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Responding to Tom Goldstein on Herring:
Over at SCOTUSblog, Tom Goldstein has a very different take than I do on today's Fourth Amendment decision in Herring v. United States. Tom writes that his "preliminary reaction is that we will at some point soon regard today's Herring decision as one of the most important rulings in that field in the last quarter century." I thought it might be worth explaining why I disagree and why I think Herring is a minor case.

  Tom argues that there is a part of Herring that could be read as a dramatic change in Fourth Amendment law by creating a general good faith exception to ordinary police conduct. (There is a good faith exception when the police get a warrant, but no such exception otherwise under current law.) Here's his argument:
  Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. "As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." Slip Op. at 9. "[W]e 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," the exclusionary rule does not apply. Id. at 12.
  The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.
  . . . The one limitation on the Court's opinion — and it will be the key to determining whether it reworks Fourth Amendment jurisprudence very significantly — is the Court's statement that its rule applies to police conduct "attenuated from the arrest." Those statements constrain today's holding largely to the bounds of existing law. But the logic of the decision spans far more broadly, and the next logical step — which I predict is 2 years away — is abandoning the "attentuation" reference altogether. . . .
  Interestingly, as I said, the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court's ruling is in fact far broader. According to today's decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer's objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.
  I read Herring quite differently. I think it's a narrow and interstitial decision, not one that is rocking the boat. In particular, I don't see it as suggesting a general good faith exception for police conduct. Such a position would be an extraordinary shift in Fourth Amendment law that would effectively overrule a ton of cases. That issue wasn't raised by the briefs or argument, however, so I don't see it as natural to read such a conclusion into the holding that pretty much just answered the question presented in the briefs. I think that's why the dissenters didn't sound the alarm: The decision was quite narrow.

  To the extent Tom is predicting that a future Supreme Court decision might someday change the law and cite Herring for support, even if Herring does not on its face indicate that reading, that's certainly possible. But if so, I think that will be a decision of the future Supreme Court, not today's decision in Herring.
Chris 24601 (mail) (www):
The fact that Roberts wrote it suggests it's importantish, doesn't it?
1.14.2009 2:49pm
Kedar Bhatia (mail) (www):
The phrase "attenuated from the arrest" is going to be important. The question will be whether lower courts interpret Herring only when the negligence is seperate from the arrest or whether they apply it to a broad spectrum of similar good-faith mistakes.

My feeling is that the Courts will apply it broadly but, either way, we should see the first cases apply he ruling within the next few months.
1.14.2009 3:00pm
Nick056:
Orin, I respectfully disagree.

The opinion restricts the application of the exclusionary rule to cases demonstrating either flagrant or reckless misconduct, or gross or systemic negligence. It does say it is not ruling out all potential clerical errors as triggering the exclusionary rule, but errors of that nature -- like every other action pursuant to a search and seizure -- presumbably only trigger the exclusionary rule if they fall into one of those four categories.

And as Goldstein argues, ths decision specifically constricts the application of the exclusionary rule on the basis that the arresting officer had a good faith belief in his authority under a warrant which did not in fact exist. This can easily be read so as to construe the good faith belief of a reasonably acting law enforcement officer as sufficiently powerful to restrict the suppression of evidence resulting from the exclusionary rule. The decision can be read this way because, unless I am mistaken, that is the precise majority holding: violation of the 4th amendment does not trigger the exclusionary rule, but a balancing test does; an officer acting in good faith, whose actions do not fall into one of several pre-defined categories, does not through his actions trigger the exclusionary rule; therefore, good faith is germane in the evaluation of the propriety of police conuct as it relates to the triggering of the exclusionary rule.
1.14.2009 3:06pm
hattio1:
Well,
I think it's a given that prosecutors will TRY to apply Herring broadly. The question is, will they succeed.
1.14.2009 3:20pm
Oren:


I think it's a given that prosecutors will TRY to apply Herring broadly. The question is, will they succeed.

Exactly right. Because the SCOTUS is pretty lax about policing the circuits, I get the feeling that Herring will be quite narrow in the 7&9CA and quite broad in the 4&6CA.

It's amazing how much different the law can be a few short miles away under the precedent of another circuit...
1.14.2009 3:30pm
SMatthews:
How does that square with your analysis that:

On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.

Didn't the Court view this as a police error?
1.14.2009 3:34pm
OrinKerr:
Nick056,

I can't see that reading without overruling decades of case law that none of the briefs or opinions even cite. And if the case is so important, how is that all four Justices missed this? Is your thinking that Justices Ginsburg, Stevens, Breyer, and Souter just weren't paying attention and didn't read the opinion as closely as you? Or maybe they saw this revolution in Fourth Amendment law and didn't see it worthy of comment?
1.14.2009 3:46pm
The Federal White-Collar Criminal:
I'm a little confused why the majority didn't draw any support (at least explicitly) from the fact that the police in Coffee County weren't even the ones who made the mistake. It is not obvious to me that entirely different police departments should be held responsible for one another's mistakes. Roberts hints that the distinction means that the police in Coffee County were not negligent when he mentions that they had never had reason to question a Dale County warrant before, but he never comes out and says that.
1.14.2009 3:53pm
methodact:
So the police are held to the mere spirit-of-the-law, and the lowly subjects, to the harsh letter-of-the-law?
1.14.2009 4:07pm
Mike& (mail):
Poll: How many defense lawyers here have won a 4th Amendment suppression motion in the past year? The past five years? (By "won" I mean that an appellate court did not reserve the trial court's suppression order.)

