SCOTUS reviews the Exclusionary Rule

RobNDenver · Oct 8, 2008

Yesterday when the Supreme Court agreed to hear two cases on the exclusionary rule, we see that there is a threat to one of the last remaining bulwarks against governmental intrusions into our lives: the exclusionary rule, which provides that evidence illegally seized by the police cannot be used as evidence in court.

The Supreme Court will consider the case of Herring v. United States, which questions whether that rule should be curtailed. In 2004, sheriff's deputies in Coffee County, Ala. arrested Bennie Herring based on a computer entry that showed an outstanding warrant for him, even though the warrant had been withdrawn five months earlier. He was then prosecuted for the drugs and gun found during the arrest.

The lower court said that the Sheriff's Office was negligent in not clearing out the warrant, but that the search of Mr. Herring by the arresting officer was in good faith, and the evidence derived from it could be used against Herring.

The simple fact is that the exclusionary rule is vital to the preservation of our liberties and must be maintained. There is no penalty that keeps law enforcement from illegally searching citizens except the rule that says that evidence illegally seized is not admissible.

We should watch this case carefully, because the impact it may have on the 4th Amendment is enormous.

DKSuddeth · Oct 8, 2008

unfortunately, this sitting bench is extremely anti-drug and anti-felon gun owner. They will most definitely set bad law and precedent on a case that should never have come to them.

Standing Wolf · Oct 8, 2008

We should watch this case carefully, because the impact it may have on the 4th Amendment is enormous.

I'm certainly not opposed to watching; I believe the cause of liberty might better be furthered, however, by publicly hanging a few tyrants.

Sergeant Sabre · Oct 8, 2008

This isn't exactly a challenge to the exclusionary rule. From what you have posted, nobody is trying to say that evidence from an illegal search should not be excluded. That is, if your home or car are searched without warrant or one of the exceptions to the search warrant rule.

This seems to be more of a question of whether the Sheriff's Office's negligence is maintaining warrant records still allows them to take advantage of the "good faith" doctrine.

Should watch, nonetheless.

benEzra · Oct 8, 2008

The lower court said that the Sheriff's Office was negligent in not clearing out the warrant, but that the search of Mr. Herring by the arresting officer was in good faith, and the evidence derived from it could be used against Herring.

In my opinion, it should not matter if the search was "in good faith"; it should matter if the warrant was VALID.

RobNDenver · Oct 8, 2008

Actually the trial court and the appellate court said that the evidence, illegally obtained, was discovered "in good faith" and should be used against the defendant.

In my opinion, it should not matter if the search was "in good faith"; it should matter if the warrant was VALID.

Ben, this was a search without a warrant, as most searches in the field are. . . the officers conducted a search incident to arrest on a bogus warrant, or an inventory search of the defendant's car again due to the bad warrant information. Either way, the product of the search ought to be "fruit of the poisonous tree" and not admissible at trial.

Although the trial judge and the federal appeals court both found the arrest illegal and that the sheriff's department was negligent in not maintaining accurate records, they allowed the government to use the evidence, concluding the officers acted in good faith and that the exclusionary rule should not apply.

The exclusion of evidence that is obtained illegally whether the officers were acting in good faith or not, is the only protection that we have against illegal search and seizure. It is THE ONLY barrier between citizens and the overreaching government agents that want to search anything you own, "because they can".

If the Roberts Supreme Court modifies or strikes down the exclusionary rule, then you know that we will be victims of the government since the exclusion of evidence is the only penalty that police pay attention to, before conducting a search without a warrant.

When the exclusionary rule was affirmed in Mapp v. Ohio Justice Brandeis wrote, in pertinent part - " "If the government becomes a lawbreaker, it breeds contempt for law, it invites every man to become a law unto himself; it invites anarchy."

This is a serious threat to our civil liberties and reminds me that you can't defend America using Un-American tactics.

ArmedBear · Oct 8, 2008

If the officer was acting in good faith, then the officer should not be punished.

How is that even relevant to the use of the evidence in court?

