CASE COMMENTS. 1. See U.S. CONST. amend. IV (guaranteeing freedom from unreasonable searches and seizures). The Fourth Amendment assures:

Transcription

1 CASE COMMENTS Criminal Procedure Good-Faith Exception to Exclusionary Rule Extends to Illegal Searches Based on Police Recordkeeping Errors Herring v. United States, 129 S. Ct. 695 (2009) The Fourth Amendment guarantees the right of the people to be free from unreasonable searches and seizures. 1 The United States Supreme Court created the exclusionary rule, which requires suppression of evidence obtained in violation of the Fourth Amendment when the potential to deter future police misconduct outweighs societal costs of excluding the evidence. 2 In Herring v. United States, 3 the Court considered whether to employ the exclusionary rule to suppress contraband found during a search incident to arrest by an officer who reasonably relied on an assurance of an outstanding warrant because of the negligent bookkeeping error by another law enforcement agency. 4 In a five-tofour decision, a majority of the Court held that the exclusionary rule would not have a sufficient deterrent effect on isolated incidences of negligent bookkeeping, and therefore affirmed the district court s decision to decline application of the exclusionary rule. 5 On July 7, 2004, defendant Bennie Dean Herring was at the Coffee County impound lot checking on his impounded vehicle. 6 A police investigator on the scene inquired with the Coffee County warrant clerk as to whether Herring had 1. See U.S. CONST. amend. IV (guaranteeing freedom from unreasonable searches and seizures). The Fourth Amendment assures: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. Id. 2. See United States v. Leon, 468 U.S. 897, 906 (1984) (noting exclusionary rule designed to safeguard Fourth Amendment rights generally through deterrent effect); see also infra note 25 and accompanying text (explaining purposes behind judicial creation of exclusionary rule) S. Ct. 695 (2009). 4. See Herring v. United States, 129 S. Ct. 695, 698 (2009) (framing issue before Court). 5. See id. at 704 (affirming Eleventh Circuit and holding isolated police negligence does not trigger exclusionary rule). 6. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (stating facts leading to Herring s arrest), aff d, 129 S. Ct. 695 (2009).

2 266 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:265 any outstanding arrest warrants in Coffee County or in neighboring Dale County. 7 The search revealed no active warrants in Coffee County, but the Dale County warrant clerk discovered an active warrant in her database. 8 Acting on that information, the Coffee County investigator and a deputy pulled Herring over as he left the impound lot, arrested and searched him, and found contraband. 9 Meanwhile, the Dale County Sheriff s Department s warrant clerk, unable to locate a paper copy of the warrant corresponding to the internal computer record, contacted the Dale County Circuit Clerk s Office and learned the issuing judge had recalled the warrant five months prior. 10 The Dale County clerk immediately contacted the clerk in Coffee County, who informed the two arresting officers. 11 Though only ten to fifteen minutes passed between the misstatement and subsequent correction by the Dale County clerk, the Coffee County police officers had already arrested and searched Herring. 12 A grand jury indicted Herring in the United States District Court for the Middle District of Alabama based upon the contraband found during the search. 13 Herring moved to suppress the evidence on the ground that the search was unlawful. 14 The district court considered exclusionary rule precedent and recognized that application of the good-faith exception should depend on the reasonableness of the police officers reliance on the recordkeeping system 7. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (explaining events giving rise to Herring s arrest), aff d, 129 S. Ct. 695 (2009). 8. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (noting when check in Coffee County revealed no warrants, investigator requested check in neighboring county), aff d, 129 S. Ct. 695 (2009). After the Dale County clerk indicated there was an active warrant, the Coffee County clerk requested she fax over a copy of the warrant. Id. 9. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (noting officers pursued Herring as he left police station), aff d, 129 S. Ct. 695 (2009). The search revealed methamphetamine in Herring s pocket, a pistol, ammunition and a knife. Id. 10. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (explaining Dale County clerk unable to find requested copy of warrant), aff d, 129 S. Ct. 695 (2009). Normally, when the Dale County Circuit Clerk s office recalled a warrant, the Circuit Clerk s office would call the Dale County Sheriff s Department and notify it of the recall. Id. The Dale County Sheriff s Department Clerk would then find where the warrant was physically located by looking in the computer database, and would dispose of it. Id. According to the Dale County Sheriff s Department, there was no notice of recall in this instance. Id. The Dale County Sheriff s Department Clerk indicated this mistake was likely that of the Sheriff s Department rather than the Circuit Clerk s office. Id. 11. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (indicating mistake reported to Coffee County and officers immediately), aff d, 129 S. Ct. 695 (2009). 12. See United States v. Herring, 451 F. Supp. 2d 1290, 1291 (M.D. Ala. 2005) (noting Dale County clerk realized judge invalidated warrant not long after informing Coffee County of valid warrant), aff d, 129 S. Ct. 695 (2009). 13. See United States v. Herring, 492 F.3d 1212, (11th Cir. 2007) (mentioning Herring indicted on charges of drug possession and felon in possession of handgun), aff d, 129 S. Ct. 695 (2009). 14. See United States v. Herring, 492 F.3d 1212, (11th Cir. 2007) (recognizing Herring argued suppression required because searches not incident to lawful arrest and warrant rescinded), aff d, 129 S. Ct. 695 (2009).