How many prosecutors have lost a 4th Amendment suppression motion in the past year? The past five years?

Debates over the exclusionary rule are becoming almost entirely academic.
1.14.2009 4:07pm
Realist Liberal:
The Federal White-Collar Criminal~


I'm a little confused why the majority didn't draw any support (at least explicitly) from the fact that the police in Coffee County weren't even the ones who made the mistake. It is not obvious to me that entirely different police departments should be held responsible for one another's mistakes. Roberts hints that the distinction means that the police in Coffee County were not negligent when he mentions that they had never had reason to question a Dale County warrant before, but he never comes out and says that.


I think the inherent problem with your argument is that decades of case law seems to assume that "the state" includes all police and prosecutors as one massive unit (which anyone in criminal law knows is not true at all). For example, if the police screw up and don't give the prosecutor a piece of exculpatory evidence, the prosecutor is the one who has to dismiss the case, not the police.
1.14.2009 4:08pm
Mike& (mail):
So the police are held to the mere spirit-of-the-law, and the lowly subjects, to the harsh letter-of-the-law?

While ignorance of the law is no excuse for us plebians, it is for our overlords. This is the case, even though the Constitution is (allegedly) the supreme law of the land.
1.14.2009 4:09pm
Kedar Bhatia (mail) (www):
I'm not sure the fact the fact that Coffee County officers had never questioned Dale Country warrants only made the negligence seem more sympathetic but I don't think the the separation doesn't carry much significance. If Dale County had made a really sinister mistake or if they had intentionally mislead Coffee County the exclusionary rule would still kick in, even if the error was entirely on Dale County's side.
1.14.2009 4:11pm
On The Ground (mail):
Orin, whatever you think of the opinion itself, surely you will agree that prosecutors will push to interpret it as broadly as possible: that is, the exclusionary rule is not triggered except in cases of "systemic error or reckless disregard of constitutional requirements." And surely you will also agree that some courts -- perhaps many courts -- will accept this interpretation. ("Yes, there was no probable cause, but Officer Smith was acting in good faith and made an honest mistake. Motion to suppress denied.") By the time the issue percolates back up to SCOTUS, how many defendants will have had their Fourth Amendment rights trampled by this "narrow and interstitial" decision?
1.14.2009 4:14pm
ba2 (mail):
To me the actual holding could apply only to narrow clerical errors or could stretch the Leon Good Faith exception to all cases: "To trigger the exclusionary rule, police conduct mustbe sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system." This will move us away from looking at objective conduct of the police to examining subjective motives all the time in suppression motions. This is not fun for a defense attorney.
I live in Idaho where the Idaho Supreme Court rejected Leon under the Idaho Constitution so it probably won't have much effect here.
1.14.2009 4:47pm
Nick056:
Orin, in Breyer's third paragraph, he discusses the expansion of the good faith exception in a wide variety of circumstances related to police error. He then casts the present decision as a move to thwart the exclusionary rule because police are apparently acting in good faith based not upon a court clerk's filings or reliance on a magistrate's issuance, but based upon a misinterpretation of their own records; the police generated a false document which they then took to be valid and used it as cause for an arrest.

Breyer is specifically saying this ties the good faith exception to the police's interpretation of their own records and record-keeping procedures. I think the point is addressed. The good faith exception can no longer be found only because police assume the validity of a warrant issued by a magistrate or because they rely on the constitutionality of law, but also because they rely on a warrant they themselves falsely generated. It's true that all the opinions were careful to cast the issue that only applies to clerical records, but let me ask you a question of the sort you posed to me: if this is a narrow, interstitial decision, what in Roberts expansive language beginning on paragraph 2, page 6, denies a court the ability to find good faith in a matter not relating to clerical accuracy, but other conceivable areas in which the officer has good faith in the validity of a warrant? After all, this situation is distinguished from Mapp, Silverthorne and Weeks because of the absence of deliberative or flagrant misconduct, evidence largely by the presence of a good faith belief.
1.14.2009 5:04pm
OrinKerr:
Nick,

Here's Breyer's third paragraph:

Other cases applying the "good faith" exception to the
exclusionary rule have similarly recognized the distinction
between police errors and errors made by others, such as
judicial officers or legislatures. See United States v. Leon,
468 U. S. 897 (1984) (police reasonably relied on magis-
trate's issuance of warrant); Massachusetts v. Sheppard,
468 U. S. 981 (1984) (same); Illinois v. Krull, 480 U. S. 340
(1987) (police reasonably relied on statute's constitutional-
ity).


