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Supreme Court Hands Down Herring v. United States:
Today the Supreme Court handed down what is probably the most interesting Fourth Amendment case of the Term, Herring v. United States, the case on whether the Fourth Amendment required suppression when a negligent error in a police database led an officer to incorrectly believe that there was an arrest warrant out for a suspect and therefor to arrest him. Readers may recall that after reading the briefs and the argument transcript, I had concluded that Herring was a narrow but clear win for the government. Somewhat to my surprise, the case became a 5-4 decision, with Chief Justice Roberts writing the majority opinion with the four liberal Justices in dissent, in what is almost a replay of similar issues 14 years ago in Arizona v. Evans, 514 U.S. 1 (1995).

  Roberts' opinion adopts the now-standard balancing approach to the exclusionary rule, in which the court balances the costs of exclusion of the evidence to the public safety to the deterrent benefit to the police, and concludes that under this balance the exclusionary rule does not apply. Here's Robert's basic argument, with citations and internal quotations omitted, as numbered in the opinion:
  1. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable— does not necessarily mean that the exclusionary rule applies.
  2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct.
  3. To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. 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. The error in this case does not rise to that level.
  4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion.
  Petitioner's claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not "pay its way." In such a case, the criminal should not go free because the constable has blundered.
  In contrast, Justice Ginsburg's opinion, joined by Stevens, Souter, and Breyer, argues for a broader conception of the exclusionary rule:
  I would not so constrict the domain of the exclusionary rule and would hold the rule dispositive of this case: "[I]f courts are to have any power to discourage [police] error of [the kind here at issue], it must be through the application of the exclusionary rule." Arizona v. Evans, 514 U. S. 1, 22--23 (1995) (STEVENS, J., dissenting).
  [After describing narrower view of the exclusionary rule, Ginsburg writes:] Others have described "a more majestic conception" of the Fourth Amendment and its adjunct, the exclusionary rule. Evans, 514 U. S., at 18 (STEVENS, J., dissenting). Protective of the fundamental "right of the people to be secure in their persons, houses, papers, and effects," the Amendment "is a constraint on the power of the sovereign, not merely on some of its agents." Ibid. (internal quota-
tion marks omitted). I share that vision of the Amendment.
  The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.
  Is the potential deterrence here worth the costs it imposes? In light of the paramount importance of accurate recordkeeping in law enforcement, I would answer yes. . .
  Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. Such errors present no occasion to further erode the exclusionary rule. The rule "is needed to make the Fourth Amendment something real; a guarantee that does not carry with it the exclusion of evidence obtained by its violation is a chimera." Calandra, 414 U. S., at 361 (Brennan, J., dissenting). In keeping with the rule's "core concerns," ante, at 9, suppression should have attended the unconstitutional search in this case.
Justice Breyer then wrote a short dissent joined by Souter in which he argued based on precedent that Arizona v. Evans was distinguishable because this case involves a police error, not a court error.

  I'll have to take some time to digest this, but off the top of my head I'm struck by this case being a replay of Arizona v. Evans back in 1995. Seven of the nine Justices were on the Court then, and they're pretty much in the same position now that they were in then. Back in 1995, Ginsburg dissented, Stevens dissented, and Souter and Breyer wrote a short opinion expressing the view that it was still open as to how the issues would play out with other database errors with different facts. I suppose it's arguable that Justices Souter and Breyer have shifted more to the Ginsburg/Stevens view, as they joined the Ginsburg dissent in Herring today that is pretty much like her dissent in Evans 13 years ago, but it's hard to say given their short opinion in Evans.

  Finally, it's interesting that Justices Ginsburg and Stevens (and perhaps Souter and Breyer) didn't seem to give any deference to the Evans precedent. I'll have to look more closely at this issue, but it seeems that they endorsed the approach of the Evans dissenters rather than the Evans majority and would not give the majority opinion any stare decisis effect. That's my initial sense, anyway — do others read the Ginsburg dissenting opinion differently?
Lior:
To a layman, both the opinions seem starkly devoid of legal reasoning. Both expressly state that their "analysis" simply amounts to stating the policy preferences of the respective authors. That is not a very encouraging situation.

As an aside, it's amusing to note how judges are keen to "deter" police misconduct but quick to distinguish judicial misconduct.
1.14.2009 12:52pm
OrinKerr:
Lior,

Are you referring to the excerpts above, or the opinions themselves?
1.14.2009 12:54pm
db:
Professor Kerr:

I'd be interested in your thoughts on Tom Goldstein's post, which focuses on the following seemingly far-reaching quote from the case:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. 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.

Slip op. at 9. If the Court intends to follow through on that position, it would seem to me to be a pretty big change in Fourth Amendment doctrine.
1.14.2009 12:57pm
Soronel Haetir (mail):
Given the documented problems with police databases, especially in regard to Texas (Grits for Breakfast has covered this issue a number of times), I would not be so quick to discount this as anon- systemic problem.
1.14.2009 12:58pm
D.A.:
Prof. Kerr,
Tom Goldstein reads the majority Herring opinion quite broadly, in this post at Scotusblog. He argues, essentially, that the majority's reasoning extends far beyond clerical errors and will be followed by a drastic reduction in the exclusionary rule. I found that an interesting view.

Could you comment?
1.14.2009 12:58pm
D.A.:
Sorry to step on your toes, db. You posted while I was reviewing. Should we consider that a motion and a second?
1.14.2009 12:59pm
Prosecutorial Indiscretion:
I look forward to citing the bejeezus out of this opinion.
1.14.2009 1:01pm
S:
Orin: Arizona v. Evans turned on whether the error was actually likely to be deterred by the threat of exclusion. Because it was a judicial error, and because exclusion doesn't really punish judicial officers and isn't likely to deter them much -- unlike the police, they don't have a stake in whether defendants are convicted or acquitted -- the Court held that exclusion was not warranted because the minimal marginal deterrence was outweighed by the very substantial costs of excluding truthful and relevant evidence.

By contrast, the facts in Herring assume from the start that the conduct here would be deterred by exclusion. After all, we're talking about what's been framed as police negligence, and as Petitioner's brief puts it, "Much of the edifice of modern tort law is built upon the understanding that the prospect of future liability will provide incentives for regulated actors to take the appropriate level of care -- that is, to behave non-negligently."

Viewed that way, this fundamentally an entirely different case than Herring. Herring said that exclusion isn't required when it would have no appreciable deterrent effect (and thus the benefits would be easily outweighed by the costs). By contrast, Herring is seen as a situation where exclusion would undoubtedly have a tremendous deterrent effect (although the government admittedly made a few arguments otherwise). It may superficially resemble Arizona v. Evans, but in actuality, one small change -- from judicial negligence to police negligence -- makes this a fundamentally different case. That's why it's no surprise that you don't see the Justices dwelling on Evans at all: it's not that they refuse to give Evans any respect as precedent, but that Evans is simply out there in an entirely different world than what we have going on here in Herring.
1.14.2009 1:03pm
Sasha Volokh (mail) (www):
What's green, wet, hangs on the wall, and whistles?
1.14.2009 1:07pm
anomdebus (mail):
aside: I wonder what game theory says about respecting stare decisis. Or vice versa, what it says about philosophies of stare decisis that differ from the game theory optimal results.
1.14.2009 1:12pm
hattio1:
My prediction, as a practical matter this case means that NO negligent errors will ever result in exclusion. I know they kept in exceptions for gross negligence and systemic negligence, but lower court judges won't find those except in the most egregious of cases....and often won't let defense attorneys introduce evidence of negligence in other cases...thereby effectively closing off the "systemic negligence" cases.
1.14.2009 1:14pm
whit:

unlike the police, they don't have a stake in whether defendants are convicted or acquitted


i fear getting flamed for this (oh noes), but i don't buy the proposition that the police have a stake in whether defendants are convicted or acquitted. the only one who really has a stake is the crime victim.

