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Oral Argument in Herring v. United States:
The transcript is here. It was very engaging argument with two excellent advocates, Pam Karlan for Herring and Michael Dreeben for the United States, and the Justices were in top form. Karlan did her best in her opening argument, but Roberts, Alito, and Scalia were relentless. Mid-way through Dreeben's argument, it was looking like the case was over: The Justices were debating the best way to write the opinion to affirm. (When AMK starts asking what specific words the Court should or shouldn't use, it's usually a sign.) Pam had 8 minutes left for her rebuttal, but it was hard to get any traction by that point. Anyway, no major surprises on the merits: I thought the Justices focused on exactly the right issues. As I had suggested before, I think once the Justices really delve into the issues, it becomes a pretty clear win for the government.
Sasha Volokh (mail) (www):
http://hehe.at/funworld/archive/fun4you.php?joke=127

"What is it that hangs on the wall, is green, wet -- and whistles?"
I knit my brow and thought and thought, and in final perplexity gave up.
"A herring," said my father.
"A herring," I echoed. "A herring doesn't hang on the wall!"
"So hang it there."
"But a herring isn't green!" I protested.
"Paint it."
"But a herring isn't wet."
"If it's just painted it's still wet."
"But -- " I sputtered, summoning all my outrage, "-- a herring doesn't whistle!!"
"Right, " smiled my father. "I just put that in to make it hard."

-- Leo Rosten, "The Joys of Yiddish"
10.7.2008 5:44pm
Waldensian (mail):
I was lucky enough to have Pam Karlan for conlaw at Virginia. She's an outstanding teacher. Having reviewed the transcript, I suspect she did the best possible job in a very "tough room."
10.7.2008 5:44pm
Sasha Volokh (mail) (www):
http://mjhutchinson.com/quotes/author/9

Cut down a tree with a herring? It can't be done.
10.7.2008 5:45pm
OrinKerr:
Waldensian,

I thought Karlan was terrific in her opening argument. But yeah, she had a pretty tough case.
10.7.2008 5:48pm
Profane (mail) (www):
Augh! Ohh! Don't say that word.

What word?

I cannot tell, suffice to say is one of the words the Knights of Ni cannot hear.

How can we not say the word if you don't tell us what it is?

Aaaaugh!
10.7.2008 5:48pm
DanJ (mail):
Regardless of the uphill battle Prof. Karlan was facing, she did have a great zinger: "There's not a Barney Fife exception to the Fourth Amendment." I burst out laughing when I read that.
10.7.2008 5:58pm
Steve:
Great exchange:

CHIEF JUSTICE ROBERTS: So, you would impose a burden on the officer on the street serving a warrant? When he gets the call saying there's a warrant, he's supposed to say, "Are you sure? Did you double-check with the clerk? When was the last time they updated the computer system? I don't want to go through all this if the evidence is going to be suppressed." At every chain in command, you would impose that burden.
MS. KARLAN: No, I would not, Mr. Chief Justice, because if you announce that police error is going to lead to the suppression of evidence, the police will do a better job of maintaining their records.
CHIEF JUSTICE ROBERTS: Yes, but I mean I don't know what the situation is like --
MS. KARLAN: And then you won't have this problem.
CHIEF JUSTICE ROBERTS: I don't know what the situation is like in Dale County. They probably don't have the latest version of WordPerfect, or whatever it is. They are probably making do with whatever they can under their budget and doing the best they can.
MS. KARLAN: But there's not a Barney Fife defense to the violation of the Fourth Amendment either.
10.7.2008 6:05pm
Affirmed:
What about his case merited Supreme Court review?
10.7.2008 6:11pm
Alex Blackwell (mail):
This is just a rough sample from Karlan's argument, but it's never a good sign when these types of responses (however justified) are scattered throughout:

"[W]hat I'm trying to get at..."
"I'm trying to answer..."
"No, I'm trying --"
"I know. I'm trying to answer that question."
"No. I'm trying to answer that question, and the point I wanted to make is..."
"No. The point I was -- the point I was trying to make is..."
10.7.2008 6:23pm
Cornellian (mail):
Darn it, someone beat me to the inevitable Python reference :(
10.7.2008 6:27pm
Oren:
I thought Karlan was terrific in her opening argument. But yeah, she had a pretty tough case.
Respectfully disagree. She lost the case as soon as soon as she failed to properly distinguish Arizona v. Evans, a failure of the court, with the instant case in which the Sheriff allowed their computer database to become stale.

