOT being confirmed in hand.
iow, about 95%+ of the time, there is a warrant (computer hit), the warrant is later confirmed as valid.
I would also say that 95% is well beyond PROBABLE CAUSE.
And Dave D. is correct that it is certainly good faith to arrest based on the warrant "hit", then confirm once you have the subject in custody, prior to transport.
I am sure some would argue that even if the physical arrest is justified for the computer hit, that a physical confirmation should be required prior to the search of his vehicle, etc. Certainly not, for the search of his person, since that needs to happen immediately upon handcuffing... you don't want to place the guy into the car before doing that search, even handcuffed.
I don't think the main issue here is "who is the police" as much as what is REASONABLE. That is the primary issue in 4th amendment cases.
On a similar note, I once arrested a guy for not having a license. I ran his name, dispatch said no license, i confirmed with him that he had no license in any other state (he repeatedly claimed he had a Mass. license (i was a Mass. cop at the time), and then reconfirmed with dispatch as to his name, dob etc. and they still said no license data. About 5 minutes after I placed him in cuffs (and prior to transport) , dispatch said OOOPS! we screwed up! and that he DID in fact have a valid license. I promptly unarrested him :)
If, in that case, i found drugs on his search incident, I could see the argument that they should have been suppressed, but i also see the argument they should have - since the exclusionary rule is primarily meant to suppress based on the officer's malfeasance or carelessness, neither of which was present here :)
Needless to say, I got a copy of my transmissions (audiotape ) to cover my butt. He didn't sue, but I was gonna cover my butt either way.
At some point, We the People decided that We the People are a bigger threat to our own freedom than the government. We’ve been ceding power away to the police ever since the incipiency of police departments. Given that, I see no reason why the line against granting the police near limitless power over our lives should be drawn here.
no. he BELIEVED it based on what dispatch told him. Good faith does NOT mean you don't necessarily WANT to do what you did (in this case arrest), it means your decision process is based on legitimate belief, which was clearly the case here.
assume he HATED the guy and really really wanted to arrest him. that's irrelevant as to good faith, because he was clearly relying on a credible source (Dispatch) for his information, one that is statistically extremely reliable. he didn't fabricate anything, or operate with a reasonable belief that his info was bad. quite the contrary.
Very interesting -- thanks for the context. I'm curious, when you arrest on a warrant, how often do you find contraband after a search incident to arrest? Is it common or uncommon?
Does trust the police mean trust them not to act willfully, or does that mean trust them not to act negligently?
And what should the Justices do if they all trust the police somewhat but not entirely? Should they suppress half the evidence -- maybe the gun but not the drugs?
But doesn't the law do that already? If I remember my crim pro correctly there's a "collective knowledge" doctrine that says if one officer has PC to arrest they all do, regardless of what the officer who effects the arrest knows?
...Professor, more common was arresting a fella for a warrant in his name, but wrongly issued based on fraudulent I.D. of a suspect. Or no I.D., just pick-a-name and I'll cite you. Peoples brothers, neighbors and enemies do that more often than you may think. CVC 40302 (a) requires the suspect to show a " drivers license or other satisfactory evidence of identification " but time is short and calls for service are many. This thread is about a guy who had a warrant, but it had been recalled. A much more serious violation of rights occurs when a warrant is wrongly issued and served. I never saw any tracking on this, but it's far from uncommon in California.
I won't speak to what the law is; I'm sure that you have a better understanding of that than I do. I will speak to what I think the law ought to be:
If you set up a situation where ignorance is rewarded, you'll get more ignorance. That is, if you set up an incentive to not be diligent, you'll get less diligence (at the margins, anyway).
Using your proposed rule, there would be a significant incentive for "the police" (broadly construed) to ensure that "the police" (narrowly construed) knew enough to have probable cause or reasonable reliance (whichever might apply) without regard to what a reasonable person in possession of all the available information might believe: "If only I had had all the information, your Honor, I would never have arrested the guy. But what can you do?"
I would think we want diligence in ensuring basic constitutional rights, which would make such an incentive perverse. As I see it, then, there should be a cost, not a benefit, associated with insufficient diligence.
(This is reinforced by my belief that the cost to the officer involved in such a situation is effectively zero under either regime. The officer is normally just trying to follow the rules; why should it be a problem to him if the rules don't allow him to conduct a search?)
I think that the more reasonable long-term regime is to require the organization as a whole to be responsible for the actions of its members collectively.
The case here is complicated, of course, by the fact that different organizations were involved, but I think the same perverse incentives analysis applies. (If there weren't a long history of police extending "professional courtesy" to police without regard to department membership, this analysis might be different. That tradition extends the practical group membership beyond the notional group membership, to my mind.)
The real issue, completely left out of the 11th Circuit's decision and petitioner's merits brief, is the broad scope of the search incident to arrest that applies to arrests made out of automobiles.
That animus existed between Herring and the arresting officer is clear from the petitioner's statement of facts. The officer was clearly out to get this guy. My personal hunch is that the arresting officer had an idea that Herring had drugs and/or a weapon on his person or in his car; he just didn't have enough evidence to get a warrant. Knowing that arresting someone in their car permits a search of the entire passenger compartment, he called in to see if there were any existing warrants out for the guy. Bingo, he gets to search.
The drugs were found on Herring's person--they're going to be admitted. The gun, however, was in the vehicle. It should be inadmissible.
Funny, it seems to me that the case described here indicates just such an incentive: Limitless powers of arrest and search.
There has to be some real penalty for a bad database. If not exclusion then what?