cops don't work for the prosecution, and their job (unlike the prosecution) is not to use their superpowers to convict the guilty. their job is to gather evidence - inculpatory or exculpatory.

sure, any individual officer may want johnny dirtbag to get convicted but so does the average citizen. that doesn't mean they have a stake. i guess you could argue that by participating in the investigation, that makes them a stakeholder but it still doesn't mean stakeholder for CONVICTION. i have had to arrest and/or charge people who i personally hoped would not be tried/convicted, and so has every cop alive. we are not necessarily on the side of the prosecution, although i hear this myth a lot
1.14.2009 1:18pm
Soronel Haetir (mail):
whit,

In an ideal world what you describe would be the case. However, reading about police crime labs, situations like that in Chicago and the practices behind many false convictions lead me to believe that we live in something far from that ideal.
1.14.2009 1:27pm
Nick056:
Confining the application of the exclusionary rule to a relatively narrow set of circumstances gives the force of law to convictions based upon a review of improperly and illegally collected evidence. The police, who acted illegally in performing the arrest and search, had a "good faith" basis for their actions, or reasonable belief in the validity of an expired warrant.

This conception of the exclusionary rule -- that it is not incident to, and an adjunct of, the 4th amendment, but merely a deterrant instrument which the courts employ when it suits their own putative best interests to do so -- effectively robs the 4th amendment of much of its force. If a violation, here taken as a given, is not the result of systemic gross negligence or of deliberate or reckless misconduct, illegally obtained evidence is still admissable. What shields people from unreasonable search and seizure without probable cause if not an implicit promise that personal effects seized through a misapplication of law will not be used to obtain a criminal conviction?

Even based on a balancing test, now precedent exists to protect an atmosphere of laxity in updating warrant records. If expired warrants have the force of law in that the exclusionary rule is not triggered when agents of the law act upon those warrants, obviously negligent behavior is given special permission if not outright encouragement. It must be stressed that a false warrant cannot be given further legal reach or increased legal force because the officers acted upon that warrant believed it reasonably to be a valid warrant. It is still frankly as legally viable as a note from your mother.

Which is the troubling a disappointing aspect of this decision: when it says that the situation in Mapp is "thus far removed" from went on in Herring, it does so on the basis that one invalid warrant has more legal force than another because its procurement involved less recklessness or less gross and systemic negligence.
1.14.2009 1:31pm
whit:

In an ideal world what you describe would be the case. However, reading about police crime labs, situations like that in Chicago and the practices behind many false convictions lead me to believe that we live in something far from that ideal


while this is true the incentive for reporting (guilty parties who are found innocent don't usually go running to the press and the innocence project) skews the results.

look at, for example, the case that fuhrman reopened that resulted in skakel getting convicted decades later.

the point is that while i agree that there are some cops/lab techs who through either malice/malfeasance and/or incompetence skew the case towards conviction unjustly, there are also those who skew convictions into acquittals (or even non-arrests). but again, the innocence project, and the newspapers are not going to be NEARLY as intent in investigating/publicizing those cases, for obvious reasons.

i never said we live in the ideal. i am saying the police in general do not have a stake in seeing that johnny dirtbag is convicted. heck, one could make a perverse argument that johnny dirtbag being free is job security :)

on a more serious note, my point is true. just because *i* arrested somebody or did the investigation that resulted in him being charged does not mean i have a stake in his conviction . quite frequently, i may even WANT him not to be convicted or the case dropped.

but i do agree that the few who commit mal/misfeasance need to be dealt with
1.14.2009 1:32pm
whit:
nick, your post glosses over the fact that there is nothing preventing CIVIL remedy if the cops are relying on bad warrants, that were negligently kept in the system. the poin that this case decided was that the defendant should not benefit and the cops should not be punished for an error that was not the cops fault. that seems pretty reasonable to me (assuming that the exclusionary rule is in fact a reasonable constitutional idea).

if you are falsely detained on a non-existent warrant, and there is negligence - then SUE! this is frigging america after all. it's expected.

iow, the non-application of the exclusionary rule in this limited circumstance does NOT mean there is no disincentive. it merely means the exclusionary rule is not the disincentive.
1.14.2009 1:35pm
Katl L (mail):
So the conservatives follow the european position where there is no exclusionary rule but for Spain
1.14.2009 1:49pm
switch (mail):

whit:
if you are falsely detained on a non-existent warrant, and there is negligence - then SUE!

Anyone have data on how often such such suits are filed and what the liklihood of winning is?
I don't have data, but my intuition says "Rarely" and "Never."
1.14.2009 1:51pm
David M. Nieporent (www):
i never said we live in the ideal. i am saying the police in general do not have a stake in seeing that johnny dirtbag is convicted.
Really? Because I would hope that a police officer who routinely arrested innocent people would be fired.
1.14.2009 1:51pm
Oren:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it

What a load. If Herring came down the other way, I'm sure there would be a very deliberate attempt by police depts to ensure the quality and correctness of the information they use in the field.

IOW, Just because the behavior of the individual parties is not culpable (a position I agree to) does not mean that the institutions are not culpable for having shoddy procedural quality.
1.14.2009 1:53pm
buckeye (mail):
What do you mean by "have a stake"? Because when I was a prosecutor, cops were extremely interested, often much more than myself or my colleagues, in the outcome of the case. Vindication through conviction.
1.14.2009 1:56pm
David M. Nieporent (www):
if you are falsely detained on a non-existent warrant, and there is negligence - then SUE! this is frigging america after all. it's expected.
Sue for what, exactly?
1.14.2009 1:58pm
Nick056:
Whit, a civil course of action is never the appropriate foremost remedy for problems resulting from a breach of the constitution. Filing a tort for negligence in response to having been confronted at trial with improperly collected evidence is akin to bringing a wrongful death claim as the best and most viable method of redress in the case of an obviously illegal police shooting. If the police kill someone without legal foundation for doing so, a civil remedy is insufficient, and if the police procure evidence without a legal foundation for doing so, stripping suspects of anything but civil recourse robs them of a guarantee of 4th amendment protection.

I would also add that I take what is presumably the minority's view of your position: that the fact that tort law seeks to act as deterrant to negligence, and you would classify this as actionable tortious negligence, means that it can be considered a course of action potentially worth deterring, and which for which deterrence is possible. That to me creats grounds for triggering the exclusionary rule even if you view it as incident to a balancing test rather than an expressed feature of the 4th amendment.

The concern among judges such as Friendly that the guilty will walk because someone forgot to dot an "i" or made an objectively reasonable decision can't be construed as endorsing the failure to expunge invalid warrants from databases. The issue is not Anderson's state of mind upon arrest, or the reasonable state of mind for someone in Anderon's position, but the clerical error that allowed the arrest in the first place.
1.14.2009 1:59pm
D.A.:
whit,
"cops don't work for the prosecution, and their job (unlike the prosecution) is not to use their superpowers to convict the guilty"

With whom do the police work more closely, prosecutors or defense attorneys?

I agree with your statement in the abstract, but in the real world, it does not ring true and it's not a reporting error.

If police really didn't have a stake in the system, there would be no need for sentences like this: "A judge Tuesday reversed the convictions of nine more people allegedly framed by officers in the Los Angeles Police Department's Rampart Division."

