Encouraging Incompetence: The Supremes Munch on Herring

For many, the exclusionary rule (the rule that says that evidence seized in violation of the 4th Amendment must be suppressed) is one of the bedrocks of criminal law.  For others, including some of our favorite Supreme Court Justices, the rule is a judicially-created stumbling block that rewards the criminal for the constables’ error.  We will soon see who is who in Washington, since cert was  granted yesterday in Herring v. United States.

The facts are described in this New York Times article :

In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.

Both the district court and the  11th Circuit rejected Herring’s argument.  The courts extended the “good faith” exception of United States v. Leon, 468 U.S. 897 (1984), which allowed searches based upon reliance of an ill-gotten search warrant because the basis for the exclusionary rule, to deter police from engaging in unconstitutional conduct, would not be served if the error was made by the court rather than the cops.

So now it comes to the Supreme Court, and we may be in for a very unpleasant surprise. 


In the 2006 decision to which the 11th Circuit referred, Hudson v. Michigan, five justices expressed deep reservations about the utility of the exclusionary rule. That 5-to-4 decision refused to apply the exclusionary rule to evidence found by police officers who burst into a Detroit man’s home to execute a search warrant without first knocking and giving the man a chance to respond. Justice Antonin Scalia’s majority opinion appeared written to solicit further challenges to the rule’s application.

The Herring case provides the court with the opportunity to divorce the exclusionary rule from the warrant requirement, where up to now the good faith exception was limited to reliance on a court-issued warrant.  But Herring may extend good faith to reliance upon inaccurate computer data, under the theory that the unconstitutional conduct of the searching and seizing officer would not be deterred by suppression since it’s not his fault that the information was erroneous.  This case may well be the hole in the exclusionary dike.


Often in the past, the Supreme Court’s acceptance of a criminal defendant’s appeal suggested that the court was inclined to overturn the conviction. But this appeal, Herring v. United States, No. 07-513, which was prepared as a student project of Stanford Law School’s Supreme Court litigation clinic, might turn out to be a case for Mr. Herring of “watch out what you wish for.”

Let this be a lesson for those lawprofs who want to teach their students a thing or two about the Supreme Court as well.

This potential extension of the good faith exception, and I emphasize “exception”, is that it rewards the government for maintaining a sloppy and erroneous database.  Indeed, if they diligently input negative information, such as warrants, traffic tickets, whatever, but are less than diligent about removing them, should they achieve far greater latitude in searches and seizures?  Essentially, the worse they do the job of deleting old or erroneous information, the more authority they have to exercise good faith in seizing people.

Chipping away at the exclusionary rule has been one of the favorite sports in Washington for a while now.  Remember Whren?  Without announcing that the rule itself has outlived its usefulness, the Court has crafted exception after exception to what was intended to be a straight forward incentive to live by the Constitution or suffer exclusion. 

The potential damage that Herring can bring to the rule is obvious.  Your constitutional rights (and mine) will become contingent upon the diligence (or lack thereof) of some clerk somewhere in the bowels of some government building somewhere who deletes (or doesn’t) information.  Should the Court separate the good faith of the cop on the street from the good faith of the data clerk, or is the clerk (and the clerk’s superiors?) under no obligation to get anything right, thereby conferring broad authority on the street cop to act in good faith on erroneous data? 

Given the implied connection of the “fellow officer rule,” where a cop enjoys the benefit of information he personally lacks but is entitled to rely upon through another cop, it seems that it should be a two-way street when it comes to being held responsible for maintaining an accurate database.  There should be no good faith benefit for the street cop when the counterpart in front of a computer screen is providing erroneous information.  After all, if the street cop enjoys the benefit of the fellow officer rule, then he should also suffer the detriment of the database error rule.  Only by imposing a cost will law enforcement have an incentive to maintain accurate databases and avoid search and seizures that we thought were prohibited by the Constitution.

9 thoughts on “Encouraging Incompetence: The Supremes Munch on Herring

  1. Nicole Black

    I just sent in my Daily Record article on this. My conclusions are surprisingly similar to your own. But–note that in 95 the court already decided that a court clerk’s error in failing to recall a warrant on the computer system was a “good faith” exception (Arizona v. Evans 514 US 1). This case is all about a law enforcement officer’s computer/clerical error, as opposed to a court clerk’s.

    Not much a distinction–especially not with the current court. I think it’s safe to say that the Ex. Rule will suffer yet another blow…

  2. SHG

    I should have mentioned Evans (another case that sucks).  But as you correctly note, that’s still on the court side, even though it’s a clerk rather than a judge.  This time we’re on the cop side of the government fence, and once we breach the fence, I don’t know how we ever go back.

  3. Other Steve

    Between this case, this term’s Virginia v. Moore, and 2006’s Hudson mentioned in the Times article, SCOTUS seems to be taking the wrong kinds of cases. Rather than articulating the particular protections the 4th Amendment provides, SCOTUS seems to be telling the police exactly how much the courts will cover for them when they violate the 4th Amendment.

    Herring is just one more example of SCOTUS taking the wrong kind of 4th Amendment cases. Shame on SCOTUS.

  4. SHG

    Taking the wrong kinds of cases?  It’s all according to what they want to accomplish.

    The flip side of the problem is that defendants seek cert only to become the delivery device for another crushing blow to 4th Amendment jurisdiction.  It must feel like being a lamb led to the slaughter, when all they want is a measly reversal.

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