I don't understand. If the rule is that you can only arrest if the database says there is a warrant out for someone's arrest, why is that "limitless"? Is your concern that someone will create an arrest warrant database and enter in the names of everyone in the United States?
In terms of penalty, my sense is that a civil suit would work better: Sue the government that had the bad database for causing the unlawful arrest. Better yet, find the folks who are arrested and have no drugs on them; they're the perfect plaintiffs for a 1983 action, I would think. The financial penalties will then make it economically desirable to run a better database.
It seems to me that the exclusionary rule is a check on the system as a whole, and that in order to provide an incentive for that system to correct its own flaws, it has to penalize even non-malicious errors lest the system come to silently encourage error-making.
A query: if we were to imagine that the police in this case were a private company that had caused some loss from roughly the same series of events (database error corrected quickly, but after action was taken on the mistake) would we find that company to have been negligent?
We instruct officers not to rely solely on the databases (VCIN and NCIC in our case) for this very reason. More than once in my experience a subject has been arrested twice on the same warrant within a few hours of his release because the agency issuing the warrant had not cleared it from the database in a timely manner. IANAL and can't speak to suppression, but this sounds to me like a lawsuit waiting to happen.
But I think it's a different case when you take a broader collective view of "the police." The clerk in Dale County who erred by not taking the Herring name out of the database probably doesn't care if Coffee County officer Anderson gets a case tossed out. It's not the clerk's case, and he presumably doesn't know Anderson -- heck, it's over in another county. In my (still somewhat tentative) view, it makes more sense to sue Dale County for Dale County's error than to suppress Coffee County's case for an error made in Dale County.
Does Paul Clement's impending resignation have any effect on a certain GWU professor that we should know about?
...You built the system on massive B.S., the exclusionary rule and Miranda. Until you go back and fix these flaws, the system will creak and stumble. Cops didn't build it, lawyers did.
I have to disagree with you slightly, and expand on something Mr. Sundseth said above. I think that good faith should apply in this case. But only because I don't think you parse the question (or rather the potential answers) finely enough. The happy medium between calling all police officers everywhere "the police" and calling only those officer at the scene "the police" is to include the entire agency of those officers at the scene. Better yet, that policy would square with the incentive/disincentive scheme we want to set up. Agencies would be encouraged themselves to keep their databases up to date because of lawsuits or evidence that winds up dismissing a case. However, a particular agency has no power over the next door county (whether to encourage them to not update to "get" disfavored people, or to update) so the mistake of the county next door shouldn't hurt them. Will it be messy at times, especially if more than one agency responds to a call...yes, does it provide more incentive to update than looking solely looking at the officers on the scene as police...yes.
I am curious though why you say that;
I've always felt that the people who feel the brunt are the DA'a and prosecutors in the case of suppression and dismissal, and the politicians in the case of extensive media publicity or a lawsuit. Unfortunately the exclusionary rule operates on the assumption that those sets of people (who generally have a lot of power over the police agency if not individual police officers) will make their displeasure felt. I would be interested in hearing from some of the officers on this.
Suing the officer or department seem a poor substitute- the pressures that an officer is subject to are difficult to understand, and a decision made in one second should not be the subject of endless second-guessing in the safe environment of a court.
But, officers do misbehave- if they didn't, they would not be human (and I prefer law enforcement to be a human activity, thank you).
So, how do we design an error-reducing system? Perhaps we can start by reducing the stakes. I'ts easier to admit eror or misgudgement if you do not fear the results of said admission- sort of like the confidential information gathered by accident investigators in the military, which cannot be used to discipline or punish.
Any thoughts?
Thanks for the response, and I see your point about the incentives of the clerk in the neighboring county. But it is unclear to me that the problem to the system that originates with an out-of-county filing clerk has to have a remedy targeted to that same filing clerk. If it does, then certainly the civil suit is more effective than evidence suppression.
But perhaps the best remedy is not one directed at the filing clerk. Perhaps it is the one suggested by several commenters who worked as police: that the arresting officer compensates for the deficiencies in the system as it has worked up to his or her point by proceeding with extra caution and not carrying out all parts of the arrest until confirmation of the warrant.
If the goal is to ensure that reasonable care is taken to ensure that the arrest and search are lawful, then compensating for human fallibility at one point seems just as valid as at the other. We've been told how to compensate for that error at the level of the arresting officer, but I am not sure what effective measure there would be to prevent error at the level of the filing clerk.
In any case, the locution "the police" seems so naturally to suggest the institution rather than the individuals on scene that if the latter is meant, perhaps a new term of art is in order.
Also, I don't buy the good faith argument. I have no problem on good faith reliance on an extant but flawed warrant but in this case there simply isn't a warrant on which to have faith. Instead, you are asking the court to accept his good faith reliance on a non-existent warrant (or, if you prefer, good faith reliance on indica that the warrant actually existed). This is entirely outside the bounds of the good faith exception AFAICT.
Furthermore, while Whit's explanation usually convince me, they fall entirely flat here. I have no problem with detention based on a computer hit, since there is clearly probable cause to hold him up 10-15 minutes while you check things out. Arrest based on a computer hit, OTOH, seems entirely unreasonable. Of course, the latter is preferable to the LEOs because it gives him broad search powers . . .
Suppose a statistical analysis shows that there is a .1% chance that a mistake will be made and a warrant will be mistakenly found where there is none. This would still be a "credible source", right? Now what if a policeman keeps calling more and more jurisdictions until he finds some "credible source" that makes this mistake. How many calls are still indicative of research in good faith? After all, just because three jurisdictions find no warrant doesn't mean the fourth won't find one.