Or this: "Historically, although contrary to both common sense and the earliest principles of policing established by Sir Robert Peel, success in policing has been measured by the number of arrests, or the number of cases brought into the system."
1.14.2009 2:01pm
deathsinger:
Katl L,

why don't you go ask some conservatives and leave us libertarians alone?
1.14.2009 2:02pm
whit:

Really? Because I would hope that a police officer who routinely arrested innocent people would be fired.



the issue in false arrest (i would assume you understand) is that the arrest is made w/o probable cause.

here's a little hint . probable cause can exist where people are in fact innocent. think, for example, a DV where a person makes a false complaint the other party threatened to kill them.

in my jurisdiction, assuming the elements of true threat exist (threat is communicated, person receiving threat is in fear, fear is a reasonable one), an arrest is MANDATORY.

also, there are plenty of circumstances where a case is sent to prosecutors (whether or not physical arrest) where they decide to charge wherein the officer either

1) thinks the law is unjust
2) thinks the prosecutor is not applying the law correctly
3) thinks the facts of the case do not support prosecution

etc.

my point stands. in many cases, conduct investigations wherein probable cause is developed. the PROSECUTOR makes the ultimate decision whether to charge andor prosecute.

and in some cases, an officer may NOT want that to happen, for any # of reasons.

none of those reasons imply false arrest.

again, if an officer arrests somebody who is in fact innocent that does not equal false arrest. it is neither sufficient nor necessary for a false arrest, that the person is in fact innocent.

second of all, even if the person is in fact guilty, it does not therefore follow that the officer wishes the person to be convicted.
1.14.2009 2:02pm
PatHMV (mail) (www):
Nick... the flip side is that the exclusionary rule requires courts to ignore true facts and (largely) pretend that they are not true. While we allow some exceptions to prevent actual perjury (even excluded evidence can be used to impeach a defendant who takes the stand and denies having possessed the drugs which were improperly seized from him).

Moreover, it requires us to release into the public individuals whom we know to have committed crimes (often violent crimes), simply because the police officer made a mistake. That may be worthwhile to do if the officer acted in bad faith, or was willingly ignorant of the law, but if the officer acts in good faith, why should the criminal benefit from that? Why should the court refuse to consider true facts in that circumstance?
1.14.2009 2:05pm
buckeye (mail):
whit, I feel like your explanation the roles of the prosecutor and police officer are the exact opposites of what I and many colleauges have experienced as prosecutors. As I said previously, generally I saw the police attempting to pressure the prosecution into vindication of officer actions, even when justice demanded or leaned toward the prosecutor using sound judgment in the case. More often than not, our directive from on high was to follow the wishes of the police. Coincidence that our elected supervisor needed police union support?

Prosecution for police vindication rather than for justice is all too common in my experience.
1.14.2009 2:06pm
whit:

Whit, a civil course of action is never the appropriate foremost remedy for problems resulting from a breach of the constitution. Filing a tort for negligence in response to having been confronted at trial with improperly collected evidence is akin to bringing a wrongful death claim as the best and most viable method of redress in the case of an obviously illegal police shooting. If the police kill someone without legal foundation for doing so, a civil remedy is insufficient, and if the police procure evidence without a legal foundation for doing so, stripping suspects of anything but civil recourse robs them of a guarantee of 4th amendment protection.


that's great, but in the case where the exclusionary rule DOESN'T apply (and let's not forget that the exclusionary rule was "invented" by the courts. it's not mentioned in the constitution), then civil redress IS the next foremost remedy.


would also add that I take what is presumably the minority's view of your position: that the fact that tort law seeks to act as deterrant to negligence, and you would classify this as actionable tortious negligence, means that it can be considered a course of action potentially worth deterring, and which for which deterrence is possible. That to me creats grounds for triggering the exclusionary rule even if you view it as incident to a balancing test rather than an expressed feature of the 4th amendment.




except the reality is that civil law (suing) is also a way for people who were wronged to get some compensation. regardless of whether the exclusionary rule should apply, a person who was arrested on a nonexistent warrant was clearly WRONGED. and we all know that govt. agencies routinely settle out of court when an innocent is wronged.



The concern among judges such as Friendly that the guilty will walk because someone forgot to dot an "i" or made an objectively reasonable decision can't be construed as endorsing the failure to expunge invalid warrants from databases. The issue is not Anderson's state of mind upon arrest, or the reasonable state of mind for someone in Anderon's position, but the clerical error that allowed the arrest in the first place



and the court decided that that clerical error that is no fault of the police does not trigger the exclusionary rule.

and the issue IS to some extent the state of mind, since the very concept of "good faith error" relies on a state of mind.

regardless, there is no exclusionary rule in these cases, so if you are wronged - sue.
1.14.2009 2:07pm
whit:

whit, I feel like your explanation the roles of the prosecutor and police officer are the exact opposites of what I and many colleauges have experienced as prosecutors. As I said previously, generally I saw the police attempting to pressure the prosecution into vindication of officer actions, even when justice demanded or leaned toward the prosecutor using sound judgment in the case. More often than not, our directive from on high was to follow the wishes of the police. Coincidence that our elected supervisor needed police union support?

Prosecution for police vindication rather than for justice is all too common in my experience.


my experience is the opposite. prosecutors are hammers. everything looks like a nail to them.

but i can agree to disagree.

and i disagree.
1.14.2009 2:09pm
whit:

Moreover, it requires us to release into the public individuals whom we know to have committed crimes (often violent crimes), simply because the police officer made a mistake. That may be worthwhile to do if the officer acted in bad faith, or was willingly ignorant of the law, but if the officer acts in good faith, why should the criminal benefit from that? Why should the court refuse to consider true facts in that circumstance?


assuming the courts are at all interested in "truth" or "justice" :)
1.14.2009 2:10pm
PatHMV (mail) (www):
In my own experience as a prosecutor, I've found that some cops are like buckeye describes, while some prosecutors are like whit describes.

One case I recall by the police was particularly egregious (and utterly incompetent). DNA revealed that a man arrested on suspicion of being a serial rapist behind a number of recent attacks was not in fact the rapist. The prosecutors informed the cops of this fact (they had arrested the guy because he was one of the "usual suspects," a recently released sex crime felon), but the cops basically replied: "We've arrested the only person we're going to arrest for this string of rapes." We explained that this wasn't a technicality, but that there was in fact a serial rapist still running loose out there, but they really didn't care. We shifted the investigation to another law enforcement agency in the area and eventually caught the guy.

Now, that office was particularly incompetent. We lost one murder confession (still got a conviction and the death penalty) because, in the VIDEO-TAPED interrogation, the officer was seen cussing and badgering the suspect about where he was on the night of the murder. After a few minutes of this, the suspect said (and this is an exact quote): "I want a lawyer." To which the cop replied: "I bet you do... now tell me where the #### you were on Monday night."

On the other hand, some of my colleagues could be far more zealous in prosecution than the officers involved.

As in all professions, there are good apples and bad apples in both police and prosecutors, and no overall generalization is likely to be accurate.
1.14.2009 2:19pm
David M. Nieporent (www):
again, if an officer arrests somebody who is in fact innocent that does not equal false arrest. it is neither sufficient nor necessary for a false arrest, that the person is in fact innocent.
Even if it isn't a technical element of the offense, it certainly is necessary, in the real world; nobody ever is found liable for false arrest when the putative plaintiff is actually convicted of the offense.

But if an officer is routinely arresting people who aren't guilty, there's something pretty obviously wrong with his probability-meter in determining probable cause, don't you think?

In any case, I didn't speak of liability. That's a separate issue. LEOs, contrary to your claim, do have a stake in 'dirtbags' that they have arrested being found guilty -- as someone above noted, vindication, if nothing else.
1.14.2009 2:19pm
Nick056:
PatHMV,

Nothing you say can be discounted. The "simulated reality" of a courtroom which outright suppresses indisputable fact in judging someone's innocence or guilt is ... Well, it's easy to see in consideration of that why Mapp had to forcibly extend exclusion to some states, and why that was not done until 1961. The point of the criminal justice system isn't merely to uphold the constitution in the abstract, but to punish the actually guilty, and I'm receptive to arguments that those who wrote the 4th amendment did so out of concern for the creation of political regimes, not to protect someone in clear illegal possession of guns and drugs.

