# Police Error Leads to Arrest: Evidence Supressed? (Herring v. US)
**URL:** https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922
**Category:** Great Debates
**Created:** [October 8, 2008, 12:00am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922 "2008-10-08T00:00:59Z")
**Posts on this page:** 13
**Page:** 1
### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [October 8, 2008, 12:00am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/1 "2008-10-08T00:00:59Z")
[Here](http://www.supremecourtus.gov/oral_arguments/argument_transcripts.html) you can find the oral arguments in _Herring v. United States_.
The case runs [thusly](http://www.scotuswiki.com/index.php?title=Herring_v._United_States):
> [@from that link](#):
>
> 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…
>
> 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 Court has already ruled that clerical errors on the part of the court system _do not_ constitute a need to apply the exclusionary rule. What is at question here is whether that same standard should apply to the police. Indeed, in the oral argument, part of the question is just who counts as the police.
On behalf of Herring, Karlan argued that the exclusionary rule should be in place in this case, if for no other reason than to ensure better record-keeping. The government argued that there were already other measures in place to encourage good record keeping, and that the exclusionary rule would constitute a cost without any real benefit.
The Justices asked some tough questions, and for a moment I thought they were going to bring up my own concern. At issue were things like: is it a matter of _negligence_? Who, exactly, counts as “the police” if we adopt this rule? But to my mind the most pressing issue is: if the cops know that an “honest” mistake can lead to evidence admissable under the Fourth Amendment, is that an encouragement to _make_ “honest” mistakes?
> [@from the oral arguments](#):
>
> JUSTICE SCALIA: …I mean, this person would not have been stopped. I mean, if the difference was we – we caught a criminal and we could have convicted him except because of the clerical error we can’t, but that’s not the situation. They would never have found this fellow but for the clerical error.
>
> …
>
> JUSTICE SOUTER: But they also, as in this case, in the course of – of committing their – their negligent arrest find evidence of a crime.
> MR. DREEBEN: They do. But from an ex ante perspective, Justice Souter, they can’t know that, but they do have -
> JUSTICE SOUTER: They can’t know that, but we all know, as a practical matter, that that’s why police want the – the greatest scope to the arrest power.
> MR. DREEBEN: No, I think that -
> JUSTICE SOUTER: Because in the course of doing incidental searches, they find things. They know that, and we know that.
Justice Souter brings up some of my other concerns here. I don’t believe, as such, that cops are just assholes looking to get people in trouble, but it is their job to collect evidence for the purposes of prosecution. It _would_ make their job easier if less pretense were needed to collect evidence.
I don’t think the government makes a very strong argument in this case, but it does raise some questions worth considering. For instance, if the police were being very careful about this, hypothetically, they devote great resources to making sure all their warrants are valid, and let’s say that they end up with something like a 3% error rate: are we justified in _still_ applying the exclusionary rule? It would seem not, as they’re doing the best that they can. But then the question becomes, do we have to then hold a hearing for every case to determine whether the police were being _negligent_? Every case would become a circus. (How much should podunk, AK spend on ensuring valid warrants?)
If I were deciding this case, I think I would have to side with the petitioner, but only for the reasons that Souter mentions. The petitioner mentions: “…[\*\*\*\*U]nless 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.” [From the scotuswiki summary; not a direct quote] I agree with the government that, as such, there are other reasons why the police might not be negligent in record-keeping, but do we want to turn warrants into the next traffic stops? Because I think that is a real possibility. Someone doesn’t pay their city taxes (or some other civil issue) and a warrant is issued; cops don’t spend a ton of resources chasing down these warrants when there are more important things to do; and then someone deals with the issue and the warrant is removed. Now, what incentive, _really_, do the police have? If they are negligent, perhaps only by budget restrictions or something (not even a direct conspiracy), then this really does broaden their powers in inappropriate ways, IMO.
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### Author:  [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)
#### Post date: [October 8, 2008, 8:51am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/2 "2008-10-08T08:51:11Z")
There are a lot of oddities in the situation that I’m curious about. Why did the police go through such an effort to try to see if this guy had a warrant? Why was the car impounded to begin with? Why did the guy have a warrant in this other county, for a felony! and why was it rescinded? Why didn’t the rescinding notice get to the warrant officer?
I agree that the evidence should be excluded. Otherwise the police have an unnecessary temptation to make “mistakes”. It’s more likely that these errors will be used to harass people and be a corrupting influence than that they will set many dangerous criminals free.