He got lucky and found an erroneous warrant on his second try. If he had found one on the twelfth try, you wouldn't be claiming good faith. IMO, no particular number of checks is necessary to demonstrate bad faith -- one for the wrong reason is enough.
I'm not saying I know that in this case the police acted in bad faith. I'm saying that from the facts I know, it seems likely that the officer kept pushing until he got the "right" answer. If someone had said there "might be a warrant", he would have hung up and searched based on that.
I am on the fence about this issue, but I do not think that there is much hope for a civil suit where the exclusionary rule does not apply. On the civil side, officers have qualified immunity, which generally means that where an officer reasonably believes that there is probable cause (in this case a warrant)for an arrest, there is no civil liability--certainly not for the officer.
I suppose there could be a suit based on a municipality's practice of relying on an unreliable data base, but how many erroneous entries would there need to be before the practice would be constitutionally unreasonable? Ultimately then, persons arrested by mistake have no recourse, and there is little incentive to maintain a high degree of accuracy in such databases.
Isn't there a "corporate knowledge" doctrine in Fourth Amendment law whereby all of the officers knowledge is imputed to each individual officer; so that even if a single officer didn't know of PC to make the arrest, the knowledge of other officers is enough to establish PC.
Am I confusing something there?
I see the concern, although a database with outdated information wouldn't have information in it about the latest arrest warrants, though, right? I would think the police would rather have an updated and accurate database than an inaccurate and outdated one.
I don't think so; if there is such a doctrine, I haven't run across it (or at least don't remember it). Although if anyone knows of cases that discuss this, please let us know.
Why not? As long as you are careful to add new ones, but careless about deleting ones that are invalid you get the desired result.
I would think the police would rather have an updated and accurate database than an inaccurate and outdated one.
Maybe they want one with as many warrants as possible, good or bad, in it.
Maybe, but why? Is the theory that police are so eager to conduct searches incident to arrest that they want to arrest people on fake warrants just to get the fruits? I suppose that's the theory, but if it were true, why don't we see lots of Atwater v. Lago Vista arrests? To me, it makes more sense to arrest on a legit but minor offense than an incorrect report of an arrest warrant.
In my experience, as soon as you refuse consent to search your vehicle the police become very eager to do just that. That's not illogical, I suppose, but it still angers me that you pay such a huge cost for exercising your rights. I once had virtually the entire County Sheriff show up just because I had the gall to refuse -- from the Deputy's reaction, I don't think anyone had ever refused him before, every. Thankfully, it was civil-infraction traffic law state, so despite being treated to an impromptu introduction to the whole department, all I got was a speeding ticket.
Somehow, I doubt that most judges and lawyers ever experience the truly amazing browbeating you get from a police officer when you attempt to refuse consent. That's really all.
..I never had any mention of the outcome of any case, or evidence exclusion, or case outcome in any evaluation of me in 32 years. As a supervisor I never read any monthly or yearly evaluation comments referring to good or bad searches or evidence. And I read thousands of those evaluations. It just wasn't considered or commented on. ...After you book a suspect, you usually, in 90%- 95% of the cases, never hear anything about it again. Most cases are dealt. And if you do go to a motion to suppress, you testify and leave. Then it's dealt.
...When you do hear that evidence you seized was suppressed, or let in, those decisions follow no discernable pattern. I've had statements admitted and suppressed when I advised Miranda and when I didn't. I've had evidence admitted in one case and not in another where the facts were essentially identical. The capriciousness of the application of the rules of evidence is ...mindboggling. With the same facts presented here, learned lawyers and Prof's come to opposite and strongly held conclusions on every discussion about evidence admissability.
..Because of this, most cops I know just don't consider the way a case ends to be much of their responsibility since almost all of it is not in there control. Several commenters here have talked about the exclusionary rules effect on the Dale County record system. I can assure you that the Dale Co. clerk, had Scotus not taken the case, would never hear about the outcome. Nor would her boss. And they certainly aren't going to change their system even if they did know. It's not their problem. It never will be.
..California, before I retired, authorized police 'court officers' to stand in for the arresting officer at preliminary hearings and testify from the report that the arresting officer wrote. I know, seems crazy, it does to me too. But it's done now. Saves a ton of overtime.
Man, I can't be getting that old. And I'm not even a law firm partner, so I'm not allowed such false memories.
In the case I was thinking of (and that I'm looking for) one officer went into to execute a search. He did not have knowledge that probable cause existed for the search. Another detective did have such knowledge, even though he did not pass on that to the searching officer. The (I think) Fifth Circuit Court of Appeals held that in making probable cause determinations, the total knowledge known by everyone on the force must be taken into consideration.
If a noted Fourth Amendment scholar hasn't heard of this, chances are I'm hallucinating. But if anyone has heard of it, please help a guy out.
http://www.altlaw.org/v1/cases/878755#fn2
'Probable cause is to be evaluated by the courts on the basis of the collective information of the police rather than that of only the officer who performs the act of arresting. * * * The knowledge or information of the arresting officer at the time of arrest is relevant only where an arrest is predicated on that officer's personal observations and information concerning the criminal act. The correct test is whether a warrant if sought could have been obtained by law enforcement agency application which disclosed its corporate information, not whether any one particular officer could have obtained it on what information he individually possessed.' Smith v. United States, 123 U.S.App.D.C. 202, 358 F.2d 833, 835 (1966), cert. denied 386 U.S. 1008, 87 S.Ct. 1350, 18 L.Ed.2d 448 (1967)
Not about a warrant but it certainly adopts a "collective knowledge" standard.
