The Exclusionary Rule Under Attack?

Those of you who have taken Criminal Procedure know about the exclusionary rule. The point of the rule was to prevent law enforcement and prosecution from getting the benefit of fruit of unlawful conduct. One of the major points is that law enforcement officers must be able to develop probable cause (of the type that would be sufficient for a warrant) before they can arrest an individual. Absent such probable cause, the arrest is unlawful, and evidence obtained as a result of that arrest, such as by a search, is thereby tainted, and cannot be used against the suspect at trial. Because the focus is on balancing prevention of unlawful conduct on the part of police on the one hand with justice on the other, one exception to the rule requiring the existence of probable cause, as developed over the years, is reasonable error on the part of judicial staff, e.g., a court clerk pulling the wrong arrest record or criminal record because of an input error in the computer record retrieval system.

In its just-announced opinion in the case of Herring v. United States, the United States Supreme Court held that reasonable error in police record keeping triggers an exception to the exclusionary rule. The New York Times reports on the underlying facts:

The case began when methamphetamines and a gun were found after Bennie D. Herring, an Alabama man, was arrested based on police officers’ mistaken belief that he was subject to an outstanding arrest warrant.

That belief was based on incorrect information in the computer files of a neighboring county’s police department. The warrant had been withdrawn, but the database had not been updated.

Calling the error “isolated negligence attenuated from the arrest,” Chief Justice Roberts said the lower courts had been correct in allowing the jury in Mr. Herring’s case to consider the evidence. He was convicted and sentenced to 27 months in prison.

The ruling itself is relatively narrow and is arguably merely a logical extension of a 1995 decision, Arizona v. Evans, which recognized an exception to the exclusionary rule for arrests resulting from erroneous computer records kept by court employees (as opposed to the police).

Tom Goldstein, one of Mr. Herrings defense lawyers, gave a more fleshed-out analysis at SCOTUSblog:

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.

The facts of the case, as described in these two articles, does not seem to suggest that there was bad faith on the part of Alabama police. However, one potential problem with extending the exception to police is that an agency, or some of its personnel, may become less careful, secure in the knowledge that good faith alone is sufficient to sustain use of evidence that would otherwise be inadmissible. That would seriously impede the development and professionalism of our law enforcement agencies.