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?