Shouldn't this apply both ways? That is, if someone knows there is no probable cause, there there is no, in fact, probable cause?
So Orin, what's it going to be? Collective knowledge or arresting officer?
1. Orin says
These situations are probably not a real concern under current good faith doctrine-or common sense.
First, as United State v. Leon, 468 U.S. 897 (1984), the case which established the good faith doctrine, hinted, intentional lies used to trick a magistrate into issuing a warrant which is then executed in good faith would not be recognized in the future as a good faith exception. The Court warned:
United State v. Leon, 468 U.S. 897, 898-99 (1984). Why then, would lies told to another police officer that a warrant existed when it did not, or lies about probable cause for arrest (so that a fellow officer will search incident to that arrest, generate a good faith exception?
Second, it seems to me unclear that the good faith exception to the exclusionary rule, has ever applied when it comes to warrantless searches . The good faith exception deals with good faith reliance on a facially valid, but actually invalid, warrant. Leon, 468 U.S. 897, 897.
In Leon, the Court explained that good faith errors in warrant cases (where the error is based on reasonable reliance on external authority)-the deterrent effect on the police that applying of the exclusionary rule would have is little-because the police were already acting reasonably, and the mistake was elsewhere. Penalizing the police would not help make judges issuing warrants more careful.
However, if the good faith is based on an internal mistake made in good faith by the police (that there were facts indicating lawful grounds for warrantless arrest-and therefore warrantless search,) then one can clearly see how applying the exclusionary rule would deter police-the sole party responsible for the mistake.
Indeed, though the issue of whether a good faith exception applies to warrentless searches has never directly been dealt with by the SCOTUS, at least one state high court and the first circuit, have ruled that the answer is no. United States. v. Curzi, 867 F.2d 36, 44 (1st Cir. 1989); People v. Aldridge, 674 P.2d 240, 240 (Cal.1984).
2. On the other hand, it's generally a bad argument that 1983 suits (which, as far as I know, have no good faith exception) are better quipped to protect against violations of the 4th/14th. The problem with this argument is that any particular wrongful search and seizure is not likely to generate enough damage for a civil suit. I'm pretty sure thats why we invented the rule in the first place.
The 4th amendment interest protects society as a whole from the worry of an unchecked police state. If police could stop you and search you at any time for any reason the aggregate effect on society would be enormous-but the effects would be of a diverse nature over time and place and affect many different individuals a little at a time. This would prevent (or at least deincentivise) civil suits by individuals or small groups from effectively making a civil case-since each case would probably be for a very small inconsequential amount making the case a waste of time and money for all parties.
Even in somewhat systemic cases such as this, where you might get a joinder or class action against the police by a group of plaintiffs who were arrested, not carrying anything illegal, and then subsequently released after the same bad computer system was revealed to have erroneously reported a warrant, its unlikely you will find that many individuals that had more than a few hours inconvenience
. However, if vou were to eliminate the exclusionary rule-police would not have to worry so long as their violations were never against the same person for a lot-and never against a group of people in a similar enough way to get a class certified (I.e Use different officers-arrest for different crimes-tell your officers to make decisions independently etc.. not hold people for more than a day or so in violation).
The result would be a society in which anybody could be searched and seized and inconvenienced at any time, (heck even strip searched) for any reason, as long as its only a little at a time-(and there would be lots of incentive to do so to catch bad guys) but there would be no real remedy to do anything about it.
I suppose I would be ok with eliminating the exclusionary rule if there was some extra statutory minimum amount you could get in a 1983 suit if you proved even $100 of damage. We do this for the RIAA in copyright suits when it complains that any suit against an individual college student wouldn't be worth it otherwise-so why not do it for everyone-and if it starts costing to much-then the government will know what to do!
3. Also on the other side, it may be true that applying a rule such as “it's the good faith of the executing officer only”-and the rest of the personnel doesn't matter-unless there is intentional lies or a warantless situation-makes us not have to, in the future, decide who else to include in the realm of 'the police.' However, maybe we should have thought of that when we thought up the good faith doctrine in the first place. What the heck is “objective good faith” anyway? Leon stresses that this is what you need. Leon, 468 U.S. 897, 920-921. But that was the case that opened the can of worms-and it cant be closed by adopting such a rule-theres still lots to litigate in the definition of good faith-and its for a good reason. If good faith isn't manageable-then maybe we should eliminate it.
Thanks for the cite. I read the 1966 DC Circuit case you cite, and the cases that it cites for authority (they're all Warren Burger opinions, interestingly). My tentative sense is that they are probably wrong under the Illinois v. Gates approach to probable cause adopted by the Supreme Court in 1983.
Based on a quick read, it seems that the DC Circuit case and all of the cases it cites deal with police officers who were ordered to make an arrest or who were told information by other cops that (if trusted) created probable cause to arrest the suspect. In those cases, the defendant argued that the officer lacked probable cause because he was not himself told of the basis for the cause. In the cases, then-Judge Burger held that it didn't matter that the arresting officer didn't know all the details himself. In some of the opinions, Burger says that the key thing was whether the officer had a reasonable belief based on what he was told. Then, in the one case you mention, Smith, Burger switches to the pretty different idea that there is a "collective knowledge" approach to probable cause.
