When the Supreme Court granted cert in U.S. v. Herring last February, the product of a Stanford Law School litigation clinic student project, it raised some deep concerns.  For background, these are the facts via 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 But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier.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.

As the first Monday in October looms nearer, attention is beginning to focus on this case again, and where it might be heading.

In an article at Findlaw, courtesy of Bashman, Cal Davis Lawprof Vikram David Amar suggests that Herring might be the opportunity Justice Scalia has been looking for to finally put an end to the exclusionary rule.

Why, then, did the Court take the case? Perhaps because there appears to be some lower court confusion over the meaning of Evans and other exclusionary rule precedents. Or perhaps because the Court is interested in moving beyond those precedents, to forge new doctrine in this area. Since the Court (unlike lower courts) has the power to revisit and modify or overrule its own precedent, the question here is whether the arguments in favor of stare decisis – the presumption in favor of past rulings – have much force in this area.

In some contexts, we might stick with doctrines and rulings that don’t square with our deepest understanding of what the Constitution itself means and requires on the ground people have relied upon past rulings, and we don’t want people to be worse off for that reasonable reliance. But what reliance exists in the exclusionary rule setting? It seems incredibly unlikely that any criminal decides to break the law in part because he factors into his risk/reward calculus the possibility that evidence of his crime will be suppressed under the exclusionary rule.

Rarely will one find a lawprof’s writing that so fundamentally misses the point than here.  The reliance Amar questions isn’t limited to that of the criminal, but to all of us.  The public, as a whole, has a reasonable reliance that the police won’t violate our rights by searching and seizing people without a warrant. 

But aside from Amar’s antagonistic misunderstanding of the exclusionary rule, his point that it’s hard to understand why the court granted cert if not to do some greater harm to the rule has merit.  While the 11th Circuit’s approval of a search based upon an error by a court clerk could well be reversed based upon the fact that its all governmental action, and the rights of the people to be free from unreasonable searches should not be reduced by governmental incompetence, whether negligent or intentional, no one seems to think that the Supremes granted cert to reach that result.

The question then becomes, are the American people ready for a country without the exclusionary rule? 

The alternative method of vindicating the rights of a person subject to improper search is to sue the sheriff.  I don’t think this needs much discussion to say that no one believes that suing the cops every time they perform a bad search is going to provide an effective deterrent.  In fact, I don’t think anyone believes that this would likely happen.  What would you get as an award, $100 and a heartfelt apology for your 5 year long federal lawsuit?

Moreover, as the government sets its sights on white collar defendants, who face lengthy prison sentences under the advisory guidelines, the nature of concern for the criminal justice system as a whole shifts.  After all, a conservative is a liberal with a mortgage, and a liberal is a conservative under indictment.  As more conservatives face indictment, rules such as this become applicable to them, and they suddenly gain a sensitivity to the effectiveness of remedies to government overreaching. 

In the past, conservatives saw the exclusionary rule as a technicality exploited by criminals to go free because of some trivial error by police.  In response, it was argued that the 4th Amendment to the Constitution is no “technicality”, but this fell on deaf ears.  Today, however, the expansion of federal criminal attention and liability makes this “technicality” far more consequential to a far more powerful group than it once was. As major corporations, and their CEOs, stare down federal agents raiding their headquarters, the idea that they could do so at will rather than with a search warrant might be more than they could stand.  And these are the folks who finance election campaigns.

And what of the ordinary folks, the ones who haven’t done anything wrong and see no reason why police shouldn’t be able to search at will, since the only people they would possibly seize are the bad criminals, “those people,” who are of no concern to them?  As our many videos and posts have made incredibly clear, no one is immune from the kindly attention of the police.  You need not be one of “those people” to have your door knocked down, your children traumatized and your head bashed in, all in a misguided effort to get the bad guys.

With the exclusionary rule, the police still trample the 4th Amendment with regularity.  Without it, there will be nothing to slow them down, no less stop them, from riding roughshod.  The notion that civil damages is the route to go is laughable.  If anything, the more we learn about police efforts and errors, it appears that the exclusionary rule doesn’t nearly far enough to compel the police to think first.

But lawprofs don’t deal with the harsh reality of good citizens on the street harmed by a government that’s lost all sight of who it is here to protect.  Theory is the coin of the academic realm, and theory usually fails to account for its practical application to real world situations.  While Amar’s flip suggestion that the Supreme Court toss stare decisis out the window, as it has the power to do, and revisit the theoretical underpinnings of the exclusionary rule to the end of ridding constitutional jurisprudence of this judicially manufactured doctrine, may satisfy ideological purity, it will leave American society utterly exposed.

We have come to reasonably expect that there is a mechanism available in the course of a criminal prosecution to penalize the police for violations of our constitutional rights.  Without an exclusionary rule, there is no incentive for police not to violate the 4th Amendment.  The alternative, suing the cops (from your prison cell?) will give no officer pause from searching your car, home or body.  I cannot believe that society, no matter how conservative the majority may be, is prepared for cops without limits.

But then, if not to do harm to the exclusionary rule, why did the Supreme Court grant cert in Herring?