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A red Herring

A month ago, I discussed a case pending before the Ohio Supreme Court, in which it had accepted jurisdiction on a proposition of law that essentially argued for a "good faith" exception to the 4th Amendment for warrantless searches:  the exclusionary rule wouldn't be applied unless the police conduct was "the result of deliberate, reckless, or grossly negligent disregard of Fourth Amendment rights."  It turns out that this isn't an argument that prosecutors are seeking to have the Ohio Supreme Court adopt; according to at least one prosecutor I've dealt with, and from what I hear from other defense attorneys, prosecutors are claiming that the U.S. Supreme Court adopted this test two years ago in Herring v. United States

As I mentioned when I discussed the pending case, and when I recapped the decision in Herring, one could certainly make that argument:  Roberts' opinion was a long screed about the "societal costs" of the exclusionary rule.  Since it's now the New Big Thing for prosecutors to claim that Herring actually resulted in a major change in the law, I think it's time to take a closer look at that contention.

The major problem with the argument is that, if SCOTUS really did intend to apply a new test for the exclusionary rule, you would think they would have done so just a few months later in Arizona v. Gant.  In that case, they overruled New York v. Belton, in which they'd adopted a "bright line" rule that where the police arrested the occupant of a vehicle, they could search the interior of the vehicle incident to that arrest, despite the fact that the occupant had been removed from the car and no longer had access to anything in the interior.  In Gant, they held that the police could only search the car once the occupant had been removed if they had reason to believe that evidence of the crime could be found in the car.  If they really had adopted a test whereby exclusion would depend on whether the police officers' conduct had been sufficiently egregious, you'd think they would have bothered to mention it.

The second problem is that Herring presented a factual situation substantially different from that normally encountered in 4th Amendment cases.  The officers in Herring arrested the defendant on an outstanding warrant, and the search incident to that arrest discovered drugs; the warrant, it turned out, was no longer valid, but through oversight had been allowed to remain in the police data base.  The Court had held some ten years earlier that the failure of a court clerk to remove an invalid warrant didn't require exclusion of the evidence in that scenario, so Herring was little more than an extension of that precedent.  What's more, there's certainly some merit to Roberts' contention that applying the exclusionary rule in that context would not serve the rule's purpose of deterring police misconduct.  What was the arresting officer to do:  quiz the police clerk to make sure that the warrant was still valid?

The third problem with the prosecution's claim is that it's not like this hasn't happened before.  Scalia engage in a similar diatribe five years ago in Hudson v. Michigan, in which the Court held that the knock-and-announce rule was not constitutionally required, and henceforth violations of that rule would not trigger application of the exclusionary rule.  The claim that Hudson had articulated a new standard for determining whether evidence would be excluded was raised in several quarters, not least the Ohio Supreme Court, as I discussed here.  Yet Scalia provided the fifth vote in Gant, with nary a word about the "societal costs" of excluding evidence.

The fourth problem is that it poses the distinct possibility of making even murkier the morasse that is 4th Amendment law.  The good faith exception to warrant searches adopted in United States v. Leon in 1984 had some solid logical underpinnings:  it was hard to see how excluding evidence would deter police misconduct when the police had done precisely what the 4th Amendment commands by seeking a warrant.  Excluding evidence seized through a warrantless search has no similar logical justification, and introduces a whole new set of variables into the calculus of determining whether a search is valid.  I've written before of the challenges police officers face on the job in regard to search and seizure issues:  a decision they have to make in a split-second will be pored over for hours by people in suits and robes.  Now the officer has to guess not only whether those people will determine that his decision was wrong, but whether it was "deliberate, reckless, or grossly negligent."  It's hard to imagine a standard less clear.

Finally, there's the question of whether the complaints about the societal costs of the exclusionary rule have any validity.  As I explained in this post last year, courts make numerous errors in analyzing stop and frisk cases, the most common 4th Amendment scenario, but the primary problem is that they see only the costs of excluding evidence; they never see the benefit of deterring illegal police conduct.  If the police stop a car for no reason and find 20 kilos of cocaine, when that evidence is suppressed, that can be clearly identified as a cost of the exclusionary rule.  When police refrain from stopping twenty cars because they know if they find anything it will be suppressed, the benefit of allowing twenty people to go on their way without unwarranted police interference --- a clear benefit in a society that prizes liberty -- is never realized.

But it's there.

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