But the criminal ought to benefit from police error because we are all harmed when specific police error enjoys the support of a legal judgement which must extend beyond any specific incident. Consequent to this case, all invalid warrants mistakenly left in police databases can be acted upon to effect arrests and procure evidence so long as the employees of that police precinct can testify that such mistakes are a rarity in their precinct. This judgment gives legal force to a warrant which was ever only thouht to exist because the police had a good faith belief that it did exist.

Speaking as someone no less interested as you in keeeping society safe and presumably no less at risk if we release those we know have committed crimes, the above facts alone cause me to balk at introducing the evidence in this casem even if I'm potentially wagering my safety in doing so, because I believe I'm wagering my ability to not suffer from police negligence and misconduct if I favor introducing this evidence.
1.14.2009 2:21pm
Soronel Haetir (mail):
PatHMV,

When the records are set up in a manner that allows any individual officer to rely upon them in good faith while being rife with institutional errors some remedy is required. I don't see exclusion as a remedy solely against the actions of a particular officer. But rather against the institution of policing.

This may be a distinction Whit would accept, the PD is likely to be a neutral party in any particular case, while the officer may feel attached to a given case. Wether that attachment is for conviction or non-prosecution doesn't seem all that relevant to me.
1.14.2009 2:22pm
Oren:

That may be worthwhile to do if the officer acted in bad faith, or was willingly ignorant of the law, but if the officer acts in good faith, why should the criminal benefit from that?

I agree, but what if the officer was acting in good faith in an institution without sufficient safeguards? That's the situation here -- the whole setup was not set up with any sort of quality control, auditing, double-confirmation or any of the other sane things that go into even the most basic record-keeping systems.

As a teenager, I worked at a video-rental chain and, it would surprise you to know, that we took much better care of our data on video rentals than the police do with information that impacts your personal freedom.
1.14.2009 2:30pm
Oren:

As in all professions, there are good apples and bad apples in both police and prosecutors, and no overall generalization is likely to be accurate.

No, but institutions that ensure that mistakes are caught by sufficient auditing and redundancy can provide the proper level of safeguards even in the presence of a heterogeneously-competent workforce.
1.14.2009 2:32pm
Andrew Hyman (mail) (www):
Seems to me the Court reached the correct result for the wrong reasons. Chief Justice Roberts wrote that "the exclusionary rule is not an individual right." I think it is an individual right, but with exceptions.

None of the justices disputed that there's a Fourth Amendment violation here. The defendant clearly did not receive the process that was owed to him according to the Fourth Amendment. But he will now be deprived of his liberty anyway.

So it seems strange to me that none of the justices mentioned the Due Process Clause (or that none of the litigants mentioned it). We have First Amendment exceptions for libel and slander, so there's nothing wrong with a Due Process exception for unintentional and non-reckless governmental errors.
1.14.2009 2:35pm
Matt Caplan (mail):
This case seems to me to be a replay of Hudson v. Michigan, with the same five supporting a narrow reading, and the same four supporting a broad ("majestic") reading.

It also builds upon Hudson. In Hudson, the Court wrote: "exclusion may not be premised on the mere fact that a constitutional violation was a 'but-for' cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression."

With respect to db's quote:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. 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.


The court is now describing what constitutes a "sufficient" condition for suppression. And the Court continues to be vague: "sufficient" means "sufficiently deliberate" or "sufficiently culpable."

I think that by listing "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systematic negligence," the court is stating that suppression requires more than mere negligence.
1.14.2009 2:37pm
PatHMV (mail) (www):
If in fact the erroneous entries are fairly rare, then I really don't have a problem with the ruling. This isn't a case where the police are filling up a database with erroneous information in order to provide pretexts for arrests (and searches incident thereto).

Isn't it fairly well established already that a search is valid if the officer, in good faith, accidentally, say, transposes a number of the address when applying for a search warrant? Or if the informant lies but the police have no reason to believe that the informant was lying, and he has been proven reliable in the past or provides some other verified, credible information?

This situation is very little different from those. Indeed, I find this particular scenario much less risky than the regular use of informants in drug cases. Look at all the horror stories brought about because some 2-bit crook succumbed to pressure (or furthered his own ends) by supplying false information about somebody who wasn't actually a drug dealer.

This particular type of error strikes me as the sort best remedied by methods other than the exclusionary rule. The innocent man can sue the office maintaining the database for its negligence in not updating it, while the guilty man could (in theory at least) still sue that office, but will have to do so from jail.

Particularly so here, where, if I recall correctly, the agency who said there was a warrant outstanding was actually a different agency from the agency employing the police officer who made the stop.

Suppose an officer in Louisiana does a traffic stop on a speeder. He checks the NCIC national database and finds that the state of Virginia has reported to the FBI that it has a warrant for this individual. The La. cops arrest the guy and, in a search incident to the arrest (which would not have been done for a mere traffic stop), discover a bloody knife from a recent Louisiana murder. Then it turns out that the man had already satisfied the Virgina warrant, but Virginia, through negligence, had not acted quickly enough to clear it from the system. Why should the bloody knife be excluded from evidence? Who would exclusion of the evidence deter? Virginia doesn't have a huge interest in the Louisiana murder. The Louisiana cops don't have any way to verify the Virginia information; deterrence can't make them any more careful than what they do now, check the national database.
1.14.2009 2:42pm
Jon Roland (mail) (www):
Several points:

* The exclusionary rule is not the result of construing the Constitution. It is the result of an equitable and prudential decision, which is not supposed to be treated as a precedent under stare decisis, because to do so would be to make law, in conflict with U.S. Const. Art. I Sec. 1 "All legislative Powers herein granted shall be vested in a Congress of the United States."
* At issue is not false arrest but admission of evidence, which need to be kept separated for purposes of weighing deterrence.
* Since the deterrent effects of excluding evidence seldom if ever result in cops being fired or their promotions impaired, such effects are mainly on the budgets of law enforcement agencies and the career prospects of prosecutors. For that purpose it makes little difference whether the violation was done by the cop or by a file clerk or data entry staffer.
* Anyone who contemplates suing a cop or police department should consider what can happen to him. See the retaliation in Atwater v. Lago Vista discussed in a memorandum attached to this petition. There are powerful disincentives, besides cost, against civil remedies, and without the option of private criminal prosecution, no realistic prospect of criminal prosecution of abusive officials.
1.14.2009 2:43pm
hattio1:
PatHMV says;

Moreover, it requires us to release into the public individuals whom we know to have committed crimes (often violent crimes), simply because the police officer made a mistake. That may be worthwhile to do if the officer acted in bad faith, or was willingly ignorant of the law, but if the officer acts in good faith, why should the criminal benefit from that? Why should the court refuse to consider true facts in that circumstance?


Because the harm that can come from intrusive police is greater, more harmful to the public at large, and MUCH more preventable, than the harm that can come from criminals.
1.14.2009 2:54pm
hattio1:
PatHMV says;

As in all professions, there are good apples and bad apples in both police and prosecutors, and no overall generalization is likely to be accurate.


Oh please,
Plenty of generalizations can be made...they just dont' apply to everyone. Litigation attorneys tend to be cocky assholes. Criminal defense attorneys tend to be cocky assholes with a problem with authority. Prosecutors tend to be cocky assholes who love having power over people...and so do police. Not everyone in thos categories is accurately described, but it's certainly a much higher rate than the general population.
1.14.2009 2:57pm
PC:
Given the documented problems with police databases

This is why I changed my legal name to "PC'); DROP TABLE Suspects;"
1.14.2009 2:57pm
Soronel Haetir (mail):
PatHMV,

How much of the database would need to be in error before you would consider it to be a grave enough problem that exclusion should apply in order to force the agency into better data practices? 10%? 25%? Given the investigations on Texas criminal data I would not be surprised by either of these thresholds.
1.14.2009 2:57pm
hattio1:
Oren says,

As a teenager, I worked at a video-rental chain and, it would surprise you to know, that we took much better care of our data on video rentals than the police do with information that impacts your personal freedom.