That's a really interesting idea -- totally foreign to Supreme Court cases, as far as I know. I would need to hunt around more to know if there's more to it beyond Warren Burger opinions in the DC Circuit. But I wonder if, to the extent it was ever really the law, it was really just Burger's way around the then-new Aguilar/Spinelli test that the Supreme court later overruled in Illinois v. Gates. Under Aguilar/Spinelli, there couldn't be probable cause based on an informant's tip unless the police had detailed knowledge of the reliability of the informant. And in the cases where one officer got the tip and then told the other officer to make the arrest, the key thing missing was that the first officer didn't tell the second why he though the informant was reliable.
That is, the defendant's claim (as best I can tell at this hour) was always trying to invoke the Aguilar rule: the claim was that the arresting officer needed not only a reasonable basis to think the suspect had committed a crime, but hat he actually needed to know all the details about why the first officer thought there was a crime. Burger's bit about the collective judgment is a way around that potential implication of the awkward Aguilar/Spinelli test -- a test that the Supreme Court overruled in 1983 largely because of those awkward implications.
In any event, those are my preliminary thoughts. I would be interested to see if the collective judgement approach was applied in lower courts after Illinois v Gates. To be honest, I have never seen anything remotely like it before; I don't think I can recall a modern Fourth Amendment case that involved an argument like that.
Just to be clear, I agree the arrest is okay in the first case; it's an easy case of reasonable reliance. What I have never seen is the second case; there's language supporting it in the Smith case, but I haven't found a case that involved such facts where the doctrine was used.
Imagine for a second a small twist on your first scenario -- instead of arresting the right perp, officer B arrests the wrong person. Let's say it was an honest mistake, the guy matched the description perfectly. Is suppression warranted in this case?
Leon pointed out that if the mistake is with the magistrate-then exclusion does little to deter the already good faith acting police.
When the good faith error is a warrantless search or arrest-the first circuit and CA want to argue that the benifit/cost of exlcusion changes-since the only mistakes were in the police dept itself and exclusion could theorietically deter that.
Similarly-when the reliance is made by 1 officer on the word of a second officer that there is a warrant-(and there turn out not to be) then the question on whether to suppress may turn on whether exclusion would create any deterrence to the police in not negligently giving information they aren't sure of to other officers.
in this particular case-probably it would not have much of and effect-since the underlying reliance was on the court clerk-just like the underlying reliance of a facially valid warrant is on the court.
I'm almost certain I read some variation of the argument in a case from at least the last five years. For about three years I read every published Fourth Amendment case. (Law school was great.) And I came upon the issue reading a slip opinion. I think it was the Fifth Circuit; but my view on human memory is bleak.
I can't seem to find the opinion. Bummer.
i get it now.
but still- there is a difference between who is the police for probable cause and who is the police for the determination of good faith-no?
What if it wasn't the 2nd county checked for a warrant, but the 20th? 200th? Seems like if enough different court's records were checked, you could eventually get a "hit" based on a name somewhere, if the officer was merely looking for some semi-plausible rationale for making an arrest.
What happens if there is collusion between a clerk and LEO's? With no penalty for making the error, why wouldn't a clerk always back up the officer's "reasonable reliance" excuse? And isn't the better penalty application of the exclusionary rule, rather than making clerks or counties liable?
I have to say, while I've never done or seen any actual compilations of data on the point, all my professors in law school, and most of the student body, took it as a given that the police often act in bad faith to avoid the requirements of the 4th Amendment and/or the effect of the exclusionary rule. I do know that a lot of the fact patterns in 4th Amendment cases seem....shall we say, unlikely. Does anyone have any links to any actual studies of good faith or bad faith by police officers re: the 4th Amendment?
1) even the existence of government corruption is not a sufficient reason to Reverse the Circuit Court. I tend to think affirmance is the best result (or depending on the record and rulings below, some remand to determine whether Dale Cy., and the arresting police officer, acted reasonably and in good faith).
2) I would prefer to see a holding that does not occur based on the lines drew by Orin Kerr. A better holding would be that reasonable cause could be defeated by an unreasonable act along the chain upon which reasonable cause depends.
Let me explain.
There was a 9th Circuit case, 4th Amendment/28 USC 1983 (unpublished) a few years back, involving the city of Los Angeles. A car chase led cops into a building, where a helicoptor radioed down that they were looking for a hispanic man in a white shirt. They ended up arresting a white man in a grey shirt. One of the main reasons that the City argued probable cause was that he was hispanic-looking, in a light-grey shirt, and sweaty. He immediately claimed he was sweaty because he had just got back from the grocery store, and offered to show him his groceries and receipt.
Meanwhile, the cops ran a check on the car's plates. The car belonged to the tenant next door to the one arrested. They knocked on that guy's door but never followed up. The man arrested spent two weeks in jail, lost his job, and suffered major publicity.
The district court held that reasonable cause was found, and that Plaintiff's false imprisonment charge was waived by failure to plead (and denied amendment). The case got reversed on other grounds, but even if probable cause was satisfied, its hard to believe that the police's unreasonable actions given the OTHER information they knew.
Here, it seems like the Dale County office made a reasonable error. But what if they made an unreasonable one? Or what if they found out that it was a false warrant, but didn't bother to follow up, and he spent 3 days in jail in the other County awaiting transfer? At some point, the standard of probable cause needs to be based on the police acting, as a WHOLE, 1) reasonably, and 2) in good faith. A test like Orin's alternative, requiring the police to be in a hypothetical room with complete information sharing, is not neccesary - but reasonable information sharing, on the other hand, should be required.
...I want to change my vote at the big oak table. I would suppress the evidence and put Alabama and every other podunk place on notice that a warrant in the hand is the only condition that can get the bird in the bush. Opie needs to meet Microsoft.
