The Volokh Conspiracy - <i>Herring v. United States</i>, 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.

To read the rest of this post, click here.

  Consider how existing doctrine looks if you view "the police" as only referring to Officer Anderson, the officer who actually arrested and searched Herring. He acted perfectly appropriately, it seems. Having heard from the warrant clerk that a warrant existed, he not only acted in reasonable reliance, he quite possibly also had probable cause to arrest Herring ("quite possibly" because it's not entirely clear how the mistaken claim of a warrant can be factored into the probable cause analysis). From his standpoint, this was all a perfectly innocent mistake caused by someone else's inadvertent error. Under existing doctrine, the evidence comes in.

  On the other hand, try construing "the police" as a collective entity of the entire government. First, they no longer seem to have probable cause: if you took all the people who know about Herring and put them in a room, they would realize that they didn't have probable cause (at least based on what we know). Second, there is no longer reasonable reliance; "the police" as a whole weren't acting in reasonable reliance on some other entity, but rather had made the apparent error themselves. The evidence stays out.

  So what's the right answer? I'm not entirely sure, at least yet. However, my sense is that the answer that fits best with the rest of Fourth Amendment law is that "the police" should mean Anderson himself. That's clearly how probable cause determinations are traditionally made. What matters is what that arresting officer knew, or what the affiant wrote in the warrant application, not what was known to all members of the government if you imagined them all in the same room sharing what they knew about the case. Given that, it's not clear to me why you would treat the "reasonable reliance" issue differently.

  Second, I think you run into serious problems trying to identify who "the police" are if you start to go beyond the officer who actually made the arrest and conducted the search. For example, should warrant clerks count? Should clerk's offices count? Should officers in other states count? Police officers in other countries? Confidential informants? It may be possible to come up with an answer to these questions, but my sense is that it's actually pretty hard. I think the Justices might explore this issue and then in the end conclude that it's just not feasible to do.

  I think there are two major objections to defining "the police" as the individual officer. The first is the fear that agents of the state will act in bad faith. A corrupt police officer might tell another police officer that there's a warrant out for a suspect's arrest, and when the second officer arrested the suspect, the evidence would still come in. This is a concern, but it's also a concern in the warrantless context; one officer could always make up facts tending to create probable cause. But as best I can recall, I haven't seen any evidence that it is an actual (as compared to hypothetical) problem.

  The second argument is that an exclusionary rule is needed to encourage better government databases. But at least so far, I'm not convinced that there aren't easier ways to encourage better databases beyond an exclusionary rule. That's especially true because the folks that feel the brunt of the exclusionary rule are usually the individual officers in the field who make the arrest: Depending on the local government picture, they may have only limited abilities to pressure the computer database people to do better. The facts of Herring bring this out in particular; Officer Anderson in Coffee County probably can't push Dale County to do a better job with their database. Given that there is no particular incentive for governments to maintain poor arrest warrant databases, I'm unconvinced that suppression would be useful here.

  Anyway, those are my tentative thoughts. The case isn't going to be argued until the fall, so there's certainly more than enough time to change my mind.

	[Orin Kerr, May 14, 2008 at 7:50pm] Trackbacks 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. To read the rest of this post, click here. Consider how existing doctrine looks if you view "the police" as only referring to Officer Anderson, the officer who actually arrested and searched Herring. He acted perfectly appropriately, it seems. Having heard from the warrant clerk that a warrant existed, he not only acted in reasonable reliance, he quite possibly also had probable cause to arrest Herring ("quite possibly" because it's not entirely clear how the mistaken claim of a warrant can be factored into the probable cause analysis). From his standpoint, this was all a perfectly innocent mistake caused by someone else's inadvertent error. Under existing doctrine, the evidence comes in. On the other hand, try construing "the police" as a collective entity of the entire government. First, they no longer seem to have probable cause: if you took all the people who know about Herring and put them in a room, they would realize that they didn't have probable cause (at least based on what we know). Second, there is no longer reasonable reliance; "the police" as a whole weren't acting in reasonable reliance on some other entity, but rather had made the apparent error themselves. The evidence stays out. So what's the right answer? I'm not entirely sure, at least yet. However, my sense is that the answer that fits best with the rest of Fourth Amendment law is that "the police" should mean Anderson himself. That's clearly how probable cause determinations are traditionally made. What matters is what that arresting officer knew, or what the affiant wrote in the warrant application, not what was known to all members of the government if you imagined them all in the same room sharing what they knew about the case. Given that, it's not clear to me why you would treat the "reasonable reliance" issue differently. Second, I think you run into serious problems trying to identify who "the police" are if you start to go beyond the officer who actually made the arrest and conducted the search. For example, should warrant clerks count? Should clerk's offices count? Should officers in other states count? Police officers in other countries? Confidential informants? It may be possible to come up with an answer to these questions, but my sense is that it's actually pretty hard. I think the Justices might explore this issue and then in the end conclude that it's just not feasible to do. I think there are two major objections to defining "the police" as the individual officer. The first is the fear that agents of the state will act in bad faith. A corrupt police officer might tell another police officer that there's a warrant out for a suspect's arrest, and when the second officer arrested the suspect, the evidence would still come in. This is a concern, but it's also a concern in the warrantless context; one officer could always make up facts tending to create probable cause. But as best I can recall, I haven't seen any evidence that it is an actual (as compared to hypothetical) problem. The second argument is that an exclusionary rule is needed to encourage better government databases. But at least so far, I'm not convinced that there aren't easier ways to encourage better databases beyond an exclusionary rule. That's especially true because the folks that feel the brunt of the exclusionary rule are usually the individual officers in the field who make the arrest: Depending on the local government picture, they may have only limited abilities to pressure the computer database people to do better. The facts of Herring bring this out in particular; Officer Anderson in Coffee County probably can't push Dale County to do a better job with their database. Given that there is no particular incentive for governments to maintain poor arrest warrant databases, I'm unconvinced that suppression would be useful here. Anyway, those are my tentative thoughts. The case isn't going to be argued until the fall, so there's certainly more than enough time to change my mind. 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"?