For instance, the CJ says:

I guess it's difficult for me to see if no one has done anything wrong, no one, why you would suppress the evidence in that case.

Of course, it's obvious that someone did something wrong -- otherwise the system would not have reported the existence of a withdrawn warrant. I simply do not understand why the CJ insists that we need to "get into negligence" -- someone has done something wrong (either by negligence or otherwise) and, as a result, a man was wrongfully arrested. That arrest was void ab initio and anything that followed was fruit of that initial illegality.

As an aside, as someone that programs computers semi-professionally, I found AMK's discussion of a hypothetical "malfunction" in the computer system to be laughable. Computer systems are deterministic machines -- they will always produce the same output from the same input. There is no such thing as a "malfunction" -- only an error in the input, inconsistency in the model or an error in implementation.
10.7.2008 6:33pm
MJG:
It's going to be a vote for the gov't. I think the only sure vote against was Stevens. The question then becomes whether the Chief lets Scalia write the "I hate the exclusionary rule" decision he'd like to--his exchange where he basically sounded disgusted that deterrence is at all a persuasive rationale for the exclusionary rule was telling (along with his paean to how far things have come with police departments? wherever that comes from?).
10.7.2008 6:37pm
Oren:
Incidentally, I will shortly be marketing my new warrant-tracking software to police departments all over the country. It's just reliable enough not to be negligent but still manages, through no fault of any of the users/programmers to incorrectly report warrants where none exists. I'll even allow the department to pre-program the error rate they want!

Even more exciting, when you query any Sheriff's office for a warrant on a perp, my software will automatically query all the other depts on the grid therefore multiplying the chances for a fortuitous error that is still no one's fault!
10.7.2008 6:41pm
OrinKerr:
Oren,

I think Karlan had trouble distinguishing Evans because its actually pretty hard to do. We know that an error was made, but we don't know exactly who made it or how. That makes it pretty hard to come up with a rule that distinguishes Evans, beyond some sort of amorphous rule that "the police" writ large must have done something wrong.

I think the difficulty with your position is this:
Of course, it's obvious that someone did something wrong -- otherwise the system would not have reported the existence of a withdrawn warrant.
You can imagine lots of situations were the system reported false information without any identifiable person doing something wrong. For example, imagine the database was constantly updated when it was online, but that sometimes the database updating had to be disabled for maintenancce purposes or because the power went out. The warrant is recalled, and the database isn't immediately updated because the system is undergoing maintenance: an hour later, the sheriff's office clerk reads the database and thinks that the warrant is still in existence. Who is at fault? I think it's pretty hard to say.

That's the problem Karlan had: It's hard to trace fault, which meant that she had to either argue for a kind of strict liability rule or else come up with a test for tracing fault. Neither was a very easy option. You may think that strict liability is the way to go, on a theory that error must imply fault, but I don't think there are votes for that (or at least more than one).
10.7.2008 6:55pm
OrinKerr:
Affirmed:

This case was one of those teeny cases that the Stanford Clinic found a split on.
10.7.2008 6:58pm
PLR:
It's always fun to see decisions of lasting significance under the Bill of Rights being handed down in the context of screwy fact patterns in which the government is rewarded for its own mismanagement.
10.7.2008 7:09pm
Asher (mail):
She lost the case as soon as soon as she failed to properly distinguish Arizona v. Evans, a failure of the court, with the instant case in which the Sheriff allowed their computer database to become stale.

Could we put a ban on 'the instant case' here? Maybe every time someone writes 'the instant case' in a comment, you could program it to automatically get changed into 'the case before the court.' I just think 'the instant case' is horrible English.
10.7.2008 7:48pm
Steve:
Scalia's schtick about how police departments are so professional nowadays is something I've heard from him a lot. You wouldn't think the state of criminal procedure would rest on Justice Scalia's gut feeling about the current state of policework, but it's sort of like "evolving standards of decency" from a conservative perspective rather than a legal one.
10.7.2008 7:51pm
Don Miller (mail) (www):
As a computer professional, I am find it frightening that the government will be rewarded for having a stale database.

