From Adam Liptak at the New York Times, it didn’t take long for a district judge in New Jersey to answer the aching question of what Herring meant to search and seizure law going forward.

In one of the first trial court decisions to interpret Herring, a federal judge in New Jersey took the broader view, refusing to suppress evidence obtained from computer hard drives under a search warrant based on false information supplied by a Secret Service agent. The agent had told the judge that DVDs found during an earlier search contained child pornography.

This was false: other law enforcement officials had reviewed the DVDs and had found no child pornography. The agent, who was leading the investigation, testified that he did not know of that review when he made his statement.

“This conduct,” Judge Stanley R. Chesler wrote a week after Herring was decided, “while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.”

So while we were squabbling in the blawgosphere about whether Herring spelled the end of the 4th Amendment or was just another bump on the road toward the end, Judge Chesler took less than a week to weigh in with his view.

Notwithstanding all the detailed parsing and analysis that went into the opinions as to Herring’s significance, Judge Chesler went right for the throat, holding that seizure pursuant to a warrant issued on a totally false representation didn’t require suppression.  The language used by Judge Chesler couldn’t possibly be worse:  The police conduct “does not rise to the level of culpability.”  While Herring spoke to attenuated negligence, Chesler wants none of it.  The exclusionary rule only applies when the police engage in culpable conduct. 

The bad news is that it didn’t take long for the rationale of Herring to get turned on its head, shifting the focus away from violations of the 4th Amendment and onto the degree of culpable conduct by police, a grand vision of the good faith exception without any of those nasty little details that might put the brakes on the total evisceration of any penalty for violating the Constitution.  Judge Chesler had no interest in sliding down the slope.  He took a running leap to get right to the bottom.

To the extent that I surmised that no rationale judge could do exactly what Judge Chesler did here, I sure missed the boat (presuming, as I do, that Stanley R. Chesler is a rational judge).  On the other hand, this is from the District of New Jersey, not exactly a leading court when it comes to constitutional interpretation.  Sure, the rest of the country takes note of Jersey when it comes to critical things like haute couture and cutting edge chemical refineries, but not the law.

While this decision may not be of such consequence as to lead the rest of the nation down the path to perdition, it is certainly not the direction one would hope to go just a week after Herring.  And as for Judge Chesler, perhaps he might consider the deterrent benefits of search warrant applicants providing courts with accurate information?  Even in Jersey, minimal competence might be considered a good thing.

Side Note:  Norm Pattis posts about this article as well, noting that Liptak is no Linda Greenhouse.

I miss Linda Greenhouse’s reporting on the law in The New York Times. She has been replaced by a fellow named Adam Liptak. Liptak writes well enough for the Times, but his analysis rarely rises above the obvious, and he sometimes misses nuances that are important.

I think Norm’s just being nice to Liptak.  Given that Liptak’s job is to be the Times’ eyes and ears at the Supreme Court, having previously been the general legal columnist for the paper, it wouldn’t be too much to expect him to have a working knowledge of the substantive legal issues and the ability to discern the details and nuances that make a decision consequential.  Writing “well enough” isn’t good enough.

On a good day, Liptak barely scratches the surface.  On a bad day, he misses the point altogether.  That’s just not good enough, and there are a lot of people who get their information on the law via the New York Times, and assume that the Times wouldn’t screw it all up.  That’s a lot of ill-informed people.