What does "in good faith" matter in this case?

RobNDenver · Oct 8, 2008

If the officer was acting in good faith, then the officer should not be punished.

How is that even relevant to the use of the evidence in court?

What does "in good faith" matter in this case?

Bear,

No one said the officer should be punished; however the product of the search should not be admissible as evidence against the defendant whether the officer was acting "in good faith" or not. The officer relied on bad information from headquarters. No question about that. The evidence that was found pursuant to the arrest should not be admissible.

The point is that the arrest was not legal, and any search based on the illegal arrest should be invalid. The evidence discovered in a bad search should not be used against a defendant, because that is what keeps the government from conducting random searches of you, your home, your car, your kids . . . you get the point.

If a police officer is allowed to claim that he "thought he was acting properly" in other words acting "in good faith" but wasn't . . . then the evidence cannot be used against a defendant whose constitutional rights have been violated. Otherwise, you will have police searching citizens without restraint and claiming that they thought they had grounds and were acting in good faith.

Picard · Oct 8, 2008

That's how I feel after reading that case. God help us.

In the meantime, keep on buying ammo.

ArmedBear · Oct 8, 2008

No one said the officer should be punished; however the product of the search should not be admissible as evidence against the defendant whether the officer was acting "in good faith" or not.

That was exactly my point.

Whether or not the officer acted "in good faith" matters only when it comes to how the officer is treated. The evidence needs to be treated according to the law -- in this case, it needs to be excluded.

What I want to know is this, though. When will there be serious consequences for public officials who violate our rights?

Exclude the evidence, AND if someone gathered it in bad faith, let's see him get some jail time.

Shade00 · Oct 8, 2008

The good faith exception is applied by determining whether the officer could have reasonably relied on an otherwise invalid warrant, not whether the officer thought he was correct. The court is not going to take an officer at his word. However, in this case, it looks like the search incident-to-arrest (or plain view seizure) was conducted in good faith - the defendant could likely only rebut with evidence that the officer knew the warrant was invalid.

There is a significant amount of jurisprudence on the issue. If you think this is an egregious expansion of the good faith exception to the exclusionary rule, you are wholly mistaken. For example, if a warrant is just barely ambiguous enough to cover, say, two contiguous apartments on one floor of a building, and an officer was reasonably mistaken in entering the incorrect apartment, evidence seized from the incorrect apartment would be still be allowed. Again, the question is reasonableness. And yes, the good faith exception is seemingly absurd - but this is not new.

Ergosphere · Oct 8, 2008

I've read that Scalia doesn't think the exclusionary rule is necessary anymore, because other sanctions are sufficient to prevent misconduct.

Nuts. I strongly agree with RobNDenver here.

Bailey Boat · Oct 8, 2008

If the arrest was deemed flawed then any and all "results" of that arrest are likewise flawed..... Back to the poisionious tree........

Jeff White · Oct 8, 2008

An arrest on a warrant that wasn't removed from the database is not actionable against the officer who made the arrest or his agency. The agency that entered the information is responsible for it's accuracy.

This is a brief explanation of the case from a professional update I received in my email today:

http://rs6.net/tn.jsp?e=001e0NUGOKX...J35HdoHpXok4rPyQwv3NSK03wEd85knyqwrYO4UGTLTc=

United States v. Herring
The first case, United States v. Herring involved the arrest of Herring on a mistaken warrant. An investigator from Coffee County in Alabama had the warrant clerk from his Sheriff’s Office call the warrant clerk at the Dale County Sheriff’s Office to determine if Herring, who had been at the Coffee County Sheriff’s Office dealing with an impounded vehicle, had an active warrant. The warrant clerk indicated that Herring did in fact have an active warrant in Dale County. The Coffee County warrant officer asked the clerk from Dale County to pull the warrant due to the fact that the investigator was going to pick up Herring on the warrant.

The information was relayed to the investigator who immediately arrested Herring and searched him incident to arrest. This search led to the recovery of methamphetamine and a firearm. Shortly after the search and within 15 minutes of the actual call to Dale County, the Dale County clerk called back to Coffee County and reported that there was a mistake and that there was no longer a warrant for Herring.

