The Surpassing Significance of Herring
on Jan 14, 2009 at 11:32 am
By way of full disclosure, I was one of the defendant’s lawyers in the Herring case, though my involvement in it was very limited. I am not an expert on the Fourth Amendment, but my preliminary reaction is that we will at some point soon regard today’s Herring decision as one of the most important rulings in that field in the last quarter century. On its facts, the case is about the application of the exclusionary rule to errors in police recordkeeping. Narrowly framed, the question was whether the Court’s prior ruling that errors by judicial clerks do not trigger the exclusionary rule should be applied to police clerks. The Court holds that a negligent error by the police clerk does not give rise to exclusion. The dissents dispute the majority’s reasoning within that frame of reference – i.e., they treat the case as if it were only about police clerks and police recordkeeping.
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.
As I understand the Fourth Amendment, that is a significant shift in the Court’s jurisprudence, which itself follows on the Court’s signal in Hudson v. Michigan that it was considering a significant narrowing of the exclusionary rule. Previously, the Court had applied the good faith exception only to non-police conduct.  See United States v. Leon, 468 U.S. 897 (1984) (magistrate error in finding probable cause); Massachusetts v. Sheppard, 468 U.S. 981 (1984) (judge’s error in correcting warrant); Illinois v. Krull, 480 U.S. 340 (1987) (statute later declared unconstitutional); Arizona v. Evans, 514 U.S. 1 (1995) (court clerk error). The rationale of those cases was that exclusion would not “deter police misconduct.” Leon, 468 U.S. at 916. By contrast, the Court had made clear that when police officers “have engaged in willful, or at the very least negligent, conduct,” courts “refus[e] to admit evidence gained as a result of such conduct” in order to “instill in those particular investigating officers, or in their future counterparts, a greater degree of care towards the rights of the accused.” United States v. Peltier, 422 U.S. 531, 538 (1975). Note in particular the specific statement in Peltier that the exclusionary rule is triggered by negligence, which seemingly is largely repudiated today.
The one limitation on the Court’s opinion — and it will be the key to determining whether it reworks Fourth Amendment jurisprudence very significantly — is the Court’s statement that its rule applies to police conduct “attenuated from the arrest.” Those statements constrain today’s holding largely to the bounds of existing law. But the logic of the decision spans far more broadly, and the next logical step — which I predict is 2 years away — is abandoning the “attentuation” reference altogether.
Thus, immediately after stating that “nonrecurring and attentuated 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.
The likely coming change in the law is illustrated by the way ordinary exclusionary cases have operated for decades. Take Georgia v. Randolph, which I argued a few terms ago. The Court held that a wife could not consent to a search over the objection of her husband, who was present at the time. Such a search, the Court held, violated the Fourth Amendment. Everyone in the case understood that the officers’ violation of the Fourth Amendment automatically triggered the exclusionary rule. But in fact the reasonable belief of the officers that they could enter the house (given that the law was unsettled at the time of the search) would mean that the evidence seized would not be suppressed.
The rubber will hit the road in cases in which the officers’ error is one of fact, not law. Herring is such a case – the officer is said to have reasonably relied on the information provided by a police warrant clerk. But what about the more common circumstance in which an officer, based on information not provided by anyone else, negligently but erroneously concludes that probable cause exists. For example, the officer believes that an individual is wanted for arrest but doesn’t call to confirm that fact, or the officer believes that a bag contains marijuana but a closer inspection would have shown otherwise. In the past, those cases would have automatically triggered the exclusionary rule – the Fourth Amendment violation required exclusion.
No more, if the “attenuated” element is not taken very seriously. The same inquiry into good faith will need to be conducted in the hundreds (or more likely thousands) of other cases each year in which the police conduct a search in the absence of probable cause. All those cases may need to be looked at differently now. Under Herring, it seems to me that a court needs to consider whether the officer made a reasonable error of law (as in Randolph) or reasonable error of fact (in Herring and the ordinary traffic stop case). If the officer was merely negligent, from an objective perspective, the exclusionary rule does not apply.
How much the new rule makes a difference will also depend on how much daylight courts perceive between the probable cause inquiry itself (which already looks to what a reasonable officer would believe) and the added layer of the inquiry into the officer’s negligence. If Herring comes to be cited for the proposition that the defendant must affirmatively prove that the officer was reckless rather than merely negligent, then the exclusionary rule will apply much, much more rarely than it does today.
Interestingly, as I said, the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule – many thousands of cases – have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.
