That different minds see things differently is axiomatic, but some minds are capable of envisioning a world that would make others stand up and take notice.  Via Grits for Breakfast, Kent Scheidegger’s post at Crime and Consequences is such an apocalyptic vision that it will make your hair stand on end.

After noting that Weeks and Mapp both involved flagrant violations,* he drops this bombshell:

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.

Wow. Is that a rule generally applicable to all motions to suppress? Must a defendant seeking to suppress evidence establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was no “deliberate, reckless, or grossly negligent conduct”?

Wait a second.  Could he possibly be on to something?  Is it possible that a court applying  Herring could hold that it places an affirmative burden on the defense to prove not merely a 4th Amendment violation (as admittedly existed in Herring) but an additional element of proof in order to invoke the exclusionary rule remedy?

At first blush, the answer of course is “nah, that’s not what it said.”  Kent ignores the attenuation language.  Kent hates the exclusionary rule, preferring instead a right without a remedy because it’s good for his political agenda. 

But he has a point, much as I hate to admit it.  Roberts’ language for the majority does suggest that the remedy, the only remedy, is contingent on proof that the violation was due to “deliberate, reckless or grossly negligent conduct.”  It says it right there in the opinion.  It’s not like he made this up.  Must this be proven?

The prosecution has the burden of production at a suppression hearing, but the defense has the burden of persuasion.  How exactly would the defense be capable of doing so under most circumstances.  What about the times the cops knocked down the wrong door.  Mere accident?  We can’t look into their minds, and we lack the ability to investigate what is really happening under the hood on the law enforcement side, since they rarely respond to our requests to chat about things. 

Even Kent sees this as a bit of a long shot, thankfully.

A lower court that wishes to be bold could certainly apply Herring this way. To do so would be no more violative of precedent that the state court decision affirmed in Roper v. Simmons, 543 U.S. 551 (2005). We could expect certiorari to be granted, and then we would find out if Herring really does have this sweeping scope.

And he then takes the ginormous leap to asking, if this were so, then why bother to have Mapp v. Ohio at all, since few would ever be capable of surmounting this mountain.  How he reaches the other side of this chasm is hard to fathom, apparently being too far fetched to be worthy of much explanation.  But still the imposition of this additional element, if some wag on the federal bench decided the time was right to take a stand, would make put the remedy out of reach in many cases.  Maybe even most cases.

Reading Kent’s take on Herring is like reading a bad anti-Utopian short story, one where a government purports to give us rights, but takes away any penalty for violating them.  If you thought Brady/Giglio was a joke, then imagine what Mapp would be if it was not presumed that unreasonable searches and seizures compelled remedial action.