Exclusionary Rule

In this post, I’m going to take issue (a bit) with some comments Bruce Schneier included in his February 15 version of Cryptogram.

The post was about the Supreme Court’s recent decision in Herring v. U.S. 129 S.Ct. (U.S. Supreme Court 2009).

The facts in the case are very simple: a police officer did a warrant check on Bennie Herring to see if there were any outstanding warrants for his arrest. The officer checked with a warrant clerk who worked for the county and she said there was an active warrant for Herring’s failure to appear on a felony charge.

The clerk faxed a copy of the warrant to the officer. The officer found Herring and arrested him on the basis of the warrant; he also searched Herring under an exception to the 4th Amendment’s warrant rule called “search incident.” U.S. v. Herring, supra. As I explained in an earlier post, the exception is based on the premise that it’s reasonable to let an officer search a person he arrests for officer safety (find any weapons that could be used against the officer) and for the preservation of evidence (find any evidence on the person). In this case, the officer found methamphetamine and a pistol in Herring’s pocket. U.S. v. Herring, supra.

Herring was charged with possessing the drugs and the pistol, but moved to suppress the evidence. He pointed out that after the arrest, the officer learned that the warrant clerk had been wrong; the warrant the officer relied on in arresting Herring had been recalled, which meant it didn’t exist anymore. U.S. v. Herring, supra. Since it didn’t’ exist, the warrant didn’t justify the arrest.

Herring argued, quite reasonably, that the government shouldn’t be able to use the evidence it found during the search incident to what proved to be an invalid arrest. Basically, he was saying that since the officer really didn’t have a 4th Amendment justification for searching his pockets, the government shouldn’t be allowed to use what they found. U.S. v. Herring, supra. In other words, Herring argued that the exclusionary rule should apply here. As I assume we all know, the exclusionary rule is the device we use to enforce the 4th Amendment: If police violate the 4th Amendment, they can’t use the evidence they find; it’s excluded as a sanction, as a way of saying that police have to follow the 4th Amendment.

Herring lost. In an opinion by Chief Justice Roberts, the Court held that it was not appropriate to apply the exclusionary rule in this case because the officer did not deliberately violate the 4th Amendment. Justice Roberts noted that to “trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it”. U.S. v. Herring, supra. He explained that “the exclusionary rule serves to deter deliberate, reckless, or grossly negilgent conduct, or in some circumstances recurring or systemic negligence.” U.S. v. Herring, supra.

Since the conduct in this case was simply a goof up – an isolated instance of simple negligence – the Court did not think the application of the rule appropriate because there was no intentional conduct to deter. U.S. v. Herring, supra. To put it another way, the Court found that if police don’t know they’re violating the 4th Amendment, there’s no reason to exclude the evidence they obtain by doing so.

That brings me back to the Cryptogram post. Schneier notes that by not applying the exclusionary rule in this case, the Supreme Court “missed an important opportunity to motivate the police to purge errors from their databases.” Other comments in the post lead me (perhaps incorrectly, and if so, I apologize) to get the impression that Schneier thinks that ANY mistake will excuse police from having to comply with the exclusionary rule.

I’m going to assume I’m correct, and explain why I don’t think this is what the opinion actually does. I’m not a fan of Justice Roberts, but I don’t really think he’s off base in this opinion; I don’t think it will have the effect Schneier seems to assume it will have.

At the beginning of the substantive portion of his opinion, Justice Roberts notes that when

a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase `probable cause’ confirms that the Fourth Amendment does not demand all possible precision. . . . For purposes of deciding this case, however, we accept the parties' assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied.

U.S. v. Herring, supra. I’m not sure why the Court did this, and to explain why I’m not sure I have to talk a bit about another 4th Amendment principle.

As I’ve explained before, the 4th Amendment creates a right to be free from “unreasonable” searches and seizures. An arrest is a seizure of a person, and going through an arrestee’s pockets is a search. To be reasonable, an arrest of a person – and the subsequent search incident of the person – has to be based on probable cause. A police officer can arrest a person in a public place if he/she has probable cause to believe the person committed a crime; the officer doesn’t need an arrest warrant. An officer only needs an arrest warrant to arrest someone in his home.

