Thursday, January 15, 2009

A warrant? Sure we have a warrant ... Don't we?

The Fourth Amendment allows police officers to conduct searches if they have a warrant based on probable cause, right? But what if the cops only think they have a warrant, but it doesn't actually exist? Well, that's all right, says the Supreme Court. The occasional inadvertent Bill of Rights boo-boo shouldn't stand as an impediment to the enforcement of the law.

The ruling, penned by Chief Justice John Roberts, came in the case of Herring v. United States (PDF). Bennie Dean Herring had driven to the sheriff's department in Coffee County, Alabama, to retrieve something from his impounded truck. Since Herring was apparently a regular acquaintance of local law enforcement, officials ran a check for outstanding warrants. One popped up from neighboring Dale County. Herring was searched, revealing methamphetamine and a gun, which the convicted felon wasn't allowed to possess.

But the warrant had been recalled five months earlier -- an error that was revealed only after Herring's pockets were turned inside out. Its listing in the computer database was a mistake. Police actually had no legal authority to stop Herring. Not surprisingly, his attorney made an issue of the non-warrant.

The matter worked its way up to the highest court, where Roberts and company were unimpressed by a (however unintentional) warrantless search.

"The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable— does not necessarily mean that the exclusionary rule applies," Roberts wrote. Later, he continued, "To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

Petitioner’s claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U. S., at 909–910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not “pay its way.” Id., at 907–908, n. 6 (internal quotation marks omitted). In such a case, the criminal should not “go free because the constable has blundered.”

Roberts's reasoning that the exclusionary rule has meaning only so far as it can deter deliberate misconduct is clear, but it seems remarkably naive coming from a jurist with extensive knowledge of the criminal justice system. It assumes that police are always diligent and don't respond to perverse incentives. In this case, the court has created an incentive for police to conduct warrantless searches so long as they can credibly claim that they thought that they had warrants because of poor recordkeeping. That is, the Herring ruling rewards sloppy and inaccurate records that over-report the number of warrants that are in play.

Without even engaging in overt fraud, police can put this ruling to bad use just by using sloppy databases -- especially if they're sloppy in the "right" way.

Roberts was joined in his ruling by Justices Scalia, Kennedy, Thomas and Alito.

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Anonymous A human like you said...

Help us, we are slaves, please someone do something for the love of god and all that is holy and right! THIS A MADHOUSE! Everyone needs to know that they are no longer safe in their own homes persons or cars! The police ALREADY keep poor records, THEY ALWAYS HAVE! Thank goodness for the second amendment and the first. Not that the first means anything after the patriot act... The second is pretty meaningless too considering the police carry automatic assault weapons. They have done everything to smash our rights and ability to protect ourselves into oblivion. HELP OMG! HELP! WE ARE HUMAN! HUMAN! How did that ever come to mean nothing!?

January 15, 2009 8:11 PM  
Blogger Michael Price said...

Of course the exclusionary rule is kinda stupid to start with. If a police officer violates someone's rights then he faces the terrible punishment of ... someone not being convicted! I mean why should a police officer care if someone gets convicted? It's not like he's paid by the collar. Indeed it seems ready made to enable officers to help their friends/informants get away with stuff. If you're innocent and they violate your rights you effectively get nothing.

February 6, 2009 4:33 AM  
Anonymous Anonymous said...

Well I have expierenced a situation where my rights in my own home were violated by law inforsement by getting a warrant based on hearsay coming from a person who had someone die in their house of a drug overdose. The girl told law inforcement that I gave him something that killed him...which was SO NOT TRUE!!!! She actually did! Nothing happened to her because she had 10 hours to clean out her house of the medication that she gave him...which she was perscribed...before she called the cops to come to her house about it. I was 27 years old with no criminal record and no lagit reason to come into my home where my child was sleeping in her bed. I was arrested for possesion of something that was a room mates...which I had just kicked out
for finding out that he was using in my home...and he took responsability for that stuff.
Then they showed up at mydoor 2 months
later and arrested me on the same charge just added with intent to sell just so I would not be elligible for drug court...which I had requested and was eligible for.
My life was ripped appart in one
night...losing my daughter in the process to DCF. This happened a lil over 2 years ago and I had to hire a private attorney to handle my case because I was not gonna just let them do that to me without a fight. Im happy to say that over 2 years of fighting to defend my legal rights the judge honored in my favor to suppress the warrant because they clearly went on hearsay from no one credable on a
hope and a prair that they would come into something big in my home...once again...THAT WAS NOT FACTUAL! So now my situation is that next month my
charges should be dropped completely for their HUGE mistake and bad judgment call. After that I feel that the county and all invloved owe me for the hell that I have went through for over 2 years for a crime I didnt commit. I want to sue them for what they did. For my bond
money, lawyer fees all the time from work for court and all types of classes. My pain and suffering, slander, deffermation of charicter, counciling for my child and myself, the fact that I cant get a job due to the 2 feonies and 1 mist hanging over my head. And so much more!!!! Im planning on looking for a good atterny to help in defending me and helping to get justice and to make sure that no one else has to go through what I expierenced. It has been HELL!!!! If anyone has anything that might help me in my journey in making them pay...please contact me by email. I would so much appreciate it. Im really at a loss for where to start and if anyone has any info or advice I would be so greatly thankful! My email is Thank you for taking the time to hear just a small part of my story and please contact me if there is any help out there available.

Thank you,

April 25, 2009 10:51 PM  

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