The following column, featuring a selected petition up for consideration at the Justices' private conference on February 15, appears in today's edition of Legal Times (available to subscribers here). To see the full list of "petitions to watch" for Friday's conference, click here.

In the 1995 case Arizona v. Evans, the Supreme Court, by a vote of 7-2, upheld the search of a motorist mistakenly arrested after the local courthouse failed to inform the sheriff's department that a previous arrest warrant had been quashed.

In a concurring opinion, however, three justices "” Sandra Day O'Connor, David Souter and Stephen Breyer "” reserved the question of whether the "exclusionary rule" should apply if a mistaken arrest occurs due to the negligence of law enforcement, rather than judicial, personnel.

Nearly 13 years later, the justices have the opportunity to take up that question when they convene for their private conference on Feb. 15. The Court could announce a decision as soon as Feb. 19. (The petition is No. 07-513, Herring v. United States. Disclosure: Tom Goldstein is co-counsel to the petitioner.)

The arrest in question occurred in Alabama in July 2004, shortly after Bennie Herring left the Coffee County sheriff's department, where he had gone to retrieve personal items from an impounded vehicle. As Herring was about to leave, a county investigator named Mark Anderson arrived for work.

On a hunch, Anderson, who had a contentious history with Herring, asked a fellow employee to check whether Herring had any outstanding arrest warrants in the county. He had none. At Anderson's request, the employee next called to see if Herring had outstanding warrants in neighboring Dale County. By phone, an employee in the Dale County sheriff's department said computer records showed that Herring was in fact wanted for failing to appear on a felony charge.

Anderson and a deputy sheriff immediately left in pursuit of Herring. They pulled him over and, over Herring's protest, placed him in custody. Conducting a search incident to the arrest, the officers discovered methamphetamine in Herring's pocket and a gun under the front seat.

Minutes later, after being unable to find a physical copy of the arrest warrant, the Dale County employee called back to say she had been mistaken. Herring's warrant had been recalled five months prior, but the sheriff's department had failed to update its computer records.

At trial in the U.S. District Court for the Middle District of Alabama, the judge denied Herring's motion to suppress the evidence and, following conviction by a jury, sentenced him to 27 months in prison. A panel of the U.S. Court of Appeals for the 11th Circuit unanimously affirmed.

Noting that the exclusionary rule was created to deter police misconduct, rather than to remedy victims of unlawful searches, the panel found that courts should only suppress illegally obtained evidence when doing so could "result in appreciable deterrence" of future police misconduct.

While conceding that Herring's arrest violated the Fourth Amendment, the panel concluded that law enforcement already has sufficient incentives to keep criminal databases accurate. As examples, the panel listed authorities' interests in avoiding internal reprimands, civil liability for wrongful arrests, and the potential hindering of one of their own probes. The panel also reasoned that suppressing the evidence against Herring would foil the work of the department that made the arrest, not the one that provided the faulty data.

Herring's petition for certiorari, filed by Jeffrey Fisher of the Stanford Law School Supreme Court Litigation Clinic, maintains that courts have been divided over the question since even before the Court left it unanswered in Evans.

According to Fisher, some courts have found that the "good faith" exception to the exclusionary rule should apply to all inadvertent clerical errors, while others have suppressed evidence from searches made due to law enforcement negligence. Pointing to a factually similar case decided by the Arkansas Supreme Court, Fisher asserts that suppression would further "the need to deter "defective recordkeeping' by law enforcement as a whole."

Fisher also questions the assumptions underlying the 11th Circuit's ruling. The petition says that it's unclear whether the responsible employees were disciplined for Herring's mistaken arrest, that officers acting on misinformation would likely receive qualified immunity in a civil lawsuit, and that negligent record-keeping is not itself grounds for suit. Also, Fisher contends, the 11th Circuit's ruling actually gives authorities an incentive not to remove individuals from databases if arrest warrants are recalled. By contrast, the petition says, if prosecutors were "[f]aced with the possibility of exclusion, police departments [could] reasonably be expected to step up their efforts to keep computer records up-to-date and accurate."

Opposing certiorari, the federal government maintains that the 11th Circuit's ruling extends not to all negligent errors committed by police personnel, but only to those where law enforcement agencies that normally maintain accurate records inadvertently provide erroneous information to another agency. In such narrow circumstances, Solicitor General Paul Clement contends, courts may justifiably conclude that the costs of excluding illegally obtained evidence outweigh the benefits.

Clement maintains that arrests made under invalid warrants waste resources, and that police departments, like private employers, uniformly insist upon proper record-keeping. As for civil liability, the government contends that police officers are never guaranteed to receive qualified immunity, and municipalities may in fact face suit when errors result from official policies. In any event, punishing one law enforcement agency for the mistake of another would hardly serve as an effective deterrent for future errors, Clement says. "” Ben Winograd

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