Negligent police conduct does not require evidence’s suppression

Listen to this article

The exclusionary rule doesn’t bar evidence discovered after executing an invalid arrest warrant, provided the error was only negligent, and was attenuated from the arrest.

Chief Justice John G. Roberts wrote for the U.S. Supreme Court on Jan. 14, “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.”

At a minimum, the holding merely extends the court’s prior precedent in Arizona v. Evans, 514 U.S. 1 (1995), from errors by court staff to negligence by police personnel.

However, it could lay the grounds for a future holding that limits the exclusionary rule to deliberate and reckless police conduct, but not when a police officer is merely negligent.

The case began when Bennie Dean Herring drove to a county sheriff’s department in Alabama to retrieve something from his impounded truck.

An officer familiar with Herring asked the county’s warrant clerk to check if he had any outstanding arrest warrants. When she found none, he asked her to check with her counterpart in a neighboring county.

Informed that an outstanding arrest warrant existed in that county, the officer arrested Herring.

Based on evidence recovered pursuant to the search incident to arrest, Herring was charged in federal court with drug and firearm offenses.

The district court denied his motion to suppress the evidence, and the Eleventh Circuit affirmed, concluding that application of the exclusionary rule would not serve any deterrent purpose.

The Supreme Court accepted review and affirmed. Four justices dissented, with Justices Ruth Bader Ginsburg and Stephen G. Breyer both penning dissents.

Relying heavily on its precedents in both Evans and U.S. v. Leon, 468 U.S. 897 (1984), the majority acknowledged that a Fourth Amendment violation occurred, but concluded that the exclusionary rule did not compel suppression of the evidence.

In Leon, the court held that, when police execute a search warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted “in objectively reasonable reliance” on the warrant.

In Evans, the court held that the exclusionary rule does not apply when police reasonably rely on mistaken information in a court’s database that an arrest warrant was outstanding.

The court noted the three reasons supporting the holding in Evans:

(1) the exclusionary rule was crafted to curb police rather than judicial misconduct;

(2) court employees were unlikely to try to subvert the Fourth Amendment; and

(3) there was no basis for believing that application of the exclusionary rule would have any significant effect in deterring the errors.

In Herring’s case, the court extended Evans to cases where police personnel, rather than court personnel, were negligently responsible for the invalid warrant.

The court devoted only a footnote to the first rationale in Evans, merely pointing out that the court in Evans explicitly left the issue of police error unresolved.

Ignoring the second consideration -– whether police would be as unlikely as court personnel to subvert the Fourth Amendment –- the court explained at length why application of the exclusionary rule would not serve the purpose of deterrence.

The court wrote, “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.”

For support, the court cited Franks v. Delaware, 438 U. S. 154 (1978), in which it held that the inclusion of false information in an affidavit for a search warrant triggers the exclusionary rule, but only if the police officer was deliberate or reckless, not merely negligent.

Before concluding, the court cautioned that, if police are reckless in maintaining a warrant system, or make false entries, the exclusionary rule would “certainly be justified.”

But, with only a showing of negligence, the court affirmed the lower courts’ holdings that exclusion of evidence was not required.

Justice Ginsburg dissented, in an opinion joined by justices Stevens, Souter, and Breyer.

Ginsburg’s dissent contrasted the majority’s version of the exclusionary rule, with its emphasis on costs and benefits, with the “more majestic conception” of the rule espoused by Justice Stevens in his dissent in Evans, finding the latter more consistent with the Fourth Amendment.

“The Court maintains that Herring’s case is one in which the exclusionary rule could have scant deterrent effect and therefore would not ‘pay its way.’ I disagree,” Ginsburg wrote.

“Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means. Such errors present no occasion to further erode the exclusionary rule,” Ginsburg concluded.

Justice Breyer also wrote separately, in an opinion joined by Souter, but on very different grounds.

While Ginsburg’s dissent took issue with Evans, and relied almost exclusively on dissents, Breyer’s dissent assumed Evans was correctly decided, but was nevertheless distinguishable in the case of police errors, rather than court errors.

Breyer cited the same three rationales the majority opinion did for the holding in Evans, but reached the opposite conclusion in this case.

Quoting the majority opinion in Evans, Breyer found it provided good reason to distinguish between court and police errors: “Because court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime, they have no stake in the outcome of particular criminal prosecutions.” Evans, 514 U.S. at 15.

Analysis

In Wisconsin, the court’s extension of its holding in Evans from negligent errors by court personnel to police personnel merely reaffirms the status quo.

As far back as 1984, even before Evans was decided, the Wisconsin Court of Appeals reached the same conclusion as the U.S. Supreme Court did in Herring’s case. State v. Collins, 122 Wis.2d 320, 363 N.W.2d 229 (Ct.App.1984).

The court in Collins wrote, “The officer may rely on information received through police department channels that a warrant exists.” Id., 363 N.W.2d at 232.

However, Collins always has been subject to challenge based on the Wisconsin Constitution, because of a fundamental premise of the opinion that may not be valid.

The court in Collins assumed that the good-faith rule created in Leon applied in Wisconsin. However, although both Leon and Collins were decided in 1984, the Wisconsin Supreme Court did not adopt any good-faith exception for the Fourth Amendment until 2001. State v. Eason, 2001 WI 98.

Even in Eason, however, the court did not adopt Leon in its entirety, but qualified it by adding a requirement that the state show that the process used in obtaining the search warrant included significant investigation and review by either a trained and knowledgeable police officer or a government attorney.

However, the extra requirements that the Wisconsin Supreme Court imposed in Eason for search warrants cannot be practically applied in the context of an arrest warrant.

So, faced with the issue, the Wisconsin Supreme Court could either hold that the U.S. Supreme Court’s opinion in Herring applies equally to the Wisconsin Constitution; or it could hold that, in the absence of some extra safeguards equivalent to those required in Eason, it does not.

Former Wisconsin Supreme Court Justice Louis B. Butler, now a professor at the University of Wisconsin Law School, represented Collins as a criminal defense attorney in 1984, and sees the opinion in Herring as a significant change.

Like Justice Breyer in dissent, Butler viewed the distinction between police and court conduct as essential to the holding in Evans.

“That distinction is now limited, if not abolished,” Butler said in an interview.
In contrast, the relevant distinction now appears to be the nature of the error -– negligent or reckless — and the deterrence value of the exclusionary rule, Butler said.

Thomas C. Goldstein, of Akin Gump Strauss Hauer & Feld LLP one of the attorneys for Herring, noted the majority’s reasoning is broad enough to extend to all Fourth Amendment cases.

Goldstein wrote about the opinion at Scotusblog.com on Jan. 14, “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.” http://www.scotusblog.com/wp/the-surpassing-significance-of-herring/

The only limitation to such a broad interpretation that Goldstein found was the court’s statement that its holding applies to police conduct “attenuated from the arrest.”

However, Goldstein concluded, “But the logic of the decision spans far more broadly, and the next logical step … is abandoning the ‘attenuation’ reference altogether.”