Despite the animus that the officer may have had for the suspect (which is probably why he remembered that there had been a warrant outstanding), there HAD been an outstanding warrant and so the Officer certainly had probable cause to stop the suspect and detain him until the warrant could be confirmed.
Since there was probable cause for him to be detained, the seach of his person was also reasonable. Once the officer found what might be an illegal drug, then the search of the vehicle becomes reasonable.
I will look forward to seeing the decision when it comes out and reading the justice's reasoning.
At the very most, the police officer is entitled to a terry frisk for weapons. Generally speaking, a search for weapons does not include drugs and the courts will often suppress drugs found during a Terry frisk if its clear the officer was just fishing. See, e.g. United States v. Lee, 2007 U.S. Dist. LEXIS 82241.
While we cannot win this one here, those who made this interpretation and those who follow it shall face a much higher judge. I shall smile at their sentencing!
Respondent was arrested by Phoenix police during a routine traffic stop when a patrol car's computer indicated that there was an outstanding misdemeanor warrant for his arrest. A subsequent search of his car revealed a bag of marijuana, and he was charged with possession. Respondent moved to suppress the marijuana as the fruit of an unlawful arrest, since the misdemeanor warrant had been quashed before his arrest. The trial court granted the motion, but the Court of Appeals reversed on the ground that the exclusionary rule's purpose would not be served by excluding evidence obtained because of an error by employees not directly associated with the arresting officers or their police department. In reversing, the Arizona Supreme Court rejected the distinction between clerical errors committed by law enforcement personnel and similar mistakes by court employees and predicted that the exclusionary rule's application would serve to improve the efficiency of criminal justice system record keepers.
Point two in the syllabus reads:
Held: The exclusionary rule does not require suppression of evidence seized in violation of the Fourth Amendment where the erroneous information resulted from clerical errors of court employees.
Ultimately I think the post poses a false dichotomy. We don't have to choose between imagining the police in some collectivist terms and ask whether they (taken together) have some knowledge or merely evaluate the information available to the officer making the arrest. We can take the (imo obvious) middle ground of viewing the police as a collection of individuals and demand that every intermediate link in the chain that authorizes the arrest be a reasonable one. Of course this would have to be interpreted under some kind of inevitability doctrine as well so if a falsely entered piece of information triggered an arrest that otherwise would have been triggered by information entered by police acting reasonably it would still be valid.
Jim, the dispatcher are not "court employees" so Evans does not apply directly. The reasoning might logically extend to the instant case but that would be an extension of Evans, not merely a decision within it.
Truepath, you've dodged the question. Supposing we take your "intermediate link" test -- in the instant case, was it reasonable for the dispatcher to order an arrest based on an inaccurate computer system?
I would say you find contraband during a search incident maybe 1/10 of the time. More likely in a car with multiple people (for obvious reasons) and very dependant on the area you are working, the time of day, etc.
contraband can include anything illegal, including many things you give people warnings for, even though they are technically illegal.
you are making the assumption that not being able to confirm the warrant in hand means there necessarily ISN'T an actual physical warrant. it CAN mean that, or it can mean that the warrant is from a small agency and whomever is on duty at the time can't find it (think mayberry), or that there personnel are too tied up to do so (with 1 or 2 officer agencies, not entirely unlikely), or that the agency can confirm it but decides to no go on the extradition even thought they are not supposed to make the entry into the relevant database without stating where they will or won't extradite to.
and i used 5% to be generous. honestly, it's pretty frigging rare. that's why i said 95%+. i like to hedge :)
iow, their political bias resulted in them believing this.
" I do know that a lot of the fact patterns in 4th Amendment cases seem....shall we say, unlikely. Does anyone have any links to any actual studies of good faith or bad faith by police officers re: the 4th Amendment?"
they seem unlikely to NORMAL people because NORMAL people don't do the INCREDIBLY stupid things (well , not as frequently) that many "genius criminals do"
ANY cop who has worked the street for any period of time will witness the kind of stuff that it is REALLY hard to believe people would be that stupid.
example: i once arrested a guy for reckless after he raced another car at 90mph in a 35 zone. search incident, i found 1/2 ounce of cocaine, a couple of guns (he was a convicted felon, so it becomes a felony for the guns) and a very large amount of cash. why would ANYBODY race another car on a highly visible public street when they were carrying that much crap in their car? his answer: because the guy CHALLENGED ME !
example: i once got a guy on a felony stop for forgery(reasonable suspicion) and when he exited the car per my instructions and he dropped several thousand dollars in counterfeit bills.
example: i have had (on more than one occasion) people call to make a complaint (theft whatever) and when they approach me have had crack pipes or other obvious contraband (crack pipes are illegal contraband WHEN they have clearly visible drug residue) immediately visible when they walk up to me.
example: i had a guy rob a bank and when i asked the teller if she could identify him, she got me his SIGNATURE CARD since he was a customer.
iow, what seems unlikely to (no offense really) clueless civilians is quite likely when you have spent any time working around the criminal element, which most people have not.
academics are oft accused of being clueless ivory tower pontificators. usually (ime) when it comes to the "real world" they are. that's understandable.
in WA we don't have to be present.
Two questions. Professor Kerr posited that the exclusionary rule falls the most heavily on front-line officers. It seems to me (intuitively, I have no actual knowledge) that it falls most heavily on the DA's in the case of suppression/dismissal motions, and most heavily on the politicians in the case of massive negative publicity or lawsuits. I always assumed the exclusionary rule works on the principal that these people could and would make their displeasure felt to the police department if not to individual officers. (FWIW, I posted this basic question earlier in the thread, and Dave D has already weighed in).