The plaintiff attorney tried to point out that the police like to have petty warrants on file. Basic belief of the police is that everyone has done something wrong. If they have reason to arrest you, they believe they can find something. These "small" warrants give them the excuse to arrest someone without probable cause (the warrant is the cause) and do a search, so that they can find evidence of something else.

Without an exclusion rule, I predict this will be back in front of the Supreme Court because the Police Departments will be burdened with 1983 lawsuits for negligent maintenance of the records. I will give it 20 years to reach critical mass.
10.7.2008 8:08pm
MJG:
Steve,

Ha! Nice (though somewhat depressing) analogy. I think that's about right.
10.7.2008 8:08pm
David M. Nieporent (www):
What I didn't get -- because the government had a hard time answering -- was what the standard should be. He really didn't want to concede that even negligence was sufficient, but in any case nobody liked the idea of having negligence trials in suppression hearings.
10.7.2008 8:09pm
Waldensian (mail):

Basic belief of the police is that everyone has done something wrong. If they have reason to arrest you, they believe they can find something.

Certainly some police act as if they believe that. And I agree that you can't run the railroad that way.

But, after watching the TV show "Cops" for many years, I have the sneaking suspicion that every last person out there with a failure-to-appear warrant REALLY IS, in fact, guilty of some other crime, and moreover, the evidence of that crime will be in their car or their pocket, and when confronted with the evidence, they will claim it isn't theirs, wasn't in their pocket, or that the car belongs to someone else.

But I digress.
10.7.2008 9:04pm
Tatil:

if the reason he thought there was probable cause is another officer told him there was probable cause and that officer was wrong, this Court said in Leon you continue to suppress. Here, this police officer was told by other police personnel that there was a warrant, and there wasn't.

Ms. Karlan's argument seems quite convincing for me. If the clerk is working for the police department, evidence should be suppressed. Otherwise, I just don't see the police departments spending money to cleaning up "low priority warrant" records. Just the opposite, it would actually give them an incentive not to clean them up.
10.7.2008 9:08pm
Oren:
Orin, thanks for the insightful (or should I say incisive, since it shreds my distinction?) response. Hopefully you'll indulge a second attempt to distinguish from Evans. You'll also have to correct me if I misstate the law, of course.

First, a definition -- when I refer to an "authority", I mean the person or computer system that is responsible for giving a definitive correct answer within the context. IOW, other systems are entitled to assume that the authoritative source is correct.For instance, the HHS database in charge of social security is authoritative about which name goes with which number while the one at the IRS is merely a copy -- if the two systems differ, the one at HHS is "correct". Now, if the IRS has the wrong SS for Orin's SS there are two ways this could happen -- either the IRS could have botched it OR the error could be in the original HHS database and merely propagated along to the IRS when they copied it over.

From a computer-science point of view, these are two very different classes of errors. In the former case, the system is broken because it has not ensured that the copies are correctly synchronized with the authoritative source whereas in the latter, the error is external to the system (e.g. the system provided the correct answer within its own context -- it followed its own rules for the incorrect input).

Now, to me, the authoritative record of a warrant lies in the issuing court and so the Dept. has a duty, analogous to our computer systems, to propagate that information correctly and promptly. In Evans, the police did precisely that and were only incorrect because the clerk (the authoritative source) gave it incorrect information -- the police followed information that they were entitled to think was correct. This stands in stark contrast with the instant case in which police used information that they had no such entitlement because they relied on a non-authoritative source. In essence, they confused a copy of a warrant with the genuine article.

As a practical matter, I would say that an arresting department has a duty to confirm a warrant with the issuing court before effecting the arrest -- they have to have an authoritative answer (not a copy) that states there is a warrant for the arrest of so-and-so. Insofar as they effect an arrest without it, it is as if they did not have a warrant at all.

Finally, to address your hypothetical:
For example, imagine the database was constantly updated when it was online, but that sometimes the database updating had to be disabled for maintenance purposes or because the power went out. The warrant is recalled, and the database isn't immediately updated because the system is undergoing maintenance: an hour later, the sheriff's office clerk reads the database and thinks that the warrant is still in existence. Who is at fault? I think it's pretty hard to say.
No one is at fault for the error, but the fact remains that a Sheriff did not confirm the existence of a warrant, only a copy.