3 2009] CASE COMMENT 267 itself. 15 Finding no credible evidence of consistent problems with recalled warrants, the district court denied the motion to suppress, concluding application of the exclusionary rule in such circumstances would not have the necessary deterrent effect. 16 After a jury convicted Herring on both counts, he appealed the district court s denial of his motion to suppress to the United States Court of Appeals for the Eleventh Circuit. 17 The Eleventh Circuit affirmed the district court s decision to admit the evidence under the good-faith exception to the exclusionary rule. 18 The Eleventh Circuit noted the search, which was absent probable cause and a valid warrant, violated Herring s Fourth Amendment rights. 19 In determining whether the exclusionary rule applied, the Eleventh Circuit weighed the potential costs to society if the district court suppressed the evidence against the potential for deterrent effect on police misconduct. 20 Assuming the failure to bring warrant records up to date was negligent, the Eleventh Circuit determined application of the exclusionary rule would only minimally deter bad recordkeeping, and this small deterrent effect would not outweigh the cost of excluding evidence necessary to the prosecution. 21 The Supreme Court granted certiorari and affirmed the Eleventh Circuit s judgment, holding the exclusionary rule does not apply when negligent police mistakes lead to an unlawful search. 22 The Fourth Amendment ensures the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. 23 The Supreme Court has recognized the Fourth Amendment 15. See United States v. Herring, 451 F. Supp. 2d 1290, 1292 (M.D. Ala. 2005) (noting Supreme Court in Arizona v. Evans declined to decide issue presented in Herring), aff d, 129 S. Ct. 695 (2009). The district court relied on Justice O Connor s concurring opinion in Arizona v. Evans where she concluded invocation of the good-faith exception should depend on the reasonableness of the police officer s reliance on the system itself. Id. The court relied on Justice O Connor s reasoning that the good-faith exception should not apply where the system is consistently inaccurate. Id. 16. See United States v. Herring, 451 F. Supp. 2d 1290, 1293 (M.D. Ala. 2005) (denying Herring s motion to suppress), aff d, 129 S. Ct. 695 (2009). 17. See United States v. Herring, 492 F.3d 1212, 1215 (11th Cir. 2007) (summarizing Herring s argument on appeal), aff d, 129 S. Ct. 695 (2009). 18. See United States v. Herring, 492 F.3d 1212, (11th Cir. 2007) (affirming holding of district court), aff d, 129 S. Ct. 695 (2009). 19. See United States v. Herring, 492 F.3d 1212, 1215 (11th Cir. 2007) (highlighting difference between applicability of exclusionary rule and Fourth Amendment protection), aff d, 129 S. Ct. 695 (2009). The Eleventh Circuit determined an issue separate from whether the search violated Herring s Fourth Amendment rights controlled whether the court should employ the exclusionary rule to suppress the resulting evidence. Id. 20. See United States v. Herring, 492 F.3d 1212, (11th Cir. 2007) (weighing costs and benefits of exclusion), aff d, 129 S. Ct. 695 (2009). 21. See United States v. Herring, 492 F.3d 1212, (11th Cir. 2007) (considering Leon and holding minimal deterrent effect does not outweigh cost of excluding probative evidence), aff d, 129 S. Ct. 695 (2009). 22. See 129 S. Ct. at 704 (affirming Eleventh Circuit and holding isolated police negligence does not trigger suppression). 23. See Elkins v. United States, 364 U.S. 206, (1960) (recognizing exclusionary rule necessary to