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### Author:  [@Omniscient](https://boards.straightdope.com/u/Omniscient)
#### Post date: [October 8, 2008, 9:23am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/3 "2008-10-08T09:23:24Z")
> [@erislover](#):
>
> I don’t believe, as such, that cops are just assholes looking to get people in trouble, but it is their job to collect evidence for the purposes of prosecution. It _would_ make their job easier if less pretense were needed to collect evidence.
There is no expectation that the law make the police or prosecutions job easier. In fact, I think the general opinion is that it should make it difficult for them in order to ensure as low a rate of wrongful accusations as possible. Any implication otherwise is frightening.
No, cops generally aren’t just assholes looking to get people in trouble. But, all it takes is one to justify the application of the exclusionary rule as a matter of course.
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [October 8, 2008, 1:42pm UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/4 "2008-10-08T13:42:47Z")
> [@jackdavinci](#):
>
> There are a lot of oddities in the situation that I’m curious about. Why did the police go through such an effort to try to see if this guy had a warrant?
It seems almost like harassment. The justices question the government on this point, but stop short of making any accusations.
> [@](#):
>
> I agree that the evidence should be excluded. Otherwise the police have an unnecessary temptation to make “mistakes”. It’s more likely that these errors will be used to harass people and be a corrupting influence than that they will set many dangerous criminals free.
I agree. Basically, once you’ve had a warrant out, the police would have a “license to harass” by being negligent. It’s a disturbing power to allow the possibility of.
> [@Omniscient](#):
>
> There is no expectation that the law make the police or prosecutions job easier. In fact, I think the general opinion is that it should make it difficult for them in order to ensure as low a rate of wrongful accusations as possible. Any implication otherwise is frightening.
Yes, I agree; I do seem to have implied otherwise in that quote, but I do not think we should necessarily aim to make _that part_ of the cops’ job easier. (Other parts…)
> [@](#):
>
> But, all it takes is one to justify the application of the exclusionary rule as a matter of course.
Hehe. The government brings up the cost of the exclusionary rule, and one of the justices practically jumps the guy for not having any numbers. But seriously, there’s a pretty big cost to society in terms of the exclusionary rule, and I don’t think it should be applied particularly lightly, but in this case? Yeah, a decision to not throw out this evidence could definitely engender the exact behavior excluding the evidence was meant to eliminate.
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [October 16, 2008, 7:18pm UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/5 "2008-10-16T19:18:41Z")
Not to toot my own horn, bumping a thread that there wasn’t much interest in, but in reading some of the background cases I came upon a most startling comment from _United States v Leon_.
> [@Justice Brennan](#):
>
> …I am not at all confident that the exception unleashed today will remain so confined. Indeed, the full impact of the Court’s regrettable decisions will not be felt until the Court attempts to extend this rule to situations in which the police have conducted a warrantless search solely on the basis of their own judgment about the existence of probable cause and exigent circumstances. When that question is finally posed, I for one will not be surprised in my colleagues decide once again that we simply cannot afford to protect Fourth Amendment rights.
This case is _not quite_ the example in question, but it did make me open my eyes a bit, not just because of this case (Herring) but another that whose oral arguments were heard recently, _Arizona v. Gant_, about probable cause to search vehicles.
While I feel that the exclusionary rule interpreted as a deterrent is not totally unreasonable, every bit of Brennan’s dissent in _Leon_ could have come from me, were I in his position. At one point I couldn’t help but slam my hand on the lunch table at work and exclaim, “Damn right!” Interested parties should [read the case](http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=468&page=897) (findlaw link).
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### Author:  [@E-Sabbath](https://boards.straightdope.com/u/E-Sabbath)
#### Post date: [October 16, 2008, 11:39pm UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/6 "2008-10-16T23:39:53Z")
I’m certainly _interested_, I just don’t have much to say. Thanks for the case link, though.
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### Author:  [@Snowboarder\_Bo](https://boards.straightdope.com/u/Snowboarder_Bo)
#### Post date: [October 17, 2008, 3:27am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/7 "2008-10-17T03:27:32Z")
I second what **E-Sabbath** said.
I am very interested, but IANAL so for now I’ll just follow along quietly from my seat in the back row.
