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R.I.P., exclusionary rule?

Wednesday  saw the US Supreme Court hand down the 9th and 10th opinions  of the term.  Herring v. US is either the application of prior law to a narrow, fact-specific situation, or the harbinger of a good faith exception to the exclusionary rule for warrantless searches.  Oregon v. Ice could have some major ramifications for Ohio sentencing law.  We'll talk about Herring today, then bump the Case Update and 8th District stuff back a day next week to discuss Ice on Monday

First, Herring.  He'd had been busted based on an outstanding warrant, and when the police searched him incident to that arrest, they found drugs and a gun.  Ooops; turns out the warrant had been recalled months before.   Everybody agreed that made the arrest illegal; what remained was the question of what to do about it. 

Back in 1994, in Arizona v. Evans, the Court had held that a similar error didn't invalidate the search, but that mistake had been committed by a court employee, which left the Court an out:  excluding evidence to deter the police from future misconduct made no sense when it wasn't the police who'd made the error.   That argument wasn't available in Herring:  the people who'd screwed up were police employees.

The majority of the Court -- the four conservatives, plus Kennedy -- decided that didn't matter, and to be candid, despite the wailing and gnashing about the decision in some quarters of the defense bar, they have a point.  As I've mentioned before, the exclusionary rule has substantial costs, in the exclusion of relevant evidence.  A legitimate argument can be made that, if we're talking about suppressing evidence and allowing obviously guilty, and potentially dangerous, people to go free because of a simple negligent error, the game isn't worth the candle.  There was nothing in Herring to indicate that the error resulted from a systemic problem that the police had chosen to ignore, and it was impossible to discern what tossing the evidence would have accomplished other than letting Herring walk.

Rather than emphasize that suppression wouldn't have had any deterrent effect, however, Roberts' opinion for the majority reads like a screed against the entire concept of the exclusionary rule.   Exclusion "has always been our last resort, not our first impulse," the opinion informs us, "the rule's costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging its application," we are told, finally culminating with this:

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.  As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.

As a general statement, this isn't terribly objectionable, in the context of the factual situation in Herring.  Again, the case involved the simple matter of record-keeping, and given the complexities of that task in a modern society, it's not difficult to argue that mistakes happen, and when they do the exclusionary rule should be applied sparingly, in those situations where the police have made little or no effort to prevent or correct them.   But while the problem in Herring was small, the opinion's language is large:  it's as equally applicable to the cop on the beat as the clerk in the records room.  If that cop errs on the question of whether he possesses "reasonable suspicion" to make a stop, is that error "deliberate," "reckless," or "grossly negligent conduct," or, especially given the vagaries of 4th Amendment law, can we allow the evidence in by pigeon-holing the cop's conduct under the rubric of "ordinary" negligence? 

There will be some who read Herring as coming perilously close to establishing a "good faith" exception to warrantless searches.  My concern is that some of the people who will are sitting on trial and appellate benches.  Two years ago in State v. Oliver, Justice O'Connor wrote for five members of the Ohio Supreme Court that

the exclusionary rule and the concomitant suppression of evidence generate "substantial social costs" in permitting the guilty to go free and the dangerous to remain at large.  Because of that "costly toll," the courts must apply the exclusionary rule cautiously and only in cases where its power to deter police misconduct outweighs its costs to the public.

The quotes are from the US Supreme Court's decision a few months earlier in Hudson v. Michigan, which had held the exclusionary rule wouldn't be applied any more to knock and announce violations.  O'Connor found that "Hudson presents a significant and arguably new interpretation of the exclusionary rule," an observation which would have had more merit had Scalia's opinion in Hudson managed to garner a majority of that court.  It didn't.

The exclusionary rule is a convenient whipping boy because its results aren't transparent.  Its costs are:  we know every time a defendant gets off because evidence against him was thrown out.  Its benefits are not:  we can't count the people who aren't stopped or frisked or otherwise hassled because the police know they're not allowed to do that stuff.

I'm one who has ventured a concern about expanding the "good faith" concept to warrantless searches, and it may be that Herring is another waypoint on that path.  Or maybe not.  The idea of balancing each individual 4th Amendment violation against the costs imposed by the exclusionary rule is a bad one, and the idea of making determinations of whether an individual police officer's conduct was "deliberate" or some lesser degree of culpability is worse.  One of the great problems of 4th Amendment law is its complexity:  police officers are expected to make decisions in seconds that lawyers and judges debate for years.  Introducing yet another level of calculation, and of uncertainty, into this equation isn't going to wind up doing anyone any good.

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