4 268 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:265 contains no provision precluding the use of evidence obtained in violation of its guarantees. 24 The exclusionary rule is a judicially-created remedy designed as a legal incentive to comply with the Constitution, and to safeguard against future Fourth Amendment violations. 25 The exclusionary rule mandates the suppression of certain evidence obtained by law enforcement officials in violation of a defendant s Fourth Amendment rights. 26 The Supreme Court has long recognized the purpose of the exclusionary rule is to deter future violations of Fourth Amendment rights by removing incentives to disregard these rights, and to compel respect for the Fourth Amendment s guarantees. 27 protect innocent from unreasonable searches and seizures); Charles Alan Wright, Must the Criminal Go Free if the Constable Blunders?, 50 TEX. L. REV. 736, 737 (1972) (acknowledging exclusionary rule benefits guilty but also necessary to protect innocent); see also supra note 1 (providing language of Fourth Amendment). See generally Steven G. Davison, Warrantless Investigative Seizures of Real and Tangible Personal Property by Law Enforcement Officers, 25 AM. CRIM. L. REV 577 (1987) (articulating what constitutes unlawful search and seizure, and describing development of Fourth Amendment jurisprudence). 24. See United States v. Leon, 468 U.S. 897, 906 (1984) (recognizing wrong denounced by Fourth Amendment already accomplished by unlawful search and seizure); see also Potter Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 COLUM. L. REV. 1365, (1983) (explaining historical justifications for exclusionary rule). The Court in Leon recognized the use of evidence obtained in violation of the Fourth Amendment is not a new Fourth Amendment violation. United States v. Leon, 468 U.S. 897, 906 (1984). Former Supreme Court Justice Stewart explained that there were several theories about the source of the exclusionary rule after Mapp v. Ohio. See Stewart, supra, at The first theory suggested the Constitution directly mandates exclusion of evidence obtained in violation of its commands. Id. at The second theory proposed that exclusion was necessary to preserve the integrity of government. Id. at The third theory considered exclusion as a constitutionally required remedy. Id. at See Arizona v. Evans, 514 U.S. 1, 10 (1995) (indicating exclusionary rule designed to deter future Fourth Amendment violations); see also Weeks v. United States, 232 U.S. 383, 392 (1914) (articulating reasons for excluding evidence obtained in violation of defendant s Fourth Amendment rights), overruled by Mapp v. Ohio, 367 U.S. 643 (1961). The Court reasoned: The tendency of those who execute the criminal laws of the country to obtain conviction by means of unlawful seizures and enforced confessions, the latter often obtained after subjecting accused persons to unwarranted practices destructive of rights secured by the Federal Constitution, should find no sanction in the judgments of the courts, which are charged at all times with the support of the Constitution, and to which people of all conditions have a right to appeal for the maintenance of such fundamental rights. Weeks v. United States, 232 U.S. 383, 392 (1914), overruled by Mapp v. Ohio, 367 U.S. 643 (1961). 26. See Barry F. Shanks, Comparative Analysis of the Exclusionary Rule and Its Alternatives, 57 TUL. L. REV. 648, (1983) (explaining exclusionary rule excludes otherwise admissible evidence where evidence obtained illegally). For the first time, in the 1914 decision of Weeks v. United States, the Court refused to admit evidence obtained in violation of the Fourth Amendment, recognizing that allowing its admittance rendered the Fourth Amendment of no value. Id. at 649. The Court later made the exclusionary rule applicable against the states, citing judicial integrity as its reasoning. Id. at See United States v. Leon, 468 U.S. 897, (1984) (noting deterrence of police misconduct remains primary purpose of exclusionary rule); Mapp v. Ohio, 367 U.S. 643, (1961) (citing deterrence and utility of judicial intolerance for illegal law enforcement activities as reasons for rule); Elkins v. United States, 364 U.S. 206, 217 (1960) (stressing [t]he rule is calculated to prevent, not to repair ); William E. Ringel, SEARCHES AND SEIZURES, ARRESTS AND CONFESSIONS 1:5 (2009) (analyzing rule s development and