You write that "Breyer is specifically saying this ties the good faith exception to the police's interpretation of their own records and record-keeping procedures. I think the point is addressed." I disagree: This is one sentence plus two citations on a different topic, namely the police/other distinction that is the point of his dissent.
1.14.2009 5:24pm
methodact:
And let us not forget those many court-honored marvelous returns from that near-magical use of pretext.
1.14.2009 5:34pm
SMatthews:
I think Nick gets it quite right, as does Goldstein.

I still don't understand how Orin squares the opinion with his initial view that Herring should win if this is considered a police error. The Court found it to be a police error, yet Herring lost.

Part of the problem is that Orin only tells us what the opinion doesn't do. He fails to tell us what, in his view, it does.
1.14.2009 5:37pm
PatrickHenryof2008:
It appears that the key distinctions of Leon, Krull, and Evans of a judicial violation, or legislative violation (unconstitutional legislation), from that of a police violation, which has always been the key concern of this rule, has been breached in this case. I think the exclusionary rule, as it has been in the past, is on life support once again. The question is will Justice Kennedy give it CPR in a upcoming case?
1.14.2009 5:51pm
Nick056:
Orin,

Breyer's consideration seemed mild, but it is still one sentence and two citations I find very much on point because it explains how the good faith rule, evoked in other alike cases only to excuse errors committed by departments other than the police, now applies to mistakes entirely made by police. In other words, he is noting that this creates a good faith exception even when the error is entirely among police officers. I fail to see how the section of my post which you quoted is unsupported by this passage. And the thrust of my argument is still that the majority language opens the door to extending these restrictions of the rule past clerical issues owing to an assumption of good faith.
1.14.2009 6:38pm
Kent Scheidegger (mail) (www):
I think Goldstein is largely correct, for reasons explained at Crime and Consequences.
1.14.2009 6:52pm
OrinKerr:
SMatthews writes
I still don't understand how Orin squares the opinion with his initial view that Herring should win if this is considered a police error. The Court found it to be a police error, yet Herring lost.
As much as I would like the Supreme Court to accept my framing of issues, they do not always do so. Strange but true,

Part of the problem is that Orin only tells us what the opinion doesn't do. He fails to tell us what, in his view, it does.
I am sorry if my blogging has been problematic: I try, but sometimes I cannot please all. I think the opinion does what Roberts says it does, for reasons Roberts says, as summarized in my first post today.
1.14.2009 7:41pm
OrinKerr:
Kent,

No fair - with civil libertarians eager to read Herring widely to show how scary The Court is, and with you eager to read Herring widely because you would prefer the law that way, I'm the only one who neither wants to scare people nor wants the law to change! ;-) Serisously, though, I'll take a closer look.
1.14.2009 7:49pm
methodact:
Ugh, fruit of the poison tree, as a deadlier new GMO crop.
1.14.2009 8:22pm
Bruce_M (mail):
I think Herring is a horrible opinion that encourages police negligence. Why should the police bother to purge expired/erroneous warrants from their computer databases? The computer says arrest X (and thus search incident to the arrest), so the cops arrest X. The fact that it was an objective mistake doesn't matter, the defendant can't suppress any evidence found during the search incident to the arrest, and now the police can arrest and convict more people. "Less criminals on the streets" in exchange for less Fourth Amendment protection (for the children!).

After today, I see no reason why any police department should spend more than $10 per year clearing old/expired/erroneous warrants out of their computer systems. Any erroneous arrest will be in the subjective good faith of the arresting officer.

The exclusionary rule should ALWAYS apply to a Fourth Amendment violation; the rule is implicit in the Fourth Amendment, which is wholly meaningless - a complete nullity - without it. We should not interpret our Constitution, especially those provisions that grant us protection from the power of the government, in such a way as to give it no meaning or effect.

All of these idiotic "exceptions" to the Fourth Amendment are ultimately a product of drug prohibition. We'll keep losing our rights until they're completely gone so long as prohibition remains the status quo. And once all our rights are finally vanquished, people will still be possessing, buying, selling, and enjoying drugs.
1.14.2009 8:47pm
SMatthews:
As much as I would like the Supreme Court to accept my framing of issues, they do not always do so. Strange but true


Understood. That happens. It seems, though, that it is not just a question of "framing." If you, an esteemed 4th Amendment scholar, think a police error should dictate a Herring victory, and then the Court finds that a police error does not dictate that result, that at least suggests to me (someone who knows much less about this) that something important might be going on.
1.15.2009 10:01am
methodact:
"[T]hat something important might be going on", indeed. This elevates the province of "good faith" to new heights. This appears to go beyond simply admitting constructive instruments such as blanket warrants.

It is almost as if, the Court, so fully aware of its own boatload of bad decisions, (made in good faith, of course), excuses those too. Even as one's bona fides are generally understood as having to be earned, this decision seems to accept good faith on its face.

Good faith might extend to a Bush administration's defense, with the mere cover of outside the law documents written by Gonzales, John Yoo, OLC, and other such instruments, that allegedly rendered the Geneva Convention "quaint". The hospital room discussion with Ashcroft and "the thing" we don't yet know, might be be rendered moot with good faith.

How could one possibly simultaneously possess both and good faith?
1.15.2009 12:14pm
methodact:
*mens rea
1.15.2009 12:16pm

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