Considerations on Herring v. United States and the exclusionary rule

"Majesty" or truth?, by Bill Otis
PowerLine Blog, January 21, 2009 at 10:09 PM

Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.

My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:

In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.

Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.

The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."

The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.

Some observations:

1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.

The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.

If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.

2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.

The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.

3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.

One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).