5 2009] CASE COMMENT 269 Because the purpose of the exclusionary rule is to deter future misconduct, it is not a personal constitutional right of the aggrieved party, and is not a necessary corollary of a Fourth Amendment violation. 28 The Supreme Court has made clear that not every Fourth Amendment violation resulting in discovery of evidence mandates use of the exclusionary rule. 29 A court will apply the exclusionary rule and suppress fruits of an illegal search or seizure where the benefits of deterrence outweigh the social costs of exclusion. 30 This balancing test reserves application of the exclusionary rule to cases where exclusion most adequately serves the rule s remedial objectives. 31 The potential benefit of the exclusionary rule in deterring institutional police misconduct depends upon the nature and extent of the violation. 32 On the other hand, the Supreme Court has recognized the consequences of suppressing arguably probative evidence and potentially releasing dangerous criminals into noting modern jurisprudence differs from broad application at rule s inception). The early application of the exclusionary rule considered the Fourth Amendment as a prohibition on the use of illegally obtained evidence. Ringel, supra, at 1:5. The Court later repudiated judicial integrity as a justification for the exclusionary rule; all that remains is deterrence of police misconduct. Id. 28. See United States v. Calandra, 414 U.S. 338, 348 (1974) (noting general deterrent purpose of exclusionary rule). 29. See, e.g., Hudson v. Michigan, 547 U.S. 586, 594 (2006) (concluding violation of knock-andannounce rule not enough to require suppression of evidence); Massachusetts v. Sheppard, 468 U.S. 981, (1984) (holding suppression of evidence discovered by faulty warrant would not serve exclusionary rule s purpose); United States v. Calandra, 414 U.S. 338, 354 (1974) (determining benefits of excluding evidence from grand jury proceedings not sufficient to outweigh costs). It should be noted, however, that [i]f the police conduct the most outrageous and unjustified search of [a] house but find nothing, the Exclusionary Rule never comes into play because the victim of the search will not be charged with a crime. Wright, supra note 23, at 737. For these victims of Fourth Amendment violations, there is a possibility of redress. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 389 (1971) (holding violation of Fourth Amendment by agent acting under color of law creates damages action). However, governmental immunity stymies many such actions. See generally Richard B. Golden & Joseph L. Hubbard, Jr., Section 1983 Qualified Immunity Defense: Hope s Legacy, Neither Clear nor Established, 29 AM. J. TRIAL ADVOC. 563 (2006). 30. See Illinois v. Krull, 480 U.S. 340, (1987) (noting where exclusionary rule provides incremental deterrent effect, court must weigh possible benefit against costs); United States v. Leon, 468 U.S. 897, (1984) (applying balancing test to determine applicability of exclusionary rule). 31. See United States v. Leon, 468 U.S. 897, (1984) (articulating test to determine appropriateness of exclusionary rule). 32. See United States v. Leon, 468 U.S. 897, (1984) (noting no beneficial deterrent effect on officers conduct where conduct objectively reasonable); Mapp v. Ohio, 367 U.S. 643, 655 (1961) (holding evidence inadmissible where officers entered petitioners home and searched without warrant); Sharon L. Davies, The Penalty of Exclusion A Price or Sanction?, 73 S. CAL. L. REV. 1275, (2000) (analyzing success of exclusionary rule in deterring police misconduct). The focus of the exclusionary rule is not on individual officers, but rather on discouraging misconduct of law enforcement as an institution. Davies, supra, at The exclusionary rule is not a penalty upon the individual officer; the officer will feel the impact of exclusion only indirectly. Id. But see United States v. Calandra, 414 U.S. 338, (1974) (Brennan, J., dissenting) (contending recognition of deterrence as only goal of exclusionary rule misunderstands historical objective of rule). Justice Brennan argued the rule serves other important purposes; it enabl[es] the judiciary to avoid the taint of partnership in official lawlessness, and it assur[es] the people-all potential victims of unlawful government conduct-that the government would not profit from its lawless behavior, thus minimizing the risk of seriously undermining popular trust in government. Calandra, 414 U.S. at 357.