That's because if you insisted on collecting fines from people who had already paid, you would lose customers. Police get to choose their customers, and the customers have no (short of moving) over the process.
1.14.2009 2:59pm
Ugh (mail):
So the court basically ruled:

1. Your constitutional rights were violated.
2. However, because the remedy to such a violation would not keep the police from violating your constitutional rights in the future,
3. You're not entitled to any remedy.
1.14.2009 3:04pm
LoopFiasco:
Big surprise. Supreme Court opens another avenue for further erosion of the Fourth Amendment (if not in this case, surely the next 10 that come up citing it as precedent) and Orin Kerr doesn't have a gripe.

We take as given that the government agents violated the 4th amendment. We have an exclusionary rule that is already filled with numerous exceptions. We have a frickin constitution that purports to secure the blessings of liberty.

We have government agents that violate the highest law of the land (the constitution) and the highest court in the land says okie dokie. We shall remove from consideration any penalty for said action because that won't deter the specific level of negligence/police mistake in this one example.

If you think for one second that this will not help eviscerate the 4th amendment even further than it already has been you are not living in reality.

Practice in Chicago like me. Watch how the prosecutors and police work together to make sure their suppression motion testimony matches whatever exception they are going for to a tee - despite what the police report created the day of the arrest says - watch it over and over and over and over and then ask yourself WTF is the point of even having a defense attorney?

Tell your client, "ya, we did it." The cops violated your constitutional rights and we proved it. However, if we take your case to trial you are looking at 20-40, if we take 10 on the plea, you might get out in time to see your youngest kid graduate."

"Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example."

"Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring a terrible retribution. Against that pernicious doctrine this court should resolutely set its face…" J. Brandeis, Prohibition era.

Please ban me from this site so I can't read this pseudo federalist society/cosmo-tarian bullshit anymore.

What's next, a libertarian analysis of the success of the war on drugs?

Whit, my police rant isn't aimed at you as you seem like a smart, reasonable officer with a level head. And Professor Kerr, I know this is cliche and you don't care anyway, but the effects of these decisions are NOT academic. They are literally life and death. Get out of the classroom, get off the amicus briefs and appeals and get into a large city trial room. See how this plays out.

asdkl;fjkl;asdfjkl;sadfjkl;afsjkl;adfjkl;asdjkl;sdf;ajkl;
me beating keyboard ^
1.14.2009 3:25pm
Oren:

If in fact the erroneous entries are fairly rare, then I really don't have a problem with the ruling. This isn't a case where the police are filling up a database with erroneous information in order to provide pretexts for arrests (and searches incident thereto).

I agree in principle, but there is gray area between deliberate misinformation and good faith -- to wit, the failure of the police department to implement basic data integrity procedures that are taken for granted everywhere in the IT world. Like I said in my previous posts, even the video rental chain does more auditing and verification than seems to be the case here.

IOW, there is a difference between making a mistake in the course of normal operations and negligence in the design of a system that makes those mistakes more likely, if not inevitable. We should apply the same IT standards to police handling of warrants that banks apply to those doing electronic transactions -- if they have applied those standards then I'm willing to excuse the error.
1.14.2009 3:28pm
PatHMV (mail) (www):
hattio, in my experience not a single one of those generalizations you make is true when looking at the vast bulk of the people to whom you apply them. I knew a lot of very mousy criminal defense attorneys who were mostly looking to make a bit of money and go through the motions of defending folks. Still more were very decent people, doing their job properly, pressing the prosecutor hard to make sure the evidence is really there (and lawfully collected), without descending into asshole territory. Most of the prosecutors I know are really trying to do the best they can, putting on the best case they can with the (in reality) fairly limited resources which can be devoted to most cases.

Yes, high profile criminal defense attorneys tend to be cocky assholes who actually seem to prefer criminals to honest citizens. And yes, there are some high profile cocky, over-zealous prosecutors. But do those generalizations apply to even the majority of defense lawyers and prosecutors? Not in my experience.

@ugh. Your #3 is wrong. It should read: "3. You're not entitled to keep the court from seeing the evidence of your crime because the database was wrong. You will have to seek a remedy for the violation of your rights in another forum."
1.14.2009 3:29pm
Mister Big Top:
LoopFiasco said:

"Please ban me from this site so I can't read this pseudo federalist society/cosmo-tarian bullshit anymore. "

I didn't realize anyone was forcing you to come to this site.
1.14.2009 3:31pm
PatHMV (mail) (www):
LoopFiasco: Not all jurisdictions are as corrupt as Chicago apparently is. Why should the misconduct of cops and prosecutors in one large corrupt city affect the Constitution as its applied in the rest of the country, where such problems are not (in my experience) nearly as frequent?
1.14.2009 3:32pm
Oren:

And Professor Kerr, I know this is cliche and you don't care anyway, but the effects of these decisions are NOT academic. They are literally life and death. Get out of the classroom, get off the amicus briefs and appeals and get into a large city trial room. See how this plays out.

FWIW (not that I like feeding the trolls), but Prof Kerr was a prosecutor for a little while, so I think he knows his way around a courtroom.

At any rate, you can disagree with his conclusion (I certainly do in this instance) without imputing ill motive.
1.14.2009 3:32pm
Soronel Haetir (mail):
PatHMV,

Unless I am mistaken, hasn't your alternative remedy route already been foreclosed for those who are actually convicted in relation to whatever action is under consideration? And as noted above, retaliation is enough of a problem that trying civil remedies against the police is a dicey proposition at best.
1.14.2009 3:37pm
Oren:

Most of the prosecutors I know are really trying to do the best they can, putting on the best case they can with the (in reality) fairly limited resources which can be devoted to most cases.

On the other hand, most prosecutors will acknowledge that there is immense pressure from higher up on the food chain (aka: political appointees) to secure convictions and that is perilous to ones career not to deliver.
1.14.2009 3:38pm
hattio1:
PatHMV,
You and I must have different threshholds for "asshole." By the way, I fully put myself in the "cocky assholes who have a problem with authority" camp. Let me ask, what percentage of people generally would you call cocky assholes. I'd put it between 10-25%. But, like I said, I have a pretty low threshhold and consider myself in that camp. If we're talking litigation attorneys (well, trial attorneys), I'd put it North of 75%
1.14.2009 3:45pm
PatHMV (mail) (www):
Soronel... so? The remedy is legally available. There are many legal remedies which are available but which require those seeking such remedies to make unpalatable choices (including spending oneself into poverty through legal fees). Why must we provide a zero-cost remedy for criminals whose crimes were discovered primarily as a result of some unintentional misconduct by the police?

The fact that the alternative remedies do exist means that they can be used, should the problem become sufficiently widespread as to need deterrence.

Oren... that depends entirely on the jurisdiction and the character of the elected official or political appointee. In some places that is true, in other places it's not.
1.14.2009 3:45pm
PatHMV (mail) (www):
hattio... the biggest cocky assholes I know tend to be litigation attorneys, true. But that doesn't mean that most criminal defense attorneys are cocky assholes. I tend to remember the cocky asshole attorneys more clearly, because they made my life more miserable (or insulted me personally just for doing my job), but in terms of actual numbers, your experience is not my experience.
1.14.2009 3:47pm
Ugh (mail):
PatHMV: @ugh. Your #3 is wrong. It should read: "3. You're not entitled to keep the court from seeing the evidence of your crime because the database was wrong. You will have to seek a remedy for the violation of your rights in another forum."

or maybe: "Despite the fact that this evidence was obtained in violation of your constitutional rights, we're going to use it to put you in prison anyway."
1.14.2009 4:05pm
Lior:
Prof. Kerr: this was based on the opinions description of themselves, not of the excerpts you posted.