The question before the court on October 7th was whether the exclusionary rule applied to the methamphetamine and gun that were seized as the result of a mistaken arrest but where the arresting officer was relying on information from another law enforcement agency.

The Argument
A great deal of the argument focused on the issue of who makes the mistake. Previous decisions by the United States Supreme Court indicate that if a court employee makes a mistake and law enforcement takes action not realizing a mistake has been made, then the exclusionary rule does not apply and the evidence comes in. Herring argued that the same rule does not apply when the mistake is made by a law enforcement agency with respect to warrants. While it seemed to be acknowledged that the officer who made the arrest had done nothing wrong, it was argued that law enforcement’s information and record-keeping with respect to mistakes will only be kept in check if law enforcement is deterred by the exclusionary rule.

On the other side of the argument was the purpose of the exclusionary rule itself, which has always been to deter law enforcement misconduct. The question was raised, how would the exclusionary rule deter the actions of an officer in making the arrest where the officer had information from another agency indicating the subject was wanted?

Once again, some of the justices raised the use of the exclusionary rule in contemporary cases as to whether it was necessary to deter police conduct. The Court alluded to the professionalism of current law enforcement and the other remedies available to someone who believed officers had acted inappropriately.

I predict that the evidence will be admitted. Herring is asking the court to over itself. I don't see that happening. That is the proper ruling. There was no misconduct on the part of the officers involved.

Jeff

nplant · Oct 8, 2008

If Jeff's information is correct (I'm assuming so), then I'd agree that it will probably be admitted.

That said, I think the case does bring up an interesting question, namely, "What keeps the police from 'forgetting' to remove warrants from the system?" I'd say it's a longshot to think that there would be some nationwide conspiracy to keep people in the system for longer than necessary, or even to fabricate warrants out of nothingness because really, think of all the people who would need to be co-conspirators.

But as a pure thought-experiment, imagine how much that would suck to find out that any of us were subject to search at any time because "the system" accidentally got us confused with someone else.

Anyone here ever seen Brazil?

romma · Oct 8, 2008

What keeps the police from 'forgetting' to remove warrants from the system?"

Bingo!

Yup, leftists will find any excuse, twist any logic, and if that doesn't work they employ the "because we said so" tactic.

Our constitution is shredded more and more in the intest of government agents every day...

Logan5 · Oct 8, 2008

Just not ever clearing any warrants out of the system really isn't practical, even if you're supposing Harvey Keitel playing someone bent on willful police misconduct.
It's really tempting to say that the evidence should come in in Herring... Keep in mind, this wasn't a search warrant, this was an arrest warrant. The search incident to arrest was limited to his person and presumably, his "wingspan" area, in order to find weapons he might use or evidence he might destroy. And it totally did! Which is to say, he went down to the police impound yard to reclaim his vehicle with his pockets full of meth.

CombatArmsUSAF · Oct 8, 2008

I will most definitely be flamed for saying this but:

How many "good" guys do you think are saved by the exclusionary rule? My guess would be, not many, seeing as how to have evidence to be dismissed, in most cases you would
have had to break the law to begin with.

Now I know that there have been numerous violent criminals that have been "saved" by this rule. It seems as though the exclusionary rule helps more bad guys than good.

RobNDenver · Oct 8, 2008

How many "good" guys do you think are saved by the exclusionary rule? My guess would be, not many, seeing as how to have evidence to be dismissed, in most cases you would
have had to break the law to begin with.

You miss the point. The Bill of Rights was not enacted to protect the guilty, but to constrain the actions of the government. It doesn't matter if dozens or hundreds of guilty parties escape punishment if the government does not follow the law.

This is what separates us from the rock throwers. Remember, we swore an oath to defend the constitution and laws of this country, when we enlisted and again when/if we were commissioned. . .