6 270 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:265 society. 33 In United States v. Leon, 34 the Court adopted a reasonable good-faith exception to the exclusionary rule after recognizing exclusion will not serve a deterrent purpose in some instances. 35 The Court noted the balancing test requires consideration of the egregiousness of the police misconduct because, at some point, the illegal police action is too attenuated for the deterrent effect to justify its cost. 36 The Court concluded the exclusionary rule should not apply where the officer s conduct is objectively reasonable. 37 Following the rationale set forth in Leon, the Court extended the good-faith exception in Arizona v. Evans, 38 holding that evidence seized in violation of the Fourth Amendment resulting from clerical errors of court employees fell within the good-faith exception to the exclusionary rule. 39 In Herring v. United States, the Court narrowed the application of the exclusionary rule by holding that evidence obtained in an unlawful search resulting from isolated law enforcement negligence did not require 33. See, e.g., Illinois v. Krull, 480 U.S. 340, 347 (1987) (weighing costs such as withholding reliable information from the truth-seeking process ); United States v. Janis, 428 U.S. 433, (1976) (considering costs like societal interests in law enforcement and access to relevant evidence in criminal proceedings); United States v. Calandra, 414 U.S. 338, 349 (1974) (weighing potential injury to function of grand jury when determining applicability of exclusionary rule) U.S. 897 (1984). 35. See United States v. Leon, 468 U.S. 897, 909 (1984) (concluding precedent suggests modification of exclusionary rule). The Court emphasized the standard of reasonableness is objective. Id. at 919 n.20. The focus on objective reasonableness stresses the exclusionary rule is an incentive for the law enforcement profession to respect the guarantees of the Fourth Amendment. Id. 36. See United States v. Leon, 468 U.S. 897, 911 (1984) (analyzing exclusionary rule precedent in connection with police misconduct); Andrew E. Taslitz, The Expressive Fourth Amendment: Rethinking the Good-Faith Exception to the Exclusionary Rule, 76 MISS. L.J. 483, (2006) (arguing Leon s good-faith exception requires more than ordinary negligence by police). 37. See United States v. Leon, 468 U.S. 897, (1984) (articulating good-faith exception to exclusionary rule and holding rule inapplicable). The Court used an objective standard in determining whether the officers acted in good faith. Id. at 919. The objective standard requires officers to have a reasonable knowledge of what the law prohibits. Id. The Court emphasized the focus should be on the collective knowledge of the police, rather than individual officers. Id. at 923 n.24. The Court determined the deterrent purpose of the exclusionary rule presumes, at the very least, negligence on the part of the officer. Id. at 919. If the court seeks to deter future misconduct, the past conduct must not have been undertaken with due care. Id. However, when the officer acted with complete good faith, the rationale behind the exclusionary rule loses its force. Id. As the officer s reliance on the magistrate s determination of probable cause when the magistrate issued a warrant was objectively reasonable, the Court held the lower court improperly granted the motion to suppress. Id. at 922. The Court reasoned on the basis of three factors: first, the exclusionary rule is designed to deter police misconduct, not to punish judicial error; second, the Court found no evidence that judges are prone to undermine the Fourth Amendment s guarantees; and third, the Court found no basis for believing the exclusionary rule would have any deterrent effect on judges who issue such warrants. Id. at U.S. 1 (1995). 39. See Arizona v. Evans, 514 U.S. 1, 14 (1995) (adhering to framework set out in Leon and concluding good-faith exception applied). The Court determined there was no indication the officer was not acting in an objectively reasonable manner in his reliance on a police computer record. Id. at

7 2009] CASE COMMENT 271 suppression. 40 The Court accepted the parties assumption that there was a Fourth Amendment violation and began its analysis of whether it should apply the exclusionary rule by considering the actions of the police officers involved. 41 Referencing the Eleventh Circuit s determination that the failure to update the computer database was negligent, the Court concluded the error was not enough to require the extreme sanction of exclusion. 42 The Court weighed the benefits of deterrence against the principal costs of letting guilty and possibly dangerous defendants go free, and impeding the law enforcement s truth-seeking objectives. 43 In this balancing test, the Court acknowledged the deterrent effect varies with the culpability of the law enforcement involved. 44 The Court reviewed its previous applications of the exclusionary rule and observed that those cases involved flagrant and intentional police misconduct. 45 Given the core concerns of the exclusionary rule and the Court s prior applications of the exclusionary rule to situations with high levels of police culpability, the Court concluded police conduct must be sufficiently deliberate for the exclusionary rule to have a deterrent effect that justifies exclusion. 46 The Court held that the police conduct must be deliberate, reckless, or grossly negligent for application of the exclusionary rule, and the bookkeeping error in Herring did not rise to such a level. 47 The Court concluded that the Eleventh Circuit was correct to affirm the denial of the motion to suppress because there 40. See 129 S. Ct. at 704 (holding police mistakes resulting from negligence do not trigger exclusionary rule). 41. Id. at (analyzing applicability of exclusionary rule to evidence obtained in search violating Fourth Amendment). 42. Id. at 700 (concluding police negligence not enough to require suppression of evidence). 43. Id. at (stating benefits of deterrence must outweigh costs). 44. See 129 S. Ct. at 701 (establishing extent of exclusionary rule application differs with culpability of law enforcement). 45. Id. at (considering Supreme Court cases where exclusionary rule applied). The Court began its analysis by noting in cases that it had applied the exclusionary rule, the transgressions presented intentional conduct that was patently unconstitutional. Id. at 702. The Court first considered the conduct in Weeks, where an officer had broken into the defendant s home to seize papers without a search warrant, and without probable cause to obtain one. Id. Next, the Court examined the actions taken by police in Mapp v. Ohio, where officers had forced open the defendant s door holding a false warrant, and conducted a search. Id. The Court found support for its conclusion that nonrecurring and attenuated negligence is not conduct requiring application of the rule in noting that since Leon, the Court has only applied the exclusionary rule to highly culpable conduct. Id. 46. Id. at (examining precedent where exclusionary rule applied). 47. Id. at 703 (determining analysis of culpability requires objective good-faith inquiry). The Court confined the good-faith inquiry used to determine the degree of culpability to consideration of whether a reasonably well-trained officer would have known that the search was illegal. Id. This inquiry should take into account circumstances such as the officer s knowledge and experience. Id. The Court acknowledged that if Herring had proven that the police were reckless in their recordkeeping, or made false warrant entries to lead to future arrests, exclusion would have been justified. Id.

