Academic

On October 7, the Supreme Court heard argument on a significant Fourth Amendment issue ?- application of the good faith exception to the exclusionary rule ?- that could lead to a dramatic contraction in the primary remedy for Fourth Amendment violations. The case is Herring v. United States. A police officer arrested Herring after a police warrant clerk told the officer that there was an outstanding arrest warrant for him. In a search incident to the arrest, the officer found an illegal handgun and drugs. Unfortunately, the clerk was mistaken. The court that issued the warrant (for a failure to appear) had recalled it five months earlier. There being no warrant nor any probable cause for Herring?s arrest, it was plainly illegal.

The normal remedy would be to exclude the evidence found as a consequence of the illegal arrest. But the prosecutor convinced the lower courts to instead extend the good faith exception to the exclusionary rule.

In a 1995 decision, Arizona v. Evans, the Court refused to exclude evidence obtained from a similarly unjustified arrest when the police relied on an erroneous entry in an electronic database stating there was a warrant to arrest Evans. But the Evans Court emphasized that the source of the mistake there was a clerk employed by the court and the case reserved judgment for whether the good faith exception applies when the clerk is employed by the police. This distinction sounded narrow to the lower courts and they extended the good faith exception to reliance on errors by a police clerk.

But I think we are at the edge of a major change. To date, the court has kept the good faith exception fairly narrow, applying only when the police rely on errors made by judicial or legislative personnel. Admittedly, the Solicitor General?s argument in Herring is not broad: ?An isolated and negligent police clerical error in the maintenance of warrant records should not lead to suppression.? Nonetheless, if the exception also applies to mistakes the police made themselves, then I predict that there will be a good faith issue in every case of a Fourth Amendment violation.

First, if the Court won?t draw a line between police employees and judicial employees, it seems unlikely that the Court would draw a line between a sworn field officer and a police clerk. So, if a police officer can act in good faith on the error of a police clerk, she can likely act in good faith on the error of a fellow detective. Second, if we don?t exclude evidence when Detective A relies on a negligent but isolated error by Detective B, then I don?t see why we would exclude evidence when Detective B relies on her own negligent but isolated error. For example, if Detective B misreads the name on the warrant, it shouldn?t matter to exclusion whether Detective B makes the erroneous arrest herself or Detective A does. Finally, it also seems difficult to draw a line between good faith mistakes about the existence of a warrant and good faith mistakes about the existence of other facts relevant to the Fourth Amendment. Justice Souter made this point in the oral argument. Referring to the ?dent? the Solicitor General advocated for the warrant requirement, he said: ?I don?t see . . .  why coherence would not require us to make the same dent in the probable cause requirement for equally isolated mistakes.?

In sum, if police erroneously and negligently believe they have probable cause or exigent circumstances justifying a warrantless search or arrest, a ruling for the government in Herring will pave the way for saying that there is no exclusion if the error is isolated (or there is no evidence that it is not isolated). The case may therefore offer a way to eliminate the presumption that evidence obtained from or because of an illegal search is excluded and to replace it with a presumption of admissibility, absent proof that the Fourth Amendment violation was systematic (rather than isolated) or intentional (rather than in good faith).

Perhaps my chain of reasoning seems attenuated given how the Solicitor General, as a good advocate, asks only for a marginal extension of the law. But note a point Chief Justice Roberts made at the argument: ?It may be an illegal arrest, but the question is the separate one of whether or not you exclude the evidence collected incident to arrest. . . . I guess it?s difficult for me to see if no one has done anything wrong, no one, why would you suppress the evidence in that case?? Given that the question posits that the arrest is illegal, Roberts is using ?wrong? to refer something beyond a violation of the Fourth Amendment, something like the violation being systematic or intentional. He is questioning exclusion as a remedy when the police have committed only an isolated and negligent violation of the Fourth Amendment

Would it be a good idea to limit the exclusionary rule in this way? Having written a lot to explain the doctrinal importance of the case, I will save the normative question for another day.