Squaring the Culture




"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

01/17/2009 (4:39 am)

Exclusionary Rule Not Reversed

A few days ago, I wrote that the Exclusionary Rule had been reversed when the Supreme Court announced their decision in the case of Herring v US. After reading the decision, it’s apparent that the Exclusionary Rule has survived to ruin another day.

Herring v. US involves a defendant who was a known trouble-maker who came to the precinct to get something of his from a car that had been impounded. While he was there, police checked their own county records (Coffee County) to see if there were outstanding warrants for his arrest, and called the next county (Dale County) to see if they had any outstanding warrants on the guy. Dale County said there was, so the police detained him, searched him, and found drugs and an illegal firearm (Herring is a convicted felon who is not permitted to own a weapon). After they searched him, the clerk from Dale County called back and said, “Oops, the warrant was reversed five months ago, we forgot to update the computer.” Coffee County prosecuted Herring anyway for the drugs and the gun. He appealed his conviction, complaining that the search was in violation of his 4th Amendment rights (which prevent the government from performing unreasonable searches.) The 11th Circuit upheld the conviction, saying that the Exclusionary Rule — the one that says evidence gathered in violation of the 4th Amendment cannot be admitted in court — only applies when it’s deterring police misconduct, and there was no misconduct in this case. Dale County was negligent, said the 11th Circuit, but not reckless or deliberate in serving the improper warrant.

Justice Roberts wrote the decision upholding the decision of the 11th Circuit Court, saying that there exists in case law surrounding the Exclusionary Rule a “good faith” rule that basically says that if the police acted in good faith the evidence they gather need not be excluded. The basic idea is that the Exclusionary Rule exists to punish the police for violating peoples’ rights. When the cops break down your door with no reason, the courts want to make sure the police don’t benefit, so they exclude the evidence (I know, it makes no sense. They should prosecute the police and make them pay for your door.) If the police are not deliberately trying to violate your rights, but instead are acting as any reasonable officer would to adhere to the law, then there’s no reason to exclude evidence. Roberts made it clear that he’d consider it bad faith if Dale County consistently made errors in their warrants database, but that didn’t seem to be the case.

Justice Ginsberg wrote a dissent (joined by Souter, Breyer, and Stephens) basically saying “The Exclusionary Rule is the defendant’s only protection, and it’s important to punish Dale County’s clerical flub.” She wants the Exclusionary Rule to apply further than it historically has, and demands perfection. It strikes me that Justice Ginsberg forgets the purpose of the criminal justice system, namely to protect the people from criminals. Instead, she thinks the police are there to create a Constitutionally pristine system. They’re not; that’s her job, not theirs. Their job is to protect the people. Ginsberg wants to sacrifice the good of the people for the sanctity of the law. She reminds me of the librarian in the town library where I grew up, who wanted so badly to protect the books that she hated lending them out. Legalism always sacrifices the people for the sake of the law, forgetting that the law exists to serve the people.

Justices Breyer and Souter added in a separate dissent that previous cases distinguished between court clerical errors and police clerical errors, and that this case involved police clerical errors. They’re correct about the previous cases; Roberts agreed, but said there was no misconduct to deter, so the Exclusionary Rule need not apply. I agree with Roberts, but this dissenting opinion was more reasonable than Ginsberg’s.

It was a sensible decision, but not a major change in law. I’ve corrected my previous post on the subject to reflect this.

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