8 272 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:265 was no evidence that the negligence at issue was routine or widespread. 48 Justice Ginsburg dissented from the majority s opinion and argued the Court should not restrict the exclusionary rule s application if it wants to discourage police infringement on constitutionally protected rights. 49 Referencing the deterrent effect of negligence liability in tort law, Justice Ginsburg contended that the Court underestimated the gravity of recordkeeping errors in law enforcement, especially with the prevalence of electronic recordkeeping databases. 50 Justice Breyer also dissented, agreeing with Justice Ginsburg s conclusion, but writing separately to contend the trigger for the exclusionary rule should depend on a distinction between judicial errors and police errors, a line he recognized as discernable in precedent. 51 A comparison of the balancing tests employed by the Court historically and presently illustrates a gradual retreat from the principal concerns underlying the creation of the exclusionary rule, resulting in a narrower application of the rule. 52 The Herring Court framed the societal costs as allowing guilty and dangerous defendants to go free and impeding the truth-seeking function of law S. Ct. at 704 (affirming Eleventh Circuit s decision to deny motion to suppress evidence). 49. See id. at 705 (Ginsburg, J., dissenting) (arguing application of exclusionary rule only way for courts to deter police misconduct). 50. Id. at 705 (advocating for broader view of exclusionary rule and underlying objectives). While Justice Ginsburg noted the main objective of the exclusionary rule is, as the majority recognized, to deter police misconduct by eliminating motivations to disregard it, she contended the rule serves other important purposes. Id. at 707. The exclusionary rule allows the judiciary to avoid sanctioning lawless behavior and assures victims of unlawful government behavior that the government will not profit, thereby ensuring trust in the government. Id. The exclusionary rule could serve its deterrent purpose, Justice Ginsburg contended, because the foundational basis of tort law is that liability for negligence creates an incentive to act with greater care. Id. at 708. Without an incentive to create a practice of checking the database for accuracy, there is a risk of leaving those like Herring without a remedy for violations of their constitutional rights. Id. at Id. at 710 (Breyer, J., dissenting) (reasoning application of exclusionary rule should be based on distinction between judicial and police errors). Justice Breyer contended the Court decided not to apply the exclusionary rule in Arizona v. Evans because a judicial employee made the error, rather than a law enforcement official. Id. Justice Breyer found support for his conclusion in the bases for the Arizona v. Evans decision: the exclusionary rule is designed to deter police misconduct and not misconduct of judicial employees, court employees are not inclined to ignore the Fourth Amendment s commands, and application of the exclusionary rule would not have a significant effect on court employees. Id. Justice Breyer argued that drawing a bright line between police recordkeeping errors and judicial recordkeeping errors would not only be consistent with precedent, but also easier for lower courts to apply. Id. at See United States v. Leon, 468 U.S. 897, 928 (1984) (Brennan, J., dissenting) (contending recent Court decisions represent gradual but determined strangulation of [exclusionary] rule ); Ringel, supra note 27, at 1:5. When the Court adopted the exclusionary rule in Weeks v. United States, it was as a prohibition derived from the Fourth Amendment itself. See Ringel, supra note 27, at 1:5. While the Court in Mapp v. Ohio cited deterrence principles and judicial integrity as reasons for the rule, the Court has since rejected judicial integrity as justification for the rule. See id. Justice Brennan, joined by Justice Marshall, argued that the justification for the majority s holding in Leon, that the costs outweighed the benefits, could have a narcotic effect on the Fourth Amendment right to be free from unreasonable searches and seizures. United States v. Leon, 468 U.S. 897, 929 (1984) (Brennan, J., dissenting). The Justices argued the way the majority framed the costs and benefits ignored the fundamental constitutional importance of the interests at stake. Id. at 929.

