Negligence is alright - as long as you are the police
I'm late jumping in on this, but I've been in trial for the last two weeks. It seems everyone has put forth their opinion on the impact of Herring v. United States, where the court held an innocent mistake was not enough to invoke the application of the Fourth Amendment. A good collection of those posts can be found here. Predictably, some have declared the decision the death of the Fourth Amendment. I wasn't surprised by the decision; I would have been if they decided for the defendant. However, I don't think it spells the end of the exclusionary rule; I think the court won't abandon it, because it makes them feel like they are doing something to uphold the Fourth Amendment.
The rationale for the exclusionary rule is that it acts as a deterrent. The argument is that if there is no sanction, there is no reason for the police to comply. The rationale makes sense; a rule without a remedy is basically no rule. The court recognized though that the consequences of excluding evidence can be detrimental to law enforcement; you are keeping out what is probably the most probative and relevant evidence of guilt. The court basically adopted a sort of balancing approach. As a result, concepts such as good faith have emerged.
In Herring, the defendant was stopped, and placed under arrest when the officers were told there was an outstanding warrant. Evidence of illegal activity was recovered, and he was prosecuted. It turned out there was no valid warrant at the time; it had been withdrawn, and the clerk had not removed it from the system. Mr. Herring moved to suppress the evidence recovered following his arrest, arguing there was no probable cause to arrest him, because there was not a valid warrant. The Supreme Court held that the mistake by the record's clerk was not enough to invoke the application of the exclusionary rule.
In the decision, the Court concluded that application of the exclusionary rule in this circumstances would not encourage better record keeping. The court viewed the incident as a mistake, that was at best negligence. It was not not the sort of deliberate or reckless act the exclusionary rule was designed to curb.
The question is how far this ruling is going to be applied. I don't know how often mistakes like this are made. I know I've had a couple of similar situations over the years. Mistakes are going to be made, but I don't I do not think that relieves agencies of responsibility for the actions. For example, an agency couldn't adopt a policy of not removing old warrants, because that would establish some type of systemic problem. There may also be an issue if the agency knows there are widespread problems with their records. However, what about less compelling situations.
The problem with the Court's reasoning thoughout the years is they assume decisons are thought out, and rational. In reality, most decisions to search or arrest are made on the spur of the moment. They are also made by people who do not have signficant legal training. Rarely are issues clear cut; more often than not, there is no readily available answer. Just look at how much time lawyers and judges spend assessing a situation, and determing the applicable law. The more exceptions you have, the more you encourage police to ignore the fourth amendment. If all you have to do is claim you were mistaken, why would you ever forego a search or arrest.
The job of protecting the Fourth Amendment is left to the courts; not the police. If its worth protecting, then we should do everything we can to ensure compliance. The more exceptions you create, the more you encourage its violation. After all, until the wrong decision truly has consequences, you have no reason to take it seriously.
So my prediction is we will continue to have a exclusionary rule, so the Court can claim it is protecting the constitution. And the Fourth amendment will continue to violated on a daily basis because there is no reason not to.