My second question is off-topic. You were giving "stupid criminal" stories. You gave the following;
Am I missing something? How is this guy stupid? He has counterfeit money on him because, well, you have to have it on you to pass it around. He dropped it when he exited the car because, well, he was ordered to exit the car, and stashing something would have looked suspicious. I assume I am missing something about the facts here.
in regards to the second part, my point was when i ordered him from the car, he was still within the car. he didn't LEAVE the counterfeit bills in the car, he had them in his HAND when he exited. he didn't know whether i could have searched the car or not, and if he left it in the car, even if i could search, he might be able to claim somebody else left in there etc.
but he exited the car AFTER i approached him, with it in his hand.
On the second question, I assumed you meant they dropped out of a pocket in his coat or something. You're right, if they are in his hand...he's stupid.
Ideological: I believe that reasonable restrictions on police authority are both in the spirit of the Constitution and to the benefit of society. As a lesser-known contemporary philospher once said: "With great power comes great responsibility." [1] The police--as a whole--are given broad and powerful authority (i.e., "power") in a wide range of circumstances. This is both reasonable and beneficial to society as a whole. With that power, however, there must come checks and balances to prevent it from being misused. They need to act "responsibly." Any rule or ruling which encourages and enforces responsible behavior without unduely hampering the proper use of power is desirable.
Practical: When looking at whether "the police" describes an individual or a group, it's only reasonable to look at how they operate. In the case in question, it was not an idividual person who acted. It was--at the very least--3 persons from 2 separate jurisdictions (the arresting officer, the clerk for Coffee County and the clerk for Dale County). More realistically, it involved quite a few more people in both jurisdictions (including, but not limited to officers, judges, clerks, computer programmers, and persons doing data-entry). The false information on which the arresting officer acted was not the result of a person, but of an encompassing entity ("The Police"). When dealing with matters which can, and do, deal with life and death, it is certainly not unreasonable to place the onus of responsibility upon every person involved in the process. I don't know what the retracted warrant accused Herring of but, since this is a precendent-setting case, what if it had listed him as a viloent cop-killer? Rather than a questionable search we could easily be discussing a dead, <i>innocent</i>, civilian. In that situation, false information from a clerk is placing a de facto death sentence on someone's head. The entire system <i>must</i> be held accountable for the information they place in the hands of the officer. He expects, and requires, accurate information in order to properly perfrom his job.
Proactive: Given both reasons listed above, defining "the police" as the entirety of the system, rather than just the individual on the street, give a real and authoritative incentive for law enforcement departments to increase the accuracy and responsiveness of their informational systems. As it stands, what incentive is there for one jurisdiction to make sure that the information in their database is accurate and up to date? Defining "The Police" as only the individual on the street would give incentive for a jurisdiction to <i>not</i> keep their database accurate and up to date. It could easily become unofficial policy to actively request and accept all notification of warrants, while ignoring all revocations and/or revisions of those warrants.
The simple fact of the matter is that no officer acts alone. With the rare exception, decisions in the field are made based on information provided by persons "back at base". In the Herring case, the officer acted based on information provided by 2 separate jurisdictions. It should specifically be noted that after being told that there was <i>not</i> a warrant in Coffee County, Anderson <i>specifically</i> requested information from another jurisdiction. Had the information been accurate and up to date, there would have been no probable cause, and thus no search. It's "the system" that placed the authority to approach and arrest into the hands of the Anderson. "The system" must be held accountable for that authority.
[1] "Uncle Ben" Parker from the Spider-Man comics.
suppression has a huge effect, as do many court decisions that reference it and other law enforcement matters. when cases of particular interest to WA LEO's are decided, we get notified in our department bulletins. we also (or at least i do) read the law enforcement digest each month which is put out by the state AG and keeps us up to date on the latest case law.
two huge cases in WA were ferrier and ladson. both required major changes in how we do things, and when they came up, we were advised to change our practices to be in accordance with them.
i am (kind of ) lucky in that i came to WA from HI. HI is much much more restrictive than WA in regards to search, seizure, miranda, and pretty much everything. so, i got to expand my police powers so to speak. WA is a very liberal state, but can't touch the people's republic of HI where we had to mirandize over the phone, etc.
also, i also realize a lot of people like to think that "officer safety" exceptions are just things we make up to "get around" the 4th. the reality is that even prosecutors and defense attorneys have told me they would rather we do a questionable frisk or other action even if it's gonna get suppressed with 20/20 hindsight vs. put ourselves in undue danger.
OTOH, when I get patted down for weapons (fairly routine), the search almost always devolves into a fishing expedition. I had an officer decide to flip through my pack of cigarettes during a Terry stop -- I tried to ask him what sort of weapon he expect to find in there but that line of questioning got me nowhere.
and it very may well be. it is not required that we tell people every 5 minutes that they are free to go. extreme example: if i respond to your house to take a burgary report need i tell you every 5 minutes that you are free to go (in your own house)? that's ridiculous, but you get my point. cops talking to people doesn't = seizure. period.
personally, i prefer to err on the side of caution but that's me.
most police interactions with civilians, like most civilian to civilian interactions ARE voluntary encounters.
" There are also the wonderful leading questions: "Do you know why I pulled you over?", trick questions "Do you mind if I search your car or do you have something to hide?" and, as I noted earlier, a general perception that denying consent or refusing to answer irrelevant questions is a surefire sign of guilt."
i don't have that general perception, maybe some do.
and also note that, at least in my jurisdiction, that two part question as to searching the car would almost certainly be held to have vitiated consent.
really? what exactly do you do that makes it fairly routine?
most people i have talked to about this (family members etc.) have never been pat frisked.