9 2009] CASE COMMENT 273 enforcement. 53 Mere decades ago, the Court characterized the concerns far differently, acknowledging that in some instances adherence to the Fourth Amendment s commands may benefit guilty persons, but more pertinent to its analysis was that [n]othing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the character of its own existence. 54 The Court has since repudiated this concern with judicial integrity as relevant to an exclusionary rule analysis, thereby leaving the deterrence of police misconduct as the only relevant benefit. 55 Justices dissenting from this retreat have contended the balancing test has ignored the fundamental constitutional concerns behind the creation of the Fourth Amendment and its enforcement mechanism, the exclusionary rule. 56 However, because societal costs remain the same, and the Court has minimized what it will consider as a benefit, the scales appear tipped in favor of admitting the evidence, thus leaving the exclusionary rule proponent with a much higher burden. 57 The deterrence principle assumes that refusing to admit evidence obtained through misconduct will instill a greater degree of care toward the rights of an accused. 58 The Herring majority determined that applying the exclusionary rule to unintentional conduct could not have the necessary deterrent effect, and therefore concluded the conduct must be more culpable to trigger application of the exclusionary rule. 59 Citing the principles underlying tort law, the fourjustice dissent led by Justice Ginsburg argued that applying the exclusionary rule in Herring would create incentive to act with greater care, thereby serving 53. See 129 S. Ct. at (framing costs and benefits of applying exclusionary rule). Justices Brennan and Marshall criticized the characterization of the concerns leading to the holding in Leon as being far removed from those leading to the holding in Mapp v. Ohio; however, the Court s opinion in Herring goes further. See United States v. Leon, 468 U.S. 897, (1984) (Brennan, J., dissenting). The Leon Court was concerned with the removal of inherently trustworthy information, whereas the Herring Court characterized those urging for suppression as guilty and potentially dangerous, though a defendant who presents the issue of suppression before a court has not had an opportunity to adjudicate such guilt. 129 S. Ct. at But cf. United States v. Leon, 468 U.S. 897, 907 (1984) (articulating concerns more objectively than Herring Court). 54. See Mapp v. Ohio, 367 U.S. 643, 659 (1961) (concluding judicial sanction of government lawbreaking breeds disrespect for law). In determining the circumstances warranted exclusion, the Court reiterated that the application of the exclusionary rule gives the individual no more rights than those the Constitution guarantees, and gives the officer only those benefits to which an honest law enforcement official is entitled. Id. at See supra note 27 and accompanying text (explaining reasoning used for application of exclusionary rule). 56. See United States v. Leon, 468 U.S. 897, 929 (1984) (Brennan, J., dissenting) (disagreeing with majority s cost and benefit analysis). 57. See United States v. Leon, 468 U.S. 897, (1984) (Brennan, J., dissenting) (criticizing majority s assessment of the costs and benefits as dishonest). Justice Brennan recognized that as the costs articulated by the courts loom to exaggerated heights, the benefits are made to disappear with a mere wave of the hand. Id. at See supra note 27 and accompanying text (explaining purpose behind exclusionary rule). 59. See 129 S. Ct. at 702 (requiring police act deliberately so exclusion can serve deterrent purpose).

10 274 SUFFOLK UNIVERSITY LAW REVIEW [Vol. XLIII:265 the necessary deterrent purpose. 60 Though the conduct that led to the violation of Herring s Fourth Amendment rights was unintentional, application of the exclusionary rule would nevertheless encourage police departments to change procedure and take precautions to ensure the integrity of their databases, where they currently have little incentive to do so. 61 With the increasing size of electronic databases and their influence on law enforcement, the risk of error is not slight. 62 As the law stands after Herring, bookkeeping errors leave individuals at risk of unconstitutional searches with no remedy for these violations. 63 The framers intended the Fourth Amendment to protect both the guilty and the innocent from unreasonable searches and seizures. 64 The only channel the court system has to protect all individuals from unreasonable searches and seizures, and thus ensure the Fourth Amendment s commands have meaning, is through exclusion of evidence acquired against those who are often guilty. 65 It is clear that the scope of the exclusionary rule has narrowed in application with the Herring holding; however, the extent of its implications remains unseen. 66 Arguably, the holding extends the good-faith exception to the exclusionary rule to any negligent, but objectively reasonable, law enforcement decision that leads to searches and seizures in violation of the Fourth Amendment. 67 The 60. Id. at 708 (Ginsburg, J., dissenting) (arguing negligent conduct likely deterred by exclusion). 