During the summer months, we’ll be periodically posting wiki previews for OT 2008 cases. Akin summer associate and rising Georgetown Law 3L Ashley Kircher offers us this first post, below. Be sure to check the Herring wiki page throughout the summer for additional updates.

I. Argument Preview

In Arizona v. Evans (1995), the Supreme Court held that the exclusionary rule did not apply to evidence seized incident to an arrest that was unlawful under the Fourth Amendment because it was based on erroneous information negligently provided by a court employee. The question now before the Court is whether the exclusionary rule also applies when the erroneous information is negligently provided by law enforcement personnel. 

II. Background

This case stems from petitioner Bennie Dean Herring's arrest in Coffee County, Alabama. In July 2004, Herring drove to the Coffee County Sheriff's Department to retrieve some personal possessions from an impounded vehicle. When Coffee County Investigator Mark Anderson learned that Herring was at the impound lot, he asked Sandy Pope, the Department's warrant clerk, to check the county database to see whether any warrants for Herring's arrest were outstanding. Pope informed him that she saw no active warrants for Herring in Coffee County. Anderson then asked her to find out whether there were any outstanding warrants for Herring in neighboring Dale County. Pope telephoned Sharon Morgan, the warrant clerk for the Dale County Sheriff's Department, who checked her database and told Pope that there was an active warrant in Dale County charging Herring with failure to appear on a felony charge. Pope relayed that information to Anderson and asked Morgan to fax over a copy of the warrant.

Anderson and a Coffee County deputy sheriff followed Herring as he drove away from the Sheriff's Department, pulled him over, and arrested him pursuant to the Dale County warrant. Searches of Herring and his truck incident to the arrest turned up methamphetamine in Herring's pocket and a pistol under the front seat of the truck. At the same time, after Morgan failed to locate a copy of the actual warrant for Herring's arrest, she called the Dale County Circuit Court Clerk's Office and was informed that the warrant had been recalled. Although Morgan immediately relayed this information to Pope, who in turn transmitted it to the two Coffee County officers, the arrests and searches had already been carried out. Approximately ten to fifteen minutes had elapsed between the time that Morgan had told Pope that an active warrant existed and the time that Morgan called her back to correct that statement.

Herring was indicted on charges of possessing methamphetamine and being a felon in possession of a firearm. He moved to suppress any evidence of the drugs and firearm, arguing that because the arrest warrant on which the officers relied had been rescinded, the searches did not take place incident to a lawful arrest. The district court denied Herring's motion. Instead, it adopted the magistrate judge's conclusion that application of the exclusionary rule would not deter future mistakes, as the arresting officers had acted on a good faith belief that the warrant was still outstanding and had found the drugs and firearm before learning the warrant had been recalled. The district court also made the additional finding that the erroneous warrant information appeared to be the fault of Dale County Sheriff's Department personnel, rather than anyone in Coffee County. A jury convicted Herring of both counts, and he was sentenced to twenty-seven months' imprisonment.

On appeal, Herring's sole contention was that the district court erred in denying his motion to suppress. The Eleventh Circuit affirmed. The court explained that although the searches violated Herring's Fourth Amendment rights, whether the evidence obtained through those searches must be suppressed was a separate question. Turning to its exclusionary rule analysis, the court of appeals noted that the Supreme Court in Arizona v. Evans had expressly declined to decide whether the exclusionary rule should apply when police personnel, rather than court employees, are responsible for a clerical error resulting in an unlawful search or seizure.

