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Herring v. United States, and "Who Are The Police"? The petitioner's merits brief was recently filed in Herring v. United States, a really interesting Fourth Amendment case out of the Eleventh Circuit that will be argued before the Supreme Court in the fall. I wanted to offer some preliminary thoughts on the case.

  First, the facts. Coffee County police investigator Anderson observed a man named Herring, and developed reason to think that there was a warrant out for Herring's arrest. Anderson quickly called the Coffee County warrant clerk to see if there were any arrest warrants sworn out for Herring. The warrant clerk checked the county database but found no warrants. Anderson then asked the warrant clerk to contact the warrant clerk in nearby Dale County to see if there were any warrants in that county for Herring's arrest. The Dale County warrant clerk reported back to the Coffee County clerk's office that there was in fact an active warrant in Dale County for Herring's arrest. The Dale County warrant clerk then relayed that information to Anderson.

  The Dale County warrant clerk then looked through the county files for the actual warrant. When she couldn't find it, she called the clerk's office and learned that there had been a snafu: The warrant had existed but had been recalled, even though it had not yet been noted in the Dale County database. The Dale County warrant clerk called the Coffee County warrant clerk immediately to tell her that there had been a mistake; there actually was no warrant. Although only 10-15 minutes had passed since their earlier call, the call came too late. Anderson had already pulled over Herring and arrested him based on the belief that a warrant existed. A search incident to arrest revealed drugs and a gun, leading to criminal charges. In this case, Herring wants the drugs and gun suppressed as violations of the Fourth Amendment.

  Ok, on to the legal issues. At the heart of Herring is the question, "who are the police?" When the Supreme Court refers to terms like "probable cause" and the need for the exclusionary rule to "deter the police," is the relevant actor the single individual who actually conducts the search or seizure or the entity of police as a whole? And if you look at the entity as a whole, does that mean all the police in the county, the state, or maybe all of the police who were involved in the case? In one case, the police is a person; in the other, it's an entity.

  Why is this the heart of Herring? Under the Fourth Amendment, an arrest is justified if the police have probable cause to believe that a crime was committed and that the suspect committed it; also, reasonable reliance by the police on authority to conduct a search or seizure that later turns out to be false generally leads to admission of evidence. Under these standards, if you construe "the police" to mean the actual person who conducted the search or seizure then Herring should easily lose. On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.
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ACS Supreme Court Preview: The American Constitution Society's Supreme Court Preview Panel has been posted online. I ended up focusing my own remarks on Herring v. United States, which I have come to think will likely be a relatively easy victory for the government. See my discussion starting around the 57-minute mark for the reasons why.
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Oral Argument in Herring v. United States: The transcript is here. It was very engaging argument with two excellent advocates, Pam Karlan for Herring and Michael Dreeben for the United States, and the Justices were in top form. Karlan did her best in her opening argument, but Roberts, Alito, and Scalia were relentless. Mid-way through Dreeben's argument, it was looking like the case was over: The Justices were debating the best way to write the opinion to affirm. (When AMK starts asking what specific words the Court should or shouldn't use, it's usually a sign.) Pam had 8 minutes left for her rebuttal, but it was hard to get any traction by that point. Anyway, no major surprises on the merits: I thought the Justices focused on exactly the right issues. As I had suggested before, I think once the Justices really delve into the issues, it becomes a pretty clear win for the government.
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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?
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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.
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Assuming Violations of the Fourth Amendment and Then Deciding the Scope of the Exclusionary Rule: Today's 5-4 decision in Herring v. United States reminds me of a broader point about Fourth Amendment cases: If you like the exclusionary rule, you really really don't want the Supreme Court deciding the scope of the exclusionary rule in cases like Herring and Hudson v. Michigan in which the Court simply assumes without deciding that the Fourth Amendment was violated and then decides if suppression is an appropriate remedy. The atmospherics are all wrong in such cases because the Justice are looking at a fact pattern in which it's not clear that something actually went wrong. The defendant is left in the tough position of demanding exclusion of evidence of guilt when it's not really clear that his rights were violated in the first place.

  I think that's a tricky position to argue for two reasons. First, the absence of a clear violation makes the legal issue rather abstract: From the defendant's standpoint, you don't have the actual case of a clear harm to make the deterrence argument more concrete. And second, the assumption that the Fourth Amendment was violated when it's not clear it actually was leaves the impression that maybe the Fourth Amendment is so easily violated that the court needs to limit the suppression remedy to keep things balanced. Under existing law, the Supreme Court takes a balancing approach to the exclusionary rule, imposing suppression when needed for deterrence. The more the Fourth Amendment is violated, however, the greater role there is for balancing.

  Assuming a violation below when one might or might not exist tends to leave the impression that balancing is all the more important. It hints that the scope of the Fourth Amendment itself is starting to cover technicalities rather than core clear violations. I think this tends to invite more balancing, and with it more chipping away at the exclusionary rule.
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