By Randy Means, Partner, Thomas & Means, Charlotte, North Carolina, and Chair, IACP Legal Officers Section; and Pam McDonald, Police Legal Advisor, McDonald Law Firm, Greenville, South Carolina
very law enforcement officer is familiar with the process of requesting a warrant check on a suspect, being told (eventually) that there is an active arrest warrant, and effecting the arrest based on that information. But what happens when the warrant turns out to have been recalled five months earlier? What about the search incident to arrest and resulting evidence, such as guns or drugs, or both? On January 14, in Herring v. United States,1 the U.S. Supreme Court ruled on these very issues.
An (Alabama) officer familiar with Mr. Herring (and his ways) learned that he was nearby, retrieving something from his truck at the sheriff’s impound lot. The officer proceeded to ask a clerk for a warrant check, who first informed him that there was no active warrant for Herring. The officer then requested that she check with the neighboring county, which reported that it did have an active arrest warrant for him. When the warrant clerk relayed that information, the officer conducted a vehicle stop of Herring and arrested him based on the officer’s understanding that there was an existing warrant. A search incident to the arrest revealed methamphetamine in Herring’s pocket and a pistol in the vehicle.
However, when the clerk went to retrieve the warrant, she found that it had been recalled five months previously and that this information had not been updated in the sheriff’s computer database. Only at this point was the officer advised of the mistake regarding the warrant. The entire incident took 10 to 15 minutes and occurred within a few hundred yards of the sheriff’s office. Because Herring had a previous felony conviction, the new evidence resulted in federal convictions. As a result of the mistake regarding the warrant, Herring’s appeals eventually reached the Supreme Court.
The issue before the Court was whether the good-faith exception to the exclusionary rule should permit the evidence from the search incident to arrest to be used against Herring, despite the erroneous nature of the arrest. The Court restated that the purpose of the exclusionary rule is deterrence of police misconduct and then decided that whatever police misconduct there was in this incident was not substantial enough to require exclusion of the evidence. Although the computer error was attributed to the police, the Court ruled that the mistake was an incident of isolated negligence separate from the arrest itself and that the potential deterrent effect on police misconduct that would come from excluding the evidence would be minimal, if any. The Court reasoned that the police error was made because of negligent bookkeeping by another sheriff’s employee, that the mistake was separate from the arrest, and that it was not an intentional act of misconduct by anyone, least of all the officer. In a similar case in 1995, Arizona v. Evans, the Supreme Court decided that evidence should not be suppressed when the error is made by a clerk who is not employed by a law enforcement agency.2 The Court left unanswered the issue of whether the evidence would be excluded if the error was made by a law enforcement agency—which is the issue addressed in Herring.
According to the Court, reasonable mistakes that happen in spite of honorable conduct by officers are not the kind of problems that the exclusionary rule is intended to address. Rather, the rule was created in response to egregious police conduct, and it continues to apply to exclude evidence when officers act with deliberate, intentional, or reckless disregard of a defendant’s rights or are grossly negligent in such matters. For example, if the officer in the Herring case had reason to believe that the system on which he relied for warrant information was routinely erroneous, or if he had actually known that the warrant for Herring had been recalled, then it would have been unreasonable for the officer to effect the arrest, and the exclusionary rule would apply.
Good-Faith Exception and Police Misconduct
The good-faith exception to the exclusionary rule will excuse an honest mistake made by a law enforcement officer, as long as the mistake is reasonable—that is, one that could be made by a reasonably well-trained officer. However, officers cannot take advantage of what they know to be a mistake and then claim that they acted in good faith. For conduct to qualify for the good-faith exception, officers must in fact act in good faith.
The Herring Court expressed renewed interest in the original intent of the good-faith doctrine as it was described in United States v. Leon, which acknowledged that when officers act reasonably, even if mistakenly, there is no deterrent value in the exclusion of evidence.3 Exclusion of evidence is not an individual right to which defendants are entitled whenever they suffer a constitutional violation. Instead, it is an “extreme sanction” that is imposed only when it is likely to accomplish the genuine benefit of deterring police misconduct.4
Even where evidence is derived from a violation of a defendant’s rights, an automatic exclusion of resulting evidence is not required. What is required is an analysis of the culpability of the officers involved, as well as an assessment of whether excluding the evidence would produce significant deterrence of future abuses by the police or whether such exclusion would simply be a windfall benefit to the defendant. The societal benefit of reducing police abuses gained by excluding the evidence must outweigh the societal cost of not allowing the evidence to be used against the defendant.
In Herring, the Court seemed to be impressed by the fact that the agency had a system in place that worked well and was reliable. In fact, both clerks testified that they could remember nothing similar ever happening on their watches. Failure to have and/or reasonably maintain such a system could prove to be the type of systemic error or failure that the Court acknowledged would result in suppression on facts such as those in Herring.
The Herring Court is quite explicit in its recognition of the negative impact of the exclusionary rule. When compelling evidence is suppressed by the Court, that decision often leads to the acquittal of an evidently guilty defendant; thus, the exclusionary rule can impose substantial societal costs. The rule should be applied to exclude evidence only when the beneficial effect of deterring law enforcement misconduct outweighs the detrimental impact that exclusion would inflict on the justice system and on society. Still, the Herring case should not be read to be a “blank check” to excuse constitutional errors committed by law enforcement officers; instead, the case simply reiterates the point that punishing officers for honest and reasonable mistakes does not advance the purpose of the exclusionary rule. ■
1Herring v. United States, 129 S. Ct. 695 (2009).
2Arizona v. Evans, 514 U.S. 1 (1995).
3United States v. Leon, 468 U.S. 897 (1984).
4Id. at 916.