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### Author:  [@Nuveena](https://boards.straightdope.com/u/Nuveena)
#### Post date: [January 15, 2009, 1:39am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/8 "2009-01-15T01:39:49Z")
I hope it’s okay to revive this thread rather than starting a new one (it’s within 3 months, everyone’s still active, there are no arguments to wade through). Maybe there’ll be more interest now that the election is over.
The Supreme Court affirmed the lower court’s ruling 5-4. The decision is [here](http://www.supremecourtus.gov/opinions/08pdf/07-513.pdf) (PDF). Here’s the gist.
[QUOTE=Chief Justice Roberts]
When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.
[/QUOTE]
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### Author:  [@UltraVires](https://boards.straightdope.com/u/UltraVires)
#### Post date: [January 16, 2009, 1:43am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/9 "2009-01-16T01:43:20Z")
IANAL, but I would think that the exclusionary rule should be for the benefit of a citizen as well as a disincentive for police.
So, if I pay a traffic fine, and the police mistakenly come to execute an arrest warrant because the payment wasn’t processed, it is bad enough that I was inconvenienced by a trip to the pokey when it shouldn’t have happened, but to also be charged with other illegal stuff incidental to that?
My privacy was violated, intentional or not. I shouldn’t have to suffer the penalty…
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### Author:  [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)
#### Post date: [January 16, 2009, 8:10pm UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/10 "2009-01-16T20:10:31Z")
Of course, the fact that the guy went to the police station _with meth in his pocket_ shows that stupidity should be a criminal defense.
But anyway. The exclusionary rule is stupid (and yes, I’m a liberal). Better results would arise from making the police department, D.A.'s office, etc., liable for civil damages for collection/use of evidence obtained without a warrant. The damages would be loss of income for the period in which the defendant is incarcerated after conviction
Make it a black line rule - no exceptions (except for inevitable discovery). And make it that the defendant cannot be forced to give up the right to sue as part of a plea bargain.
Two benefits of this approach. First, it hits the police and D.A. where they pay attention - the wallet. Second, it allows the D.A. to make a decision - is it worth the hit to the wallet to get this guy off the street? No conviction, no damages.
Sua
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### Author:  [@erislover](https://boards.straightdope.com/u/erislover)
#### Post date: [January 16, 2009, 9:59pm UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/11 "2009-01-16T21:59:27Z")
**Sua** , what is the difference from a perfectly enforced Fourth Amendment and a poorly-enforced Fourth Amendment with a well-applied exclusionary rule? I feel like a loosely-applied exclusionary rule is just a way around the Fourth. But a way around the Fourth is already provided: amend the Constitution. This kind of weaseling gets me queasy.
Since this thread, I’ve really had to rethink my position on the exclusionary rule. I feel like it should be applied practically without exception. I’ll stick with inevitable discovery, if only out of a shameless devotion to some kind of compromise and the semblence of pragmatism, but these other things? --Even the clerical errors: too bad for the government. If we’re going to throw away the Constitution whenever it is inconvenient for government agents, why have a Constitution?
> [@](#):
>
> Better results would arise from making the police department, D.A.'s office, etc., liable for civil damages for collection/use of evidence obtained without a warrant. The damages would be loss of income for the period in which the defendant is incarcerated after conviction
>
> Make it a black line rule - no exceptions (except for inevitable discovery). And make it that the defendant cannot be forced to give up the right to sue as part of a plea bargain.
I don’t like the idea of punishing people first, then making up for it, when we shouldn’t have been able to punish the individual at all, if we had any respect for our own laws.
Thanks for this bump, all. Before I spout any more nonsense and froth at the mouth I’m going to actually read the opinion. They sometimes have a way of convincing me.
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### Author:  [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)
#### Post date: [January 16, 2009, 10:07pm UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/12 "2009-01-16T22:07:24Z")
I agree with Breyer’s dissent. Make police administrative errors subject to the exclusionary rule while maintaining the good faith exception for judicial administrative errors.
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### Author:  [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)
#### Post date: [January 17, 2009, 12:43am UTC](https://boards.straightdope.com/t/police-error-leads-to-arrest-evidence-supressed-herring-v-us/466922/13 "2009-01-17T00:43:05Z")
I’d say the police should be held to some standard of due diligence. I don’t know the specific details of how the Dade County records office works but they should have a system that lets them determine whether or not a warrant is active. It’s reasonable to expect the police to have a working system for this type of information.