The following quote from Ginsburg's dissent (page 18 of the slip opinion from the Court website) is what triggered my remark:
In my view, the Court's opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement.


Thereafter, her dissent is devoted exactly to that: making a policy judgment weighing the costs and benefits to society of excluding the evidence at hand. The majority opinion is entirely in the same vein, except that they come to a different cost-benefit conclusion. Many opinions like to start with the quote "We start, as usual, with the language of the statute". Yet, this opinion does not discuss the language of the rules of evidence. It discusses previous opinions, as if they were "the statute". In reality, it quotes the previous opinions because the court is continuing a policy debate that has been going on within its ranks for about a hundred years. That's a fine debate, but opinions of the supreme court are not the place for a policy debate on the rules of evidence.

If this is not "legislating from the bench" then I don't know what is. If exclusion of evidence is the appropriate remedy, with the scope of the rule dependent on the potential deterrent effect in each instance, then let Congress enact a law explaining the cost-benefit calculation to be done by the court handling the evidence.

In fact, Congress has fashioned a remedy to violations of the 4th Amendment (section 1983). Moreover, Congress has enacted the Federal Rules of evidence, where an exclusionary rule could have been included, if Congress thought it was desired. They may have omitted

Congress's remedies may be sufficient, or they may not. They may be good or bad. But both the majority and the dissents are not interpreting the legal scheme created by Congress, subject to the Constitution. They are debating the costs and benefits or a legal scheme of the Court's own creation.

To me, such a discussion is not a "legal opinion". It would make for an interesting law review article about developing Federal Law, but not for a judicial opinion stating what the law is.
1.14.2009 4:07pm
PatHMV (mail) (www):
Ugh... your rephrasing is at least more accurate than the original.

As Orin notes in a more recent post on this topic, it's not really clear that the defendant's 4th Amendment rights were actually violated here. Was this search "unreasonable"? Personally, I think it was reasonable, given the totality of the facts.
1.14.2009 4:11pm
Greg Q (mail) (www):
Nick056,

I've got a news flash for you: Constitutional Rights don't only exist for the purpose of protecting criminals.

The 4th Amendment wasn't passed because the Founders were upset about guilty people being caught w/o the proper paperwork being done before hand. It was passed to keep the government from breaking into innocent people's homes. We protect the guilty because we can't protect the innocent w/o also protecting the guilty.

So yes, a civil suit by a non criminal most certainly is a good remedy to the violation of Constitutional rights.
1.14.2009 4:32pm
Greg Q (mail) (www):
Orin,

Finally, it's interesting that Justices Ginsburg and Stevens (and perhaps Souter and Breyer) didn't seem to give any deference to the Evans precedent. I'll have to look more closely at this issue, but it seeems that they endorsed the approach of the Evans dissenters rather than the Evans majority and would not give the majority opinion any stare decisis effect. That's my initial sense, anyway — do others read the Ginsburg dissenting opinion differently?

That was actually my first thought when reading this post: So much for stare decisis. I don't care whether the facts match Evans or not. The issue here is that the four left wing "Justices" completely ignored the majority opinion, and voted based upon the losing opinion.

If they're free to ignore a majority opinion they don't like, I see no reason why any other Justice should feel bound to honor a majority opinion (cough Roe cough) that he doesn't like.

The "broader conception" of the Exclusionary rule lost. If stare decisis has any meaning, then the fact that you were on the losing side of that one doesn't matter, you're still bound to honor that decision. They don't give a damn what the majority ruled, all the four disenters care about is getting their way.
1.14.2009 4:47pm
Soronel Haetir (mail):
PatHMV,

You still haven't answered the question about how pervasive the errors need to be before the problem is considered systemic. Coupled with the comment above regarding judges not even allowing evidence of systemic errors to be introduced, I would have to say the threshold needs to be quite low. This is where I have problems with the balancing approaches taken in these cases, along with Scalia's comment on police professionalism, it forecloses examination of whether there even is a problem.
1.14.2009 5:07pm
whit:

the courts ruled
1. Your constitutional rights were violated.
2. However, because the remedy to such a violation would not keep the police from violating your constitutional rights in the future,
3. You're not entitled to any remedy.



false. they did not say he wasn't entitled to ANY remedy. they said he wasn't entitled to the remedy of SUPPRESSION.

as has been pointed out umpteen times - there are other remedies. there is this whole area of law (the civil side) i have heard about where people can like sue and stuff for violation of rights, and when they are wronged by the Man (tm).
1.14.2009 5:28pm
whit:

LoopFiasco: Not all jurisdictions are as corrupt as Chicago apparently is. Why should the misconduct of cops and prosecutors in one large corrupt city affect the Constitution as its applied in the rest of the country, where such problems are not (in my experience) nearly as frequent?


i agree. it seems frequently here (maybe some dudes work there), the example of chicago is brought up in relation to various and sundry evils that the constabulatory so routinely commit.

considering chicago's reputation for corruption in GENERAL, all the way up to the highest levels of govt. (and extending to the governors office), maybe it is true that CPD sux.

otoh, it appears that every aspect of politics and governance associated with chicago has mass suckituge... our current president elect notwithstanding of course :l


That's because if you insisted on collecting fines from people who had already paid, you would lose customers. Police get to choose their customers, and the customers have no (short of moving) over the process.



two points. one, i have no direct idea how good the police technology is in ferreting out bad warrants, etc. i know, at least from my experience in my agencies, it's rare. but sure it happens. i do know that govt. agencies in general and police certainly count are TERRIBLE at efficiency, and usage of modern technology. i am the hugest critic of the total lack of efficiency and usage of technology that would make our job safer, more precise, more efficient, etc. that's because govt. has no profit motive, so no incentive to increase efficiency. more efficient police work just means a smaller budget. it's a perverse incentive in govt. work to increase efficiency.

in areas that have elected law enforcement (as opposed to appointed police chiefs), the citizenry HAS a say. think an elected sheriff like the famous joe arpaio etc.
1.14.2009 5:39pm
whit:

With whom do the police work more closely, prosecutors or defense attorneys?



you miss the point. see: selection bias.

in the cases that GO TO TRIAL, of course the police are generally going to be witnesses for the prosecution, since these are the cases the prosecutors choose (and the cops end up filing) cases where the investigation leads to strong evidence.

any scene i am at, where my investigation reveals no crime, or a false complaint, or a mistaken complaint, i have effectively worked for the defense of the suspect, but that case never GETS to trial.

this happens all the time.

iow, the cases the prosecutors CHOOSE (and those are only chosen among the select that get sent to the prosecutors office in the first place) are usually those cases where most of the cops are going to be stronger prosecution witnesses than defense witnesses.

but we dont work FOR the prosecution and we often have plenty of evidence to provide that benefits the defense.

but again, the main point is that by the nature of the type of cases that PROSECUTORS *choose* to charge, the cops are going to be generally witnesses for the prosecution.

but most calls/cases don't even involve a charge being filed, and in many of those cases the investigation done by cops on scene (whether terry stop, or whatever) reveals either no crime, or insufficient evidence, or that an alleged victim is full of crap, or that a warning is sufficient, etc. etc.

none of these cases make it into the docket, so by only looking at charged cases, it gives the false impression that cops are on the side of the prosecutors or working for them.
1.14.2009 5:44pm
PatrickHenryof2008:
PatHMV says;



Moreover, it requires us to release into the public individuals whom we know to have committed crimes (often violent crimes), simply because the police officer made a mistake. That may be worthwhile to do if the officer acted in bad faith, or was willingly ignorant of the law, but if the officer acts in good faith, why should the criminal benefit from that? Why should the court refuse to consider true facts in that circumstance?


