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Whoops, I Did it Again; Can the Police Cut Down the Tallest Tree in the Fourth Amendment’s Forest With a Herring?

Odds are that in your lifetime you have spoken to a police officer. The 4th amendment of the Constitution outlines the basic guidelines governing that officer’s conduct towards you. If an officer strays from established 4th amendment principles, such as arresting you without probable cause, the exclusionary rule says the evidence obtained from the arrest is inadmissible in court. The Supreme Court considers the rule necessary to deter police misconduct.

But what if a police officer makes an honest mistake? Even if that mistake is thinking there is a warrant, when there really is none? Enter Herring v. United States. Currently under review by the Supreme Court, the case presents the interesting question of what happens when clerical error by the police results in an erroneous warrant that leads to an arrest.

On July 7th, 2004, Bennie Herring made the fateful decision to retrieve some property from his impounded vehicle. The Coffee County investigator who spoke with Mr. Herring asked his department if there were any warrants out for his arrest. The search came up empty, so the investigator did what any good investigator would do: he kept looking. He called neighboring Dale County and checked there. The records clerk—a police officer—told him there was a warrant out for Mr. Herring. Mr. Herring was arrested, and methamphetamine and a gun were found in his car.

However, Dale County’s records were incorrect, and no warrant actually existed. At Mr. Herring’s motion to suppress, the defense argued that there was no legal arrest and that the evidence against him should be suppressed. The trial judge ruled, however, that the good faith exception to the exclusionary rule applied in this situation. The Eleventh Circuit agreed, ruling that this particular mistake was not sufficient to warrant application of the exclusionary rule. The Supreme Court took certiorari and heard oral arguments, but has not yet made a decision on the merits. Legal commentators believe the Court will side with the government and uphold the conviction.

It is always dangerous to allow relevant evidence to slip away because an officer made an innocent mistake. On the other hand, it is also dangerous to allow the police more and more leeway to “make mistakes.” Regardless of where the decision ends up, it will be interesting to see if the Supreme Court enunciates a hard and fast rule outlining the extent of police error (or negligence) necessary to justify application of the exclusionary rule.

The record in Herring shows that in Alabama, the warrant computer system has a 13% error rate. (Meaning, more than 1 in 10 times officers were incorrectly told that the person they were inquiring about had a warrant out for their arrest). Amicus Curiae briefs for Mr. Herring cite increased police reliance on outside databases as reason to be wary of any decision that does not provide incentive to record keepers to keep their databases up to date. Although Justice Scalia may consider “the increasing professionalism of police forces” evidence that the exclusionary rule is becoming more and more obsolete, a decision for the government here could encourage police departments to become more lax in their record keeping standards. In this day and age of increased connectivity and dissemination of information between agencies, departments, and across state lines, such a decision could have far reaching consequences.

Ken LaMance


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