Dmack_901 · Oct 8, 2008

In response to CombatArmsUSAF, I'd have to say protections against unreasonable search and seizure are designed to protect "bad" guys. I mean how does it protect anyone other than those who are breaking the law? I guess it prevents a minor inconvenience...

But the 4th amendment isn't about preventing an inconvenience, it's about protecting people's ABILITY to commit crimes. Indeed what purpose does privacy serve if not to allow you to commit crimes? It doesn't mean you should be able to get away with it, but especially those who support the RKBA should recognize the importance of having the ability to commit crimes.

Why is that ability important? Well, why did the founders want such privacy when writing of the constitution? Because it was treason! It's the ability of people to commit such crimes which is so fundamental to freedom. It isn't freedom if you can't break the law... then it's just slavery.

wildbilll · Oct 9, 2008

Clearly the solution is to issue warrants for all of us. Then, forget to clear the system of these warrants. Then, they can stop us, search us and prosocute us for anything they find that is illegal. It won't matter that the warrants were bogus, cause it was a mistake not to clear them.

ilbob · Oct 9, 2008

The court should not have had to make up such a rule in the first place. This is properly the province of the legislature, but they are usually too cowardly to do it, so the courts have to come up with some way of ensuring due process.

I am not a big fan of allowing evidence to be admitted in court where there is a clear mistake (or misconduct) on the part of police. I don't truly care whether the problem was on the part of the officer making the arrest or some one else. If the state screws the pooch, the evidence should go out the door.

Ergosphere · Oct 9, 2008

I think the case does bring up an interesting question, namely, "What keeps the police from 'forgetting' to remove warrants from the system?"

wildbill has it. What's to keep authorities from 'mistakenly' (potentially on purpose) putting innocent names out for warrants? Note the recent case where MD police put dozens of peace activists on a terror watch list.

The way to prevent such abuse is to enforce accountability and consequences; the Court's approach appears (?) to move away from that. I understand Jeff White's argument here, but I think it's a dangerous proposition to void the exclusionary rule when there is no misconduct by the arresting officer. That weakens or destroys a very important restraint on government power.

It seems to me that the appropriate course is to exclude the evidence, while also removing liability to the arresting officer for the civil rights violation of the unconstitutional search (because it was done in good faith).

How many "good" guys do you think are saved by the exclusionary rule?

One problem with your argument is that it depends on your definition of a "good guy." I will submit that the man in question was probably not good; however, regardless of that fact, it is not good to encourage the authorities to violate 4th amendment protections. And some people think the government has no business prohibiting possession of drugs or firearms, regardless of the social value or damage caused by those items. (Personally I've never used drugs, but I note that the Constitution had to be amended to allow for Prohibition... and look how that worked out.)

And yes, improper searches of innocent people do occur.

nplant · Oct 9, 2008

Ergosphere said:
One problem with your argument is that it depends on your definition of a "good guy." I will submit that the man in question was probably not good; however, regardless of that fact, it is not good to encourage the authorities to violate 4th amendment protections.

This is about what I was thinking. The problem is (was, depending on the way you view it) that "good" guys can BECOME "bad" guys when the government changes the rules. So, today, we're all responsible gun owners, who obey the laws. Tomorrow, when Bush decides he doesn't want us to own guns, issues a declaration that privately held guns constitutes a crime against the republic, punishable by 20 years hard labor, do you want to rely on the "good guy" idea? I don't. I want at least that there is some technicality to get out of, even if the fight is just started. Better that than have to do 20 years for a technicality in the government's favor.

Bottom line is this - right, wrong or otherwise, the tie goes to the individual, not the state. That's how it always should be.

Kharn · Oct 9, 2008

Just because they've agreed to hear the case doesnt mean they're going to weaken the rule, they could also want to strengthen it.

Kharn

SCOTUS reviews the Exclusionary Rule

Member

Member

Member in memoriam

Member

Moderator Emeritus

Member

Member

Member

Member

Member

Member

Member

Member

Moderator

Member

Member

Member

Member

Member

Member

Member

Member

Member

Member

Member

Similar threads