61. Id. (contending exclusion only way to ensure databases accuracy). 62. Id. at (explaining breadth of electronic databases in law enforcement) S. Ct. at 709 (Ginsburg, J., dissenting) (arguing exclusion only viable remedy for Fourth Amendment violations). Justice Ginsburg dismissed the argument that 42 U.S.C offers a viable remedy, noting that qualified immunity would protect the officer. Id. 64. See supra note 1 (setting forth language of Fourth Amendment). 65. See Elkins v. United States, 364 U.S. 206, (1960) (maintaining exclusionary rule necessary to protect innocent from unreasonable searches and seizures). The Court observed there are many unlawful searches and seizures where law enforcement does not discover incriminating evidence, and so the exclusionary rule is not applicable. Id. 66. See Daniel J. Solove, Herring v. United States, The Exclusionary Rule, and Errors in Databases, CONCURRING OPINIONS, Jan , (analyzing potential implications of Herring holding). A court could read the holding as a broader rule whereby law enforcement actions based on negligent assumptions will not trigger the exclusionary rule. Id. Conversely, a court could read the holding narrowly to apply only to the specific kind of database errors present in Herring. Id. 67. See Arizona v. Evans, 514 U.S. 1, 6 (1995) (framing issue in manner encompassing issue presented in Herring); Kent Scheidegger, The Exclusionary Rule, Seismic Shift or Minor Blip?, CRIME AND CONSEQUENCES, Jan. 14, 2009, (recognizing Herring holding could be applied with sweeping scope ); Solove, supra note 66 (indicating Herring holding susceptible to broad or narrow interpretation). In Evans, the Court framed the issue presented as whether the exclusionary rule requires suppression of evidence seized incident to an arrest resulting from an inaccurate computer record, regardless of whether police personnel or court personnel were responsible for the record s continued presence in the police computer. Arizona v. Evans, 514 U.S. 1, 6 (1995). The Evans Court s framing of the issue did not limit its application to instances when judicial employees made the error but also included situations in which the error was attributable to police employees. Id. Critics have questioned whether Herring represents a broader rule, or simply a restatement of Evans. Solove, supra note 66.

11 2009] CASE COMMENT 275 narrowing of the exclusionary rule s application represents an increasing disregard for the Fourth Amendment s commands. 68 The decision minimizes incentive for police to respect the Fourth Amendment rights of both the guilty, whose cases will inevitably come before a court, and the innocent, who have little recourse for the violation. 69 The Court s holding in Herring v. United States further narrowed the scope of the exclusionary rule. The Court s determination that the social costs outweigh the deterrent effect exclusion will have upon police misconduct leaves law enforcement with little incentive to ensure the accuracy of their electronic databases. This failure to provide an effective remedy for individual victims of unreasonable searches and seizures contravenes the purpose behind creation of the exclusionary rule, which is to ensure compliance with the Constitution. Moreover, a continued narrowing of the exclusionary rule will leave the Fourth Amendment s only enforcement mechanism as an effectively meaningless command. Amy L. Codagnone However, many express doubt that Herring was simply a restatement of Evans, contending the Court would not have taken the case simply to affirm the rule of a recent case. Id. 68. See United States v. Leon, 468 U.S. 897, 929 (1984) (Brennan, J., dissenting) (contending narrowing of exclusionary rule s application ignores exclusionary rule s constitutional importance). 69. See, e.g., Wilson v. Layne, 526 U.S. 603, 606 (1999) (concluding police violated Fourth Amendment but officers entitled to qualified immunity because violation not established law); Ramirez v. Butte-Silver Bow County, 298 F.3d 1022, 1028 (9th Cir. 2002) (recognizing faulty warrant entitled individual officers to qualified immunity), aff d, 540 U.S. 551 (2004); Daughenbaugh v. City of Tiffin, 150 F.3d 594, (6th Cir. 1998) (recognizing entry without warrant violated Fourth Amendment but officers entitled to qualified immunity); see also Wright, supra note 23, at 737 (recognizing exclusionary rule in direct application benefits only guilty persons). But see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 388 (1971) (allowing possibility of recovery for Fourth Amendment violation). A violation of an innocent person s Fourth Amendment rights will not generate evidence of criminal activity; the exclusionary rule never comes into play. Wright, supra note 23, at 737. While excluding evidence tending to show a person has committed a crime may seem like an ineffective remedy, there is no other effective preventative measure for illegal searches and seizures. Id. at 738. The arguments that an innocent victim of a search or seizure could institute either a criminal or a civil action are almost wholly theoretical. Id. Thus, deterrence is the only means to protect the interests of the innocent as well as the guilty. See id.