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:
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.
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.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.
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.
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.
Related Posts (on one page):
- Assuming Violations of the Fourth Amendment and Then Deciding the Scope of the Exclusionary Rule:
- Responding to Tom Goldstein on Herring:
- Supreme Court Hands Down Herring v. United States:
- Oral Argument in Herring v. United States:
- ACS Supreme Court Preview:
- Herring v. United States, and "Who Are The Police"?
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.
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.
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...
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?
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?
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.
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.
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.
I live in Idaho where the Idaho Supreme Court rejected Leon under the Idaho Constitution so it probably won't have much effect here.
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.
Here's Breyer's third paragraph:
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.
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.
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.
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.
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.
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.
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.
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
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