I am willing to allow some "play" in the joints -- if a Sheriff has obtained a reasonably timely authoritative confirmation of a warrant, he should be entitled to rely on it. What he is not entitled to do is create a parallel system and then play make-believe that it is the genuine article. The information in his computer system is just no substitute for an actual warrant.
10.7.2008 9:24pm
Oren:

What I didn't get -- because the government had a hard time answering -- was what the standard should be. He really didn't want to concede that even negligence was sufficient, but in any case nobody liked the idea of having negligence trials in suppression hearings.

Nobody likes being arrested for stale warrants either. At any rate, until Orin demolishes my line of reasoning above (any minute now), it still my belief that no finding of negligence is needed either way. If the cop got a warrant from the authoritative source (ala Evans), he's blameless -- otherwise, he is strictly liable if he gets it wrong.

The more I think about it, the more absurd it seems (and the more angry I become). Each agency gets to keep parallel copies of the same information AND gets to consider his copy as good as an original?! Where else could you get away with such a thing? It's the equivalent of telling my bank that they shouldn't bounce a check because my transaction register says that I still have the money. My transaction register doesn't count for shit -- only the bank's internal register matters. Similarly, the Sheriff's computer system is a nice thing to be able to check quickly but, legally, it shouldn't count for shit -- it's not the original article.

I know I shouldn't get angry at this stuff but it's infuriating that basic principles of information technology such as authoritative records can be replaced by a system where I can be arrested by any podunk Sheriff whose clerk misspelled my name.
10.7.2008 9:36pm
wolfefan (mail):
Hi -

IANAL, so the legal issues are beyond me. That means that this post may not be germane at all, but I want to say it anyway.

I am sometimes one of those responsible to confirm that warrants are valid for the units on the street. I am not allowed to confirm a warrant as valid unless it is "in hand" - literally being held and looked at by a person. This is true whether it is our warrant or another agency's. Whether the other agency actually has it in hand I obviously can't say, but they are telling me that it is. Further, we don't do warrant confirmations on the phone. There's no accountability on the phone. If another agency calls and asks us to confirm one of our warrants, we require them to put the request in writing through a teletype.

I am stunned that some agencies simply take the say-so of whomever happens to pick up the phone someplace that a warrant is valid. Forget about whether databases are accurate or not - the whole process by which this warrant was confirmed appears to be flawed.

From time to time we have the originals of the warrants from other jurisdictions which we serve at their request. Even though we may have an original that is valid on it's face in hand, we still check with the originating agency to confirm that the warrant is still valid. I have seen an agency arrest and serve an original on someone who was released several hours before after having been arrested on a copy of the same warrant. This happens a lot with stolen cars, too.
10.8.2008 12:11am
CDU (mail) (www):
For instance, the HHS database in charge of social security is authoritative about which name goes with which number while the one at the IRS is merely a copy -- if the two systems differ, the one at HHS is "correct". Now, if the IRS has the wrong SS for Orin's SS there are two ways this could happen -- either the IRS could have botched it OR the error could be in the original HHS database and merely propagated along to the IRS when they copied it over.


I don't think your hypothetical quite fits the facts of the current case. In this case the Coffee County officer contacted the Coffee County warrant clerk who contacted the Dale County warrant clerk and asked if Dale County had any warrants for Herring. Dale County said they did and the arrest was made. A better analogy here would be that the IRS doesn't maintain it's own database, but instead they query the HHS database every time they need a social security number. It's more like the way DNS servers work than a database synchronization problem.

The more I think about it, the more absurd it seems (and the more angry I become). Each agency gets to keep parallel copies of the same information AND gets to consider his copy as good as an original?!


Not in this case. There are only two copies of the information here, both held by the same agency (Dale County). There is the physical copy of the warrant, and the electronic information in the Dale County database. Coffee County didn't hold a copy of this information at all, the Coffee County warrant clerk (and by extension, the Coffee County deputy) were relying on what the Dale County warrant clerk told them over the phone.

Now, a decision on these facts may end up being bad law when applied to jurisdictions with less antediluvian systems, the court has to decide this case based on these facts.
10.8.2008 1:04pm