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THE LIMITS OF THE EXCLUSIONARY RULE, FROM WEEKS TO HERRING. ARE WE SECURE IN OUR PERSON?

The fourth amendment to the Constitution of the United States provides protection for the people of this nation from unreasonable searches and seizures. What rights and safeguards do we have to prevent such unreasonable searches and seizures? For decades, the United States Supreme Court has tried to provide direction to the courts and law enforcement officers as to what constitutes an unreasonable search and/or seizure and what effect such unreasonable searches and seizures will have on the admissibility of evidence so obtained. This article will examine the most recent and significant additions to the ever evolving exclusionary rule jurisprudence from the United States Supreme Court.

Arguably the most significant search and seizure case coming out of the United States Supreme Court in the last century was Weeks v. United States, 232 U.S. 383 (1914). In Weeks, supra, the United States Supreme Court, in a unanimous decision, held that illegally obtained evidence, by way of unreasonable warrantless search of an arrestee’s home, is inadmissible as evidence against the accused. In so holding, the Court reasoned, in part: “[i]f letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the 4th Amendment, declaring his right to be secure against such searches and seizures, is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution.: Id., at 393. The Court reasoned that the exclusionary rule, as it would come to be called, would act to deter officers from violating the basic principles set forth in the Constitution. The Court further reasoned that if the courts were to allow evidence obtained during an unreasonable search to be admitted into evidence, “such proceeding would be to affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action.”

I.d., at 394. Thus was born the exclusionary rule which, prior to Mapp v. Ohio, 367 U.S. 643 (1961), applied only to federal courts.

In Mapp, supra, the Court extended the enforcement of the exclusionary rule to the states by way of the Fourteenth Amendment’s due process clause, and effectively “closed the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct.” Id., at 654-655.

Recent case law, however, suggests that the “courtroom door” closed by the Court in Mapp, supra, may soon be pushed open by the Roberts Court.

In Hudson v. Michigan, 547 U.S. 586 (2006), the Supreme Court, in a 5 to 4 decision, held that evidence obtained by law enforcement officers in violation of a “knock and announce” rule while executing a search warrant is not subject to suppression. In so holding, Justice Scalia, writing for the majority, stated, in part:

Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates “substantial social costs”…which sometimes include setting the guilty free and the dangerous at large. We have therefore been “cautio[us] against expanding” it,…and “have repeatedly emphasized that the rule’s “costly toll” upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application,”…We have rejected “[i]ndiscriminate application” of the rule,…and have held it to be applicable only “where its remedial objectives are thought most efficaciously served,”…that is, “where its deterrence benefits outweigh its “substantial social costs,”…(Citations omitted).

Justice Scalia further writes that “exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence. Our cases show that but-for casualty is only a necessary, not a sufficient, condition for suppression.”

In Hudson, supra, the majority opinion cited heavily from United States v. Leon, 468 U.S. 897 (1984), in which the United States Supreme Court created the “good faith” exception to the exclusionary rule. In Leon, supra, the Court held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion”. In creating this exception to the exclusionary rule, the Court in Leon, supra, quoted Michigan v. Tucker, 417 U.S. 433 (1974):

The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in willful, or at the very least negligent, conduct which has deprived the defendant of some right. By refusing to admit evidence gained as a result of such conduct, the courts hope to instill in those particular investigating officers, or in their future counterparts, a greater degree of care toward the rights of an accused. Where the official action was pursued in complete good faith, however, the geterrence rationale loses much of its force.

Id.,at 447

Thus, in creating the good faith exception to the exclusionary rule, the Court inLeon,supra, acknowledged that the exclusionary rule can apply to negligent police conduct which violates the Fourth Amendment.

The Roberts Court mind-set, so eloquently set forth by Justice Scalia in Hudson,supra, brings us to Herring v.United States, 129 S. Ct. 695 (2009). In Herring,supra, a law enforcement officer requested a warrant check from his county’s warrant clerk and from a neighboring county for Herring, who had driven to the county sheriff’s department to retrieve something from his impounded vehicle. The law enforcement officer was informed that an arrest warrant was active from the neighboring county.  The law enforcement officer pulled Herring over as he left the impound lot, arrested Herring, and searched Herring’s motor vehicle, which lead to the seizure of methamphetamine from Herring’s pocket and a pistol from the motor vehicle.

Shortly after the arrest and search and seizure of the contraband, the law enforcement officer as informed that a mistake had occurred, and the arrest warrant for Herring had been recalled some five months earlier.  Herring was indicted in Federal District Court and the trial court denied Herring’s motion to suppress, holding, in relevant part, that is there were a Fourth Amendment violation, there was “no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes.”

The Court of Appeals for the Eleventh District affirmed the trial court’s denial of Herring’s motion to suppress, holding, in relevant part that the failure to update the warrant records, even though made by a law enforcement official, amounted to a “negligent failure to act, not a deliberate or tactical choice to act.” The appellate court concluded that the benefit of suppressing the evidence “would be marginal or nonexistent” and the evidence was therefore admissible pursuant to the good-faith exception to the exclusionary rule set forth in United States v. Leon, 468 U.S. 897 (1984).

In a 5 to 4 decision, the United States Supreme Court affirmed the appellate court decision.  Justice Roberts, writing for the majority, stated, in relevant part, that “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.”

Significantly, the Roberts’ Court failed to simply invoke the “good faith” exception to the exclusionary rule in affirming the appellate court. Indeed, the Court could have simply affirmed the appellate court by citing Arizona v. Evans, 514 U.S. 1 (1995), in which the Court applied the “good faith” exception to good faith reliance by law enforcement on erroneous information about a warrant from a local court.  Rather than applying Evans, supra, to the facts at issue, the majority in Herring, supra wrote a rather sweeping decision, culminating in the holding that negligent police mistakes, “rather than systemic error or reckless disregard of constitutional requirements” are not subject to the exclusionary rule as ‘any marginal deterrence does not “pay its way”

Whether Herring, supra, will stand as a paradigm shift in exclusionary rule jurisprudence is, obviously, an open question. The effect of Herring, supra, could be limited to its facts, as its holding does refer to “negligence such as that described here” (emphasis added). However, it is troubling that the Court chose to refer to negligence in the first place, as opposed to simply extending the “good faith” exception to the facts at issue. What does appear to be clear from Hudson, supra, and Herring, supra, is the Roberts’ Courts focus on the exclusionary rule being one of “last resort”, necessitating that the deterrent effects of applying the exclusionary rule must outweigh resulting societal costs.

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