" the search almost always devolves into a fishing expedition. I had an officer decide to flip through my pack of cigarettes during a Terry stop -- I tried to ask him what sort of weapon he expect to find in there but that line of questioning got me nowhere."
well, clearly assuming he WAS doing a frisk, he exceeded the scope. i would hope if he found drugs in there he would at least have the decency to destroy them and not consider a booking. that would be what is referred to as a "rip" and no self-respecting cop "tries to make a bad case good"
If there's no consequence for doing the wrong thing without making mistakes, then ways can be found to do the wrong thing without making mistakes.
seriously. think about it for a second.
..The clerks data base doesn't mean squat. It's a flickering computer screen ( maybe in Alabama it's clay tablets ) but only the warrant is : THE WARRANT ! Hear angels chiming in here. If you tell me or my dispatcher you hold a warrant for that notorious B.I.G. guy David Schwartz, your pink and grimies better be grasping it. I'm more than happy to horsewhip the clerk who lies about that, but it wasn't her ( and it was a her, read the brief )that set up the system of confirming a warrant without actually touching it. Therein lies the corruption that harmed Herring. Not personal, or even personnel corruption, but systemic and very foreseeable Murphy corruption. Whoever set it up this way is probably rocking on the porch in their second childhood now, beyond the reach of my horsewhip. A pity.
...Oren my boy. You gotta quit going to THOSE kind a bars! I've carried since 1971 and never had a pat down search. No, they didn't all know what I did. And I never had to ask if I was free to leave. What ARE you doing to catch their attention? The cops, I mean.
You cannot bootstrap from bad faith to good faith. If you start the research in bad faith, you cannot end up with a resulting belief held in good faith.
People make errors, and if you look for a reason to believe X, you will eventually find one. If the search started in bad faith, the result is held in bad faith. It is not good faith to stop an investigation and act urgently the second you can justify the result you wanted in the first place.
What if the clerk had said, "I can't search right now because my computer's down, but there might be a warrant."
....Out here in cowboy country, you've got 20 minutes at most to rouse Sheila the warrant clerk from her slumber and make her lumber to the files. And what Whit says has happened to me. Back before earphones you could hear dispatchers chat over the intercom with the Sheriffs dispatchers. I've heard them tell my dispatcher that they were the only ones at the sheriffs office and couldn't leave the radio to go searching in the basement for a warrant. Having a mightbe warrant is the same as having a mightbe lottery winner. Don't spend the money just yet.
..But all is not lost. Let Ol Herring go back to school and he will swim by again. These guys keep pitching, so you don't have to catch them on every toss of the net. And the shift is young, the warrant files are bulging and, well, he ain't the only fish to fry. Look, there goes one floundering by. Maybe I'll stop him....for the halibut.
exactly. if they can't find the warrant in a reasonable period of time (15-20 minutes), you kick the guy loose.
maybe a serious felony warrant might justify waiting a half hour or so.
but you gotta confirm a warrant IN HAND with whatever agency holds it before you leave the scene. handcuffing before confirmation in hand is ok. search, put in back of car, etc.
but if the agency can't confirm in a reasonable period of time - kick it.
these are cases of developing probable cause. if the dispatcher says there is a warrant for that person, that IS probable cause. but if the originating agency can't find the warrant (rare, but it happens), your pc has evaporated.
here's another one. a guy TELLS me he has a warrant. is that PC? my prosecutor thought so. but i would certainly be duty bound (due diligence and all that) to CONFIRM that warrant in hand before i transported him from the scene.
i once did a "social contact" that worked exactly that way (consensual encounter - free to leave, etc.). i said "i'm ....." would you mind telling me your name? he says "i can't tell you my name because i have a warrant".
this was yet another example of really stupid criminal and it's hard to believe but it's true file.
if he had just refused to give me his name i would have told him to have a nice day. :)
instead, he went to jail for his warrant. realistically, i think he was tired of avoiding and runnin' and stuff and that might have been part of it too.
but when he said he had a warrant, i most definitely AT THAT MOMENT was justified in cuffing him up. PC. then, i confirmed with dispatch.
and so much for that
You are right that, in general, police chatting people up is not a seizure. Nevertheless, I would appreciate it if, in general, cops made a minimal effort to be clear about it. It seems to be a recurring theme for me that some questions are phrased to sound like orders and vice versa. "Could you step out of your car?" is a question that I can answer yes/no. "Step out of your car (please/sir)" is an order.
Spend some time in a "high crime area" (which is a wonderful police dodge, what they really mean is "low whites area" but they can't say that) and you get frisked fairly often.
I suppose it's too much to ask to leave me in peace? Instead, I have to be grateful that the cop that searched me illegally is destroying my property instead of sending me to trial where I will likely prevail on suppression and still have my property destroyed. That just peachy.
In my experience, refusing consent to search leads to half the agency showing up fairly quickly.
That's a good one. :-)
...If you think you come off bad on traffic stops, you ought to see those friendly guys and gals that smile and show skin when they get the ducat. They get a lot more disturbed than the guy who just doesn't like cops.
..I stopped a guy in Barstow and cited him. He signed the cite and sarcastically told me " Have a NICE day, Off..isssss.errrrr ! " I smiled as sincerely as I could and thanked him in a heartfelt way. When he saw I didn't get his sarcasm, he yelled " I didn't mean it that way ! " Made my day for a week.