I’ve finally found the right time to make my long-desired trip to see oral argument at the United States Supreme Court: it will be this October 7, during the morning session.
This morning, the Court released the schedule for the first month of its next term. On the calendar is a case that I’ve been following, Herring v. U.S. In Herring, police in Georgia arrested Bennie Dean Herring (what a name!) after a neighboring police department reported that there was a warrant for his arrest. The police, relying up on that report, arrested Herring, searched him incident to arrest, and found that he possessed methamphetamine. Later, we learned that the neighboring police department had made an error and there was no warrant for Herring’s arrest when he was arrested. The meth found on Herring should have been suppressed the fruit of an unlawful arrest and the charges against him dropped.
Generally, when the police arrest someone without probable cause any evidence found incident to the arrest is suppressed based on what the court calls the “exclusionary rule.” Since the sixties, when the rule was introduced, the Court has steadily narrowed the application of the rule. One of the exceptions is that when the police rely upon an erroneous report from a court that a warrant exists, they may still use evidence obtained from the unlawful arrest. The idea is that the police relied in good faith on the information; in simpler terms, “it’s not their fault.”
Herring claimed that in this case, the report came from a law enforcement agency, not a court, and that law enforcement can’t rely in good faith on itself to get around the Fourth Amendment. The Eleventh Circuit, astonishingly, disagreed with this argument. And a cert grant later, here we are before the U.S. Supreme Court.
The Eleventh Circuit’s reasoning quite effectively reveals that the current approach to the exclusionary rule does the right thing for the wrong reason. It suppresses evidence obtained unlawfully– that’s good– but does so only to deter police misconduct– that’s not so good, because it allows the police to act unlawfully, claim good faith, and still proceed as if they hadn’t done anything wrong. Since I spent about two years listening to claims of good faith by police officers after misconduct, I’m fairly skeptical of those claims. In candid moments, police officers have even boasted to me of the connivery they employed to employ good-faith rules to their advantage.
In my view, the proper reason for the exclusionary rule is that it is the only remedy that sufficiently restores the defendant to her position before the arrest. It’s irresistibly simple and fair, but not too popular with courts, apparently.
Whatever the rationale, I love the exclusionary rule. The government, especially the U.S. Supreme Court, frequently doesn’t do the Right Thing. (This unfortunate point has been eminently clear to me after only one day of Erwin Chemerinsky’s wonderful BarBri constitutional law lectures. Countless times this evening I muffled sighs and grunts of disbelief and we haven’t even covered equal protection yet. Perhaps I should take a mild sedative before tomorrow’s class, when we will.) But here, even if for the wrong reason, and even in woefully limited circumstances, the rule is my government doing the right thing, and for criminal defendants, no less! It’s my kind of rule.
My teacher and friend Charlie Whitebread, a fellow fan of the exclusionary rule, has expressed optimism to me that the Court will not affirm the decision. Charlie is more of an expert in this that I’ll ever be, but my pessimism here overcomes me.
So, if the Court decides to make Herring yet another board of dry plywood to fasten to the exclusionary rule’s pyre, I’ll be there to see to see it.