Instead, the court of appeals relied on the Court's decision in United States v. Leon, which it interpreted to require the satisfaction of three conditions before the exclusionary rule will be applied: (1) "there must be misconduct by the police or by adjuncts to the law enforcement team"; (2) application of the exclusionary rule must result in "appreciable deterrence" of that misconduct; and (3) "the benefits of the rule's application must not outweigh its costs." In the court's view, the first condition was met because the failure by the Dale County Sherriff's Office to record the recall of the arrest warrant was "at the very least negligent." However, the court found that the second condition was not met because application of the exclusionary rule would not deter bad record-keeping to any appreciable extent. The court reasoned that although deterrents work best when the targeted conduct results from conscious decision making, the conduct at issue in this case was merely a failure to act; that the exclusionary sanction would not be levied against the department which was guilty of negligent record-keeping, but instead against a different department in another county that was entirely innocent of any wrongdoing; and that there are already abundant incentives for keeping records current, including "the inherent value of accurate record-keeping to effective police investigation," "the possibility of reprimand or other job discipline for carelessness," and "the possibility of civil liability if the failure to keep records updated results in illegal arrests or other injury." Nor, in the court's view, was the third condition met: "any minimal deterrence that might result . . . would not outweigh the heavy cost of excluding otherwise admissible and highly probative evidence." Finally, the court emphasized that the good faith exception does not shelter evidence obtained in an unconstitutional arrest or search that was based on objectively unreliable information; thus, if faulty record-keeping were to become endemic in Dale County, officers in Coffee County would have a difficult time establishing that their reliance on records from Dale County was objectively reasonable.

III. Petition for Certiorari

Herring articulated four justifications for granting certiorari. First, the federal courts of appeals and state courts of last resort have been deeply divided over the question of whether the exclusionary rule applies when clerical errors by law enforcement agents, rather than court employees, lead to illegal arrests and searches. Moreover, because this conflict is deeply entrenched and turns on how to interpret the Fourth Amendment and Supreme Court precedent, the Supreme Court is the only institution that can resolve the dispute, and the need to do so is particularly pressing because a state court of last resort within the Eleventh Circuit had reached a decision directly opposed to that of the Eleventh Circuit.

Second, the question of how to apply the Fourth Amendment's exclusionary rule in cases involving law enforcement's clerical negligence is a recurring and important one in the criminal justice system. As policing becomes more reliant on computerized systems, the number of illegal arrests and searches based on negligent record-keeping is poised to multiply, and prosecutors, defense lawyers, and courts need to know whether this illegally obtained evidence can be used.

Third, this case presents a "perfect opportunity" for the Court to decide whether the exclusionary rule applies to evidence seized in an unconstitutional search caused by a law enforcement agent's clerical negligence, as the arrest and search in this case derived from precisely the same sort of error addressed in Arizona v. Evans, with the crucial distinction that here a law enforcement agent, rather than court personnel, was responsible for the error. Herring also argued that the case is an ideal vehicle for resolving the question presented, as the parties agree on the central facts.

Fourth, the Eleventh Circuit's decision cannot be reconciled with Supreme Court precedent, arguing that it is "appropriate and necessary to enforce the exclusionary remedy" when employees of any law enforcement agency working in collaboration with arresting officers negligently make clerical errors that trigger groundless arrests and searches. Indeed, Herring argues, the Supreme Court "has never wavered from the judgment that imposing the exclusionary rule in criminal trials is necessary when law enforcement's mistakes or malfeasance allow it to illegally obtain evidence that it otherwise would not have acquired." Herring also disputed each aspect of the Eleventh Circuit's reasoning: in his view, negligent omissions can be deterred as effectively as conscious decisions; unless the exclusionary rule applies, law enforcement departments have no incentive to expunge recalled or otherwise invalid warrants from computer databases; there is no reason to believe that law enforcement agents will be disciplined for negligent record-keeping; and it will be virtually impossible for illegal arrest victims to obtain redress.

Opposing certiorari, the government advanced three basic arguments. It first asserted that, contrary to Herring's argument, the Eleventh Circuit did not extend Evans to all negligent errors by law enforcement; rather, the court narrowly held that application of the exclusionary rule was inappropriate in the unique circumstances of Herring's case. The government argued that a categorical approach with respect to police clerical errors is not mandated by Supreme Court precedent and that the exclusionary rule should only be applied when its remedial objectives are "most efficaciously served." In Herring's case, the following factors weighed in favor of non-application of the exclusionary rule: the error was negligent rather than deliberate, the error was made by a different law enforcement agency than the one that made the arrest, the record-keeping system at issue was generally reliable, and the evidence at issue was highly probative and intrinsically reliable. The government also argued that there is already an incentive for police departments to maintain accurate records because an arrest pursuant to an invalid warrant will often be a fruitless waste of police resources, that there is no reason to believe that police department employees are not subject to discipline for shoddy record-keeping, and that the threat of civil litigation may provide an effective deterrent to police errors that cause unlawful arrests.