Who are these highly dangerous people being released under the exclusionary rule that you talk about? I want names! I'm expecting your next claim, to say that millions of dangerous people are released from the hands of justice as a result of this rule. Don't you think this talk is highly exaggerated? Especially when you consider that defense attorneys that can hardly get anything excluded anymore?
1.14.2009 7:12pm
PatHMV (mail) (www):
PatrickHenryof2008:

Do you dispute that some individuals who have committed crimes have gone free as a result of the exclusionary rule? I assert that there are some. I do not assert that there are "millions." The exclusionary rule, by its nature, is only applied when the government has discovered evidence of a crime committed by the defendant. If it had not discovered such evidence, the government would not be trying to have it admitted into evidence to begin with, so there would be no motion to exclude.

Contrarily, how many millions of individuals do claim would have their rights infringed if the court were to exclude evidence in cases where police have acted reasonably based on erroneous information provided to them by another office?

And have you ever considered the possibility that it's difficult to get things excluded these days because, well, the police are indeed better trained and have adopted better procedures, so that they violate constitutional rights less often?
1.14.2009 7:20pm
Oren:

i have no direct idea how good the police technology is in ferreting out bad warrants, etc. i know, at least from my experience in my agencies, it's rare. but sure it happens. i do know that govt. agencies in general and police certainly count are TERRIBLE at efficiency, and usage of modern technology.

Read the opinion on how the record was retreived in this instance. There was no auditing! Who the hell has a record keeping system with no auditing?

Moreover, you are quite correct that there is no incentive to be efficient. This goes doubly-so for data integrity. There is no incentive to ensure that you only have correct, timely information in your database and now, thanks to the Court, there is actually incentive to have incorrect or dated information in there.
1.14.2009 7:21pm
hattio1:
PatHMV says;

And have you ever considered the possibility that it's difficult to get things excluded these days because, well, the police are indeed better trained and have adopted better procedures, so that they violate constitutional rights less often?



I see the cases where the courts find a way to excuse the violations. Inevitable discovery, good faith. So no, it doesn't look from here like the police are more professional. Oh, I also see the case where their testimony at the suppression hearing exactly fits the exception they need...even though it conflicts with their complaint and/or police report. And I DON'T live in Chicago. So, if that's what you mean by a more professional police force, one that knows what testimony is needed to get the evidence in, then yeah, I guess I do think they're more professional.
1.14.2009 7:36pm
whit:

Read the opinion on how the record was retreived in this instance. There was no auditing! Who the hell has a record keeping system with no auditing?


sadly enough. lots of police agencies, or at least "shoddy auditing".



Moreover, you are quite correct that there is no incentive to be efficient. This goes doubly-so for data integrity. There is no incentive to ensure that you only have correct, timely information in your database and now, thanks to the Court, there is actually incentive to have incorrect or dated information in there.



i think it's going a bit far to say there's an incentive to have INCORRECT info in there. even if , in many cases evidence obtained from bad warrants is not going to be automatically suppressed under the exclusionary rule it does not therefore follow that that is an INCENTIVE. there are still disincentives, like wasting your time arresting somebody who in fact doesn't have a warrant, devoting resources to arresting the wrong person, and being open to CIVIL liability.

contrary to what some may believe, most cops and police agencies don't want to arrest innocent people.
1.14.2009 7:48pm
whit:

Read the opinion on how the record was retreived in this instance. There was no auditing! Who the hell has a record keeping system with no auditing?


sadly enough. lots of police agencies, or at least "shoddy auditing".



Moreover, you are quite correct that there is no incentive to be efficient. This goes doubly-so for data integrity. There is no incentive to ensure that you only have correct, timely information in your database and now, thanks to the Court, there is actually incentive to have incorrect or dated information in there.



i think it's going a bit far to say there's an incentive to have INCORRECT info in there. even if , in many cases evidence obtained from bad warrants is not going to be automatically suppressed under the exclusionary rule it does not therefore follow that that is an INCENTIVE. there are still disincentives, like wasting your time arresting somebody who in fact doesn't have a warrant, devoting resources to arresting the wrong person, and being open to CIVIL liability.

contrary to what some may believe, most cops and police agencies don't want to arrest innocent people.
1.14.2009 7:48pm
ReaderY:
I imagine this may be the last time some police departments ever remove stale or invalid warrants from their computers.

And the TSA has got to be breathing easier.
1.14.2009 7:53pm
Lior:
ReaderY: I can't remember if it's the majority or the dissent, but this thought has also occurred to the Court. Having a policy of not removing stale warrants from the computers would probably not be mere "negligence" on the side of the police, thus not covered by this ruling. This doesn't guarantee exclusion, but doesn't foreclose it either.
1.14.2009 8:20pm
PatHMV (mail) (www):
Applying the exclusionary rule here would not, in fact, encourage anybody to be cleaner with their databases. If the bad guy here isn't searched because he isn't arrested because the old warrant was properly cleared out, well then there's still a gun/drugs/whatever out on the street. If the invalid database entry leads to an arrest which leads to a search which leads to contraband or the gun or whatever, then there's a chance, at least, that the evidence will be admitted. Even if it's not, at least the illegal gun or the drugs or whatever is off the street, and the cops will know to look at this guy more closely next time he comes into contact with the system.
1.14.2009 8:59pm
LoopFiasco:
Yes, I realize I do not have to come here. Yes, I realize the Supreme Court works hard at making up prophylactic rules out of whole cloth when constitutional violations have no specific remedy mentioned in the constitution.

Look, if the Sup Ct wants to abolish the exclusionary rule,it should just do it.

If you think a civil remedy is adequate for 4th amendment violations, get a clue.

And saying, in response to my own questioning of Prof Kerr's libertarian bona-fides, 'he was a former federal prosecutor' please go on tour with the Kings of Comedy.

The 4th is about liberty is it not? Is not liberty a negative right (a restraint on govt)? Are the founders completely mad? They had a problem with so-called general warrants, etc... but now, in a new twist: We have the infinity warrant. You get a warrant, hire a lawyer to quash it, 3 months later get arrested on same said warrant and then have everyone 'shrug' and talk about whether some clerk or police officer acted merely negligently or recklessly negligent, or some other such gobbly-gook the judges (many of which are former prosecutors themselves) can use to deny a suppression motion with. Here is a novel idea in the land of the free: How bout we look at it from the defendants perspective, instead of the govts. He was free, he did what he needed to do at some point otherwise the warrant would have been valid, and he is de facto subject to arbitrary seizure whenever. Nice.

I imagine my view is warped because of my location and the crap i see, however, how easy is it in the era of multi-jurisdiction drug task forces and the rest that one jurisdiction would make an 'ooopsy' when they don't have P.C. for a legitimate warrant but just have a gut feeling that suspect X 'needs stopping.'

I will leave voluntarily of my own volition and come back in five years and cite my post above and all the new cases edging out the contours of 'police negligence.' Jesus christ, its like putting an alcoholic in charge of the bar. Is it that hard to see? Really?
1.14.2009 9:05pm
hattio1:
LoopFiasco says;

And saying, in response to my own questioning of Prof Kerr's libertarian bona-fides, 'he was a former federal prosecutor' please go on tour with the Kings of Comedy.


It wasn't in response to your questioning of Prof Kerr's libertarian bona-fides, but in your telling him to get some real experience in a courtroom, and not just in appellate courts. At least that's what I assume as I wasn't the poster who responded.
1.14.2009 9:10pm
Oren:

sadly enough. lots of police agencies, or at least "shoddy auditing".