In the Herring case, the officer arrested him in a public place so the officer didn’t need an arrest warrant; the role of the warrant in this case was to give the officer probable cause to make the arrest. The officer mistakenly assumed the warrant was valid when it was not; that means the officer believed he had probable cause to arrest when he did not. So what we have is a mistake, as Justice Roberts noted in the passage quoted above.

The Supreme Court has for years held that if an officer makes a mistake, the mistake doesn’t violate the 4th Amendment unless the mistake itself was unreasonable. In Maryland v. Garrison, 480 U.S. 79 (1987), for example, police officers had a warrant to search the apartment belonging to a man named McWebb for drugs.. They knew the apartment was on the third floor of “the premises known as 2036 Park Avenue”; what they didn’t know was that there was two apartment on the third floor of that building.

When they got to the building, they ran into McWebb, who took them upstairs and let them into the locked door to the third floor apartment(s). When they entered, they saw Garrison standing in what proved to be a hallway between the two apartments; believing there was only a single apartment, the officers fanned out and started searching for drugs. Before they figured out there were two apartments – one of which belonged to Garrison – they found drugs in his apartment. Garrison was charged with and convicted of violating state drug laws based on what they found in his apartment. Garrison argued that the drugs should have been suppressed because the police had a warrant to search McWebb’s apartment, not his. Maryland v. Garrison, supra.
The Supreme Court disagreed. It found that the officers made a mistake, but it also found that a “reasonable” mistake doesn’t violate the 4th Amendment. Remember, it only protects us from “unreasonable” mistakes.

This brings me back to the Schneier post: I think the Herring case is really a “mistake” case. Under Garrison, if the officer’s mistake in relying on what proved to be a recalled warrant was “reasonable,” then there was no 4th Amendment violation when he arrested Herring and conducted the search incident that turned up the pistol and drugs. The real issue is whether the mistake was reasonable. Maryland v. Garrison, supra.

In the Garrison case, the Court held that the officers’ mistake about their being only one apartment on the third floor of the Park Avenue building was reasonable. In so finding, it looked at what they had done to determine if there was one apartment on the third floor of the building. One officer checked with the local gas and electric company and was told that the bills for the apartment(s) on the third floor went to McWebb (only); they checked other records that showed McWebb lived on the third floor of the building and they looked at it from outside. (It apparently looked like there was only one apartment on the third floor when you looked at the building). The Supreme Court said they could have done more, but reasonable is not synonymous with perfection. The Court found that because the officers made a reasonable –though ultimately inadequate – effort to determine that there was only one apartment on the third floor, their mistake did not violate the 4th Amendment. Maryland v. Garrison, supra.

This brings me back to Schneier’s point: I don’t think the Herring case (especially when read in the light of the holding in the Garrison case) means that ANY mistake the police make (whether in relying on defective databases on in relying on their own inadequate investigations) will allow evidence obtained as a result of the investigation to be used in court. It looks to me (as I think it did to Justice Roberts) like the Herring case is really a Maryland v. Garrison mistake case: The officer who made the arrest reasonably though mistakenly believed the warrant was valid; the warrant clerk who told him there was a live warrant also reasonably – though again mistakenly – believed there was a live warrant, until she subsequently discovered otherwise.

Construed in this light, the Herring case stands for the proposition that police mistakes based on errors or inadequacies in the databases they use will not violate the 4th Amendment and will therefore not trigger the application of the exclusionary rule if the mistakes are “reasonable.” If I’m moving to suppress evidence obtained as the result of such a mistake, I can argue that the mistake was not reasonable, which means I will be relying on as much evidence as I can compile that shows the way the police maintained and operated the database was clearly inadequate. If the court agrees, it will apply the exclusionary rule and I’ll win. It’ll be up to the prosecutor to rebut my argument by coming up with evidence which shows that yes, they goofed up but the underlying structure and operation of the database was reasonable.