Second, the government disputed Herring's contention that the conflict among the courts regarding the question presented is "deeply entrenched." Since Evans was decided, the government explained, no other federal court of appeals had issued a published decision addressing the precise question presented in this case "“ viz., whether the exclusionary rule applies when a police officer makes an arrest based on objectively reasonable reliance on incorrect information from a different law enforcement agency; moreover, the only unpublished decision to have considered the issue reached the same conclusion as the Eleventh Circuit. In any event, the government continued, the Eleventh Circuit's decision did not directly conflict with any of the state supreme court decisions cited by Herring, as those cases were factually distinguishable.

Third, the government sought to undermine Herring's remaining arguments in favor of certiorari. It emphasized, for example, what it regarded as Herring's failure to cite evidence to suggest that warrantless arrests based on the type of error that occurred in his case were an increasing or significant problem. Moreover, it argued, the case did not present an appropriate vehicle for considering the ways in which computer technology has changed the nature of threats to citizens' privacy because it did not involve a database created, maintained, or accessed by multiple law enforcement agencies. Because the overall reliability and usefulness of large-scale law enforcement information systems was not at issue here, consideration of whether the good faith exception should extend to situations where police rely on erroneous information contained in such systems "should await a case where those issues can be thoroughly explored."

The United States Supreme Court granted Herring's petition for certiorari on February 19, 2008.

IV. Merits Briefing

In his merits brief, Herring presents three main arguments supporting his contention that application of the exclusionary rule is required in his case. He begins by arguing that because law enforcement's own errors caused his unconstitutional arrest and search, the exclusionary rule requires that evidence found in the search be suppressed. Herring's argument is that law enforcement should be precluded from profiting from its own illegality, and that exclusion is the traditional remedy when, as here, the government seeks to introduce evidence it has obtained solely by violating a defendant's Fourth Amendment rights.

Second, Herring asserts that the "good faith" exception to the exclusionary rule for illegal searches resulting from judicial errors does not apply to this case, in which the illegal search resulted from law enforcement errors. Quoting Evans, Herring emphasizes the distinction between judicial errors and law enforcement errors by pointing out that unlike members of law enforcement, "court clerks are not adjuncts to the law enforcement team engaged in the often competitive enterprise of ferreting out crime." Here, Herring asserts, the exclusionary rule retains full force regardless of whether the Fourth Amendment violation at issue was committed by one law enforcement agent or several agents acting collectively, and the dispersion of relevant knowledge among law enforcement agents does not insulate their actions from Fourth Amendment principles. Moreover, because police departments are obligated to respect the Fourth Amendment, it is fair and reasonable to expect them to establish procedures to ensure communication of all relevant information regarding the status of a warrant to every officer who seeks to rely on that warrant. Finally, because Alabama law treats sheriff's departments as part of a statewide system, the errors of the Dale County Sheriff's Office personnel are fairly chargeable to the Coffee County officers who arrested him.

Third, Herring asserts that nothing about the nature of negligent police record-keeping justifies creating an exception to the exclusionary rule. He argues that if evidence seized pursuant to arrests based on inaccurate reports regarding the existence or status of a warrant could be used in criminal prosecutions, perverse incentives would arise with respect to police record-keeping, such as a push to structure operations so as to leave officers in the field ignorant of deficiencies in record management. Herring argues that applying the exclusionary rule would counteract these incentives and that there are no alternatives to the exclusionary rule that can provide adequate deterrence. Herring asserts that giving law enforcement officials incentives to maintain accurate records has become more pressing because the number of cross-jurisdictional inquiries is increasing and the problem of inaccurate record-keeping by police personnel is already a significant issue.

The case is set for oral argument on October 7.

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