Can you propose an effective way of ensuring that police depts properly audit and confirm their information so as to protect those with quashed warrants from unlawful arrest? I can't think of anything other than exclusion.

To be fair, as I said earlier in the thread, it's not automatic exclusion if there wasn't a warrant and there was an error but rather a searching examination of the procedure to see if it matches common standards in the private sector.



i think it's going a bit far to say there's an incentive to have INCORRECT info in there. even if , in many cases evidence obtained from bad warrants is not going to be automatically suppressed under the exclusionary rule it does not therefore follow that that is an INCENTIVE.


Correct. I withdraw that part of the statement (that

there are still disincentives, like wasting your time arresting somebody who in fact doesn't have a warrant
...
contrary to what some may believe, most cops and police agencies don't want to arrest innocent people.

No, but quite a few want to rummage through my car looking for guns and drugs and arrest me if they find 'em. IOW, it's not that they want to arrest innocents, it's that they want to go on a fishing expedition and play "catch and release" and arrest only the guilty.
1.14.2009 11:50pm
David Schwartz (mail):
Whit: Are you saying that police have no incentive to close cases? Or are you saying that police like to close cases with acquittals?
1.15.2009 12:17am
PatrickHenryof2008:
PatHMV,



Contrarily, how many millions of individuals do claim would have their rights infringed if the court were to exclude evidence in cases where police have acted reasonably based on erroneous information provided to them by another office?

And have you ever considered the possibility that it's difficult to get things excluded these days because, well, the police are indeed better trained and have adopted better procedures, so that they violate constitutional rights less often?


The only specific cases I really know of that appear to have been impacted by the exclusionary rule are certain drug cases, which generally are consensual offenses. I should note that I don't currently follow the courts current 'rationale' for the rule, so this might explain the discrepancy between the courts opinion, your opinion and my opinion. I'm not aware of a crime of serious harm against a actual person that was lost due to the rule. Exclusionary rule opponents generally like to portray that we have murderers wondering the streets killing with impunity because of the rule. I can think of the movie named Dirty Harry that seems to purport that. It seems that this is a scare tactic, and grossly exaggerated. I don't think the government has a right to just go into peoples living rooms, or arrest them without cause, even in so-called 'good-faith' (Shouldn't police be acting in 'good-faith' in every arrest or search?), and then prosecute for finding pot or for violating one of the many thousands upon thousands of laws. In my opinion, the use of evidence that is poisoned is a continuation of the violation. I don't think the police, legislature, or the courts have the authority to collect fines, and imprison off the governments own wrong (I know this is not the courts current 'rationale'). As for deterrence, I guess your arguing for me. The rule seems to have had great impact on the behavior of police. This may explain a lot of why defense attorneys are having trouble excluding things. I have my suspicion, that another reason, at least partly, is that many judges have a bias against excluding. SCOTUS seems to be leading the way on this view.
1.15.2009 1:07am
Oren:

Whit: Are you saying that police have no incentive to close cases? Or are you saying that police like to close cases with acquittals?

He's saying that "cases" is a biased measure because it only includes incidents in which the police determine that a violation of the law occurred. If they respond to an incident and determine that no law was broken, there is no case.

(At least that's what I understood him to be saying and we've gone a few rounds on this topic so I'm willing to bet I'm near the mark).
1.15.2009 11:19am
LoopFiasco:
For what its worth, I was aware that Prof. Kerr was a former federal prosecutor.

And I work with defense attorney's who were former (state) prosecutors who are just as serious about liberty as I am.

I have posted on this blog as a different name before, windycityatty, and I have griped at Prof Kerr on various issues relating to FISA, NSA, Supreme Court nominee selections and a whole host of issues.

This isn't to say he hasn't taken reasonable/pro-liberty positions on other issue's. Because he has. And he has worked on briefs, etc... in which he did fine work. I am not questioning his ability as he is more capable than I of doing what he does otherwise he wouldn't be in the position he is in. But I do sense (and this is admittedly pure speculation on my part) a bit of hesitance where it seems that he doesn't want to offend somebody somewhere - so he takes a middle of the road approach. I am more uncompromising as I see our country slide into more police-state mentality in theory, law and in practice.

I just like holding people's feet to fire. It's easy to be pro-liberty or pro 4th amendment when the issue is rather cut and dry. But there are times when tough choices have to be made between comity and liberty. I side with liberty 100% of the time. The comity will work itself out. When liberties are diminished, we never get them back.
1.15.2009 1:07pm
whit:
<blockquote>
He's saying that "cases" is a biased measure because it only includes incidents in which the police determine that a violation of the law occurred. If they respond to an incident and determine that no law was broken, there is no case.

(At least that's what I understood him to be saying and we've gone a few rounds on this topic so I'm willing to bet I'm near the mark).

</blockquote>

selection bias does come into play yes, in the field of "cases" (which are actually incidents that prosecutors see, and thus a determination was made that a crime did occur, that a suspect was identified, and that probable cause exists for that suspect).

also note that a closed case is defined as a case where an arrest is made, or charges are recommended (iow there is probable cause), or it is not closable because 1) it occurred in another jurisdiction 2) it was determined not to actually be a crime (usually happens before it gets to the "case" status but not always 3) the victim withdraws desire to prosecute despite the suspect being identified 4) the suspect dies.

i am sure i am leaving something out.

in no agency i have worked for did the dept. track or take any official notice of what happened to the case once it got into prosecutor's hands. iow, while some cops may (and do) take a personal interest (and many don.t and some desire acquittal or nolle pros and some desire convictiond epending on the case), i am not aware of any agency (none that i work for) that considers rate of conviction as a factor in any sort of performance evaluation etc.

frankly, i am the only cop i know who LOVES courtroom testimony. most cops never want to hear about a case again once they file it . they generally hate court, but like the overtime.
1.15.2009 1:15pm
whit:

Can you propose an effective way of ensuring that police depts properly audit and confirm their information so as to protect those with quashed warrants from unlawful arrest? I can't think of anything other than exclusion.

To be fair, as I said earlier in the thread, it's not automatic exclusion if there wasn't a warrant and there was an error but rather a searching examination of the procedure to see if it matches common standards in the private sector.



i don't have the specific knowledge or expertise to recommend how the changes could be made in THIS area of efficiency/precision. i can say that my experience in general is that police dept's are extremely inefficient (which is not so much an error of precision and having the correct info, but being extremely slow and getting/disseminating it very poorly), and definitely fail to use technology anywhere near how well the private sector does.

your average grocery store uses technology (bar code scanners, automatic inventory control etc.) that is unheard of in police dept.'s where most officers still operate in analog, HANDWRITE redundant info on tickets and collision and incident reports THAT IS ALREADY in a computer database, and repeat entry of the SAME data in multiple forms because the databases.forms have no way of replicating redundant data across formats.

it is a staggering shame how incredibly inefficient law enforcement are.

a cynical type could say this is a good thing, because if you value liberty you want cops to be as inefficient as possible :) .. but even i am not that cynical.



No, but quite a few want to rummage through my car looking for guns and drugs and arrest me if they find 'em. IOW, it's not that they want to arrest innocents, it's that they want to go on a fishing expedition and play "catch and release" and arrest only the guilty.



and that would be a decent argument for drumming up bogus pc but NOT bogus warrants. in most places i work, warrants are a mandatory arrest. iow, it's not just a license to search, but you gotta process, transport and book. doing that to a person with an invalid warrant is a waste of time, and again opens you up to civil liability.

it isn;t desireable.
1.15.2009 1:23pm
idonequodiura (mail) (www):
I think you are thinking like sukrat, but I think you should cover the other side of the topic in the post too...
1.19.2009 11:47am

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