Update: Supreme Court Upholds Search Arising From Error In Police Database
In a 5-4 opinion (pdf), the US Supreme Court affirmed a lower court opinion and upheld evidence found in a search of a man wrongfully arrested based on an error in a police database. Chief Justice Roberts wrote the majority opinion and Justices Ginsburg and Breyer filed dissents.
Here’s a bit of background on the case, Herring v. US, in which the police searched and then arrested Bennie Dean Herring based on incorrect information in a government database. Though Herring told the officers that he did not have a warrant out for his arrest, and no officer had seen nor could produce a copy of the arrest warrant, the officers illegally arrested and searched him. He was later indicted.
In District Court, Herring argued that the evidence gathered incident to his unlawful arrest should be suppressed; he said the exclusionary rule prevented the use of such evidence. (The exclusionary rule provides that evidence must be suppressed if it is gathered in violation of an individual’s constitutional rights. There are exceptions and the issue is more complex than this, but this is the general rule.)
When the District Court ruled against him, Herring appealed to the Eleventh Circuit Court of Appeals, which affirmed (pdf) the district court’s ruling. Herring then petitioned (pdf) the US Supreme Court, which heard oral arguments (pdf) in October.
In his opinion for the majority, the Chief Justice focused on the societal cost of excluding evidence, the “price paid by the justice system,” which “is, of course, letting guilty and possibly dangerous defendants go free.” He wrote:
In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system [...] 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.”
In a dissent, Justice Ginsburg argued, “by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority leaves Herring, and others like him, with no remedy for violations of their constitutional rights.” Justice Ginsburg focused on the numerous errors in police databases and cited to the amicus brief (pdf) filed by the Electronic Privacy Information Center, legal and technical experts, and civil liberty organizations. (Disclosure: I helped author the EPIC brief and am quite happy that she cited it.) She wrote:
Electronic databases form the nervous system of contemporary criminal justice operations. In recent years, their breadth and influence have dramatically expanded. Police today can access databases that include not only the updated National Crime Information Center (NCIC), but also terrorist watchlists, the Federal Government’s employee eligibility system, and various commercial databases. Brief for Electronic Privacy Information Center (EPIC) et al. as Amicus Curiae 6. Moreover, States are actively expanding information sharing between jurisdictions. Id., at 8–13. As a result, law enforcement has an increasing supply of information within its easy electronic reach. See Brief for Petitioner 36–37.
The risk of error stemming from these databases is not slim. Herring’s amici warn that law enforcement databases are insufficiently monitored and often out of date. Brief for Amicus EPIC 13–28. Government reports describe, for example, flaws in NCIC databases, terrorist watchlist databases, and databases associated with the Federal Government’s employment eligibility verification system.
In our brief, we urged the Court to “ensure an accuracy obligation on law enforcement agents who rely on criminal justice information systems.” In fact, ”to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system.”
For these reasons, I strongly agree with Justice Ginsburg’s statements that “the [majority] opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in law enforcement” and “Negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means.”
There is a lot of coverage of the case on various news sites and blogs. One of the more interesting blog posts is by Tom Goldstein, one of Herring’s attorneys. On SCOTUSblog, he argues that the Supreme Court’s opinion is broader than the initial question of whether “a negligent error by the police clerk” gives rise to exclusionary rule.
But in fact the majority’s reasoning is broader – much, much broader. Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. [...]
The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.
Goldstein’s post is thought-provoking, and I urge you to read it.
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