The Supreme Court of the United States issued its decision in Herring v. United States, and the defendant lost.  I’m shocked.  Shocked!  Of course, I predicted this, yet so many others are indeed surprised by the decision and deeply disappointed.  But the impact of the decision has yet to be determined, dire rumors of the death of the 4th Amendment notwithstanding.

Orin Kerr at VC does a good job of dissecting the decision itself, with the majority written by Chief Justice Roberts and dissents by Justices Ginsburg and Breyer in the 5-4 ruling.  The majority:

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.

To add some critical details, the decision held that the wrong committed by a police clerk in failing to update the warrant database was mere negligence, rather than reckless or deliberate conduct, and that this negligent failure was “attenuated” from the search itself. 

Justice Ginsburg’s dissent took direct issue with the heart of the majority’s conclusion that the exclusionary rule, as a separate judicial remedy apart from the 4th Amendment prohibition, would not serve as a deterrent when the failure was merely negligent:

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 quotation marks omitted). I share that vision of the Amendment.

Being of the view that Arizona v.Evans was terribly wrong, it’s easy to guess which side I come out on.  While negligent conduct lacks the aspect of malice that law and order types seem to need before attributing sufficient wrong to the police to mandate a remedy, my view remains that the right to be free of unreasonable search and seizure belongs to the people, as is not concession to the government’s good intentions.  If there is such a right, and the Constitution tells us there is, then its violation demands a remedy.  A right without a remedy is no right at all.

But does that mean Herring signals the death of the exclusionary rule?  Tom Goldstein at SCOTUSBlog believes it just might:

But in fact the majority’s reasoning is broader – much, much broader.  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.

If Tom is correct, and the Court’s Herring decision is read to disapprove of application of the exclusionary rule to all police violations of the 4th Amendment when done in good faith, then we have a big, big problem.  The issue of faith is largely outside the realm of hard proof, going to intentions and the workings of the police mind.  It becomes a rhetorical argument, where the side with the best spin to excuse or condemn the conduct wins the day.  Traditionally, the government’s spin always sounds better than the defendant’s.

Tom notes that the “attenuation” element of the decision, that the negligent police failure was in updating the database of warrants rather than directly related to the search itself, and that this point could provide a conceptual ledge to prevent a slide down the slope into a blanket good faith exception.  However, Tom has little faith that the decision will be read that way:

Thus, immediately after stating that “nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the [exclusionary] rule,” the Court’s opinion states that “we have never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than this.”  The latter phrasing omits any reference to the attenuation requirement (which is no accident), and I predict that it’s that one that is likely to be found controlling by the Supreme Court in later cases.

As much as I find the Supreme Court majority’s decision just fundamentally misguided, for many of the same reasons I believe Arizona v. Evans was wrong, plus the fact that the distinguishing argument there was that the negligence was by a court clerk, and here by the police themselves (not that I buy into the notion that one arm of the government has a lesser duty to adhere to the Constitution than any other), I don’t see Herring as being a watershed decision.

Indeed, I agree with Orin that Herring is a relatively trivial decision, fact-bound by a peculiar set of circumstances, heavily influenced by the attenuation aspect, since the admitted failing, sloppy and negligent record keeping by a back-office police clerk having nothing to do with the search itself, that will preclude its extension to some nefarious generalized “good faith” exception to the warrant requirement under any other circumstance.  They sky isn’t falling, in other words.

At the same time, the general principle set forth in Justice Ginsburg’s dissent is absolutely correct:  Mere negligence by the police violates a person’s right to be free from unreasonable search and seizure just as much as deliberate conduct, and it our rights that the 4th Amendment protects, not the cops “right” to search. 

The exclusionary rule can be used as an exceptionally effective tool in compelling police to create effective systems to avoid simple negligence and thus avoid searches based on the “Barney Fife Exception,” as Jdog likes to call it.  In this case, the exclusionary rule would be highly effective in holding police accountable for the sloppy performance of their function at the expense of the rights of citizens.  That sounds remarkably like a very good deterrent.  A substantial deterrent.

Harm caused by negligence is still harm, and we neither forgive nor excuse it in general.  Why then would we simply overlook it when the negligence is by police and a constitutional right is at stake?  The only answer is that a value judgment has been made by the majority, along the oft-quoted Cardozo approach (cited by the majority):

In such a case, the criminal should not “go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion of the Court by Cardozo, J.)

Of course, the value judgment was made long ago when the exclusionary rule became the remedy for 4th Amendment violations, first in Weeks and later in Mapp.  Certainly a believer in judicial modesty like Chief Justice Roberts and my favorite originalist, Nino Scalia, will remember this when next the exclusionary rule crosses their bench.

Update:  Scott Henson at Grits for Breakfast does a roundup of the practical blawgosphere’s reaction to Herring. Yes, a wee bit Texas-centric, but no reason to look beyond the borders of the Great Republic.  It appears that everyone is pretty much in agreement about that the message of the decision, though the ramifications vary wildly.  Is it the end of the world, a big yawner or something in between?

Scott closes with a funny:

Instapundit Glenn Reynolds offered an especially apropos analogy writing about the case in the New York Post :

COMEDIAN Steve Martin once explained how to make a million dollars without paying taxes. First, you make a million dollars. Then, you don’t pay taxes. If the IRS finds out, you explain: “I forgot.” Then, if that’s not enough, you say, “Well, excuuuse me!”

I think Steve Martin can be awfully funny.  Unfortunately, sometimes good jokes don’t make for good analogies.  This one doesn’t cut it at all as an analogy, but it’s still funny and worth repeating.