No Suppression For Search Following Arrest on Withdrawn Warrant

In a 5-4 decision today, the Supreme Court further eroded our Fourth Amendment protections by holding that the exclusionary rule does not apply to searches that follow an unlawful arrest pursuant to a warrant that, although withdrawn, still appears to be active in police databases. On its surface the result seems reasonable -- the police do not deliberately violate rights when they make arrests in the good faith belief that their databases are accurate -- but in practice the decision will lead to pernicious results.

The problem that the decision addresses is not uncommon. Warrants are issued for all sorts of reasons (including missed court appearances and failures to pay fines) and are routinely withdrawn when the reason for their issuance is rectified (the defendant appears in court or pays the fine). But since databases are not centralized, a police database of outstanding warrants is frequently populated with warrants that are no longer active. Individuals are routinely arrested in the belief that a warrant is outstanding, only to be released when the court verifies that the warrant has been withdrawn.

The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests. [more ...]

As Justice Ginsberg's dissent makes clear, there is no question that Bennie Herring should never have been subjected to an arrest. Failing to apply the exclusionary rule to the results of the search that followed his arrest undermines the Fourth Amendment.

The exclusionary rule provides redress for Fourth Amendment violations by placing the government in the position it would have been in had there been no unconstitutional arrest and search. The rule thus strongly encourages police compliance with the Fourth Amendment in the future.

While the majority opinion would apply the exclusionary rule to deliberate or systemic error in database management, or to reckless disregard of constitutional requirements, it will as a practical matter be impossible to prove that police clerks who manage databases are deliberately or recklessly failing to purge withdrawn warrants. Nor should that showing be necessary. Justice Ginsburg writes:

The exclusionary rule, the Court suggests, is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless. ... The suggestion runs counter to a foundational premise of tort law—that liability for negligence, i.e., lack of due care, creates an incentive to act with greater care.

In other words, if we want the police to keep databases up to date so that individuals are not unnecessarily arrested, we need to give them an incentive to do so. The exclusionary rule accomplishes that purpose. Its application would recognize "the paramount importance of accurate recordkeeping in law enforcement."

I doubt that police forces already possess sufficient incentives to maintain up-to-date records. The Government argues that police have no desire to send officers out on arrests unnecessarily, because arrests consume resources and place officers in danger. The facts of this case do not fit that description of police motivation. Here the officer wanted to arrest Herring and consulted the Department’s records to legitimate his predisposition.

The dissenters joining Justice Ginsberg were, unsuprisingly, Justices Stevens, Souter, and Breyer.

< In 2006, Newsweek Reported Torture Does Not Work | Newsweek's "Insights" Into Boumediene And Eisentrager >
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    The part that I don't like (5.00 / 2) (#2)
    by eric on Wed Jan 14, 2009 at 11:45:18 AM EST
    is that while the police can make these mistakes without consequence, we do not have that luxury.  It is an issue that runs through all of these cases where the police make and (innocent) mistake about a warrant and nothing gets suppressed.

    If any of us takes action because of a mistaken assumption or a clerical error, we are held responsible for it.

    I guess (5.00 / 1) (#36)
    by JamesTX on Wed Jan 14, 2009 at 10:54:45 PM EST
    this will go on for the rest of our lives? By the time they are finished, we'll be a police state. I wish the electorate had "come to" before Bush got to make his appointments. Well, you live and learn. The problem is, nobody will remember what it was actually like to have rights by the time this court changes.

    Oh come now (1.00 / 1) (#15)
    by jimakaPPJ on Wed Jan 14, 2009 at 02:49:03 PM EST
    Officers in Coffee County arrested petitioner Herring based on a warrant listed in neighboring Dale County's database. A search incident to that arrest yielded drugs and a gun. It was then revealed that the warrant had been recalled months earlier, though this information had never been entered into the database.

    In case some of you haven't noticed I think our drug laws are nuts, but here we get a guy with drugs and a gun.

    Now tell me he was on his way down to the gun club to some a little dope and do some target practice!

    Due process is fine, but when you start attacking something like this you just give ammo to people who really want to shut it down!

    Rule #1 when (5.00 / 2) (#18)
    by eric on Wed Jan 14, 2009 at 04:17:14 PM EST
    analyzing the propriety of a search:  ignore what was found.  I don't care if they found a dead body or a Cuban cigar - the search is either proper or its not.

    I get the point (none / 0) (#27)
    by jimakaPPJ on Wed Jan 14, 2009 at 06:13:22 PM EST
    but the legal profession needs to also get mine.

    If we care (none / 0) (#29)
    by eric on Wed Jan 14, 2009 at 06:17:35 PM EST
    what was found, or capitulate to the public's layperson view that the results of a search should matter, then we all lose.

    I understand your point, this isn't exactly the case you want to take up on appeal.


    oh -- great.... (5.00 / 1) (#22)
    by blogname on Wed Jan 14, 2009 at 05:38:39 PM EST
    you are completely reversing the purpose of the bill of rights.  the rule against warrantless searches and seizures is meant to force the government to come up with a reason first -- not to act first, and justify the action later.

    The government jhad a reason (none / 0) (#30)
    by jimakaPPJ on Wed Jan 14, 2009 at 06:20:05 PM EST
    It was just that one side had not told the other that the reason had went away. In essence the argument is that the evidence should be suppressed because of chance. That isn't justice, that's luck.

    no, they didn't (none / 0) (#33)
    by txpublicdefender on Wed Jan 14, 2009 at 07:51:43 PM EST
    They didn't have a reason to search him.  They had a computer database that they never bothered to update that said they had a reason to search him.  It's the police who got lucky here.  But, it was luck of their own making.  If they hadn't been so neglectful with their warrant database, they never would have discovered the evidence in the first place, so no, I wouldn't say the guy was lucky.

    Yes "they" did. (1.00 / 0) (#37)
    by jimakaPPJ on Thu Jan 15, 2009 at 09:14:30 AM EST
    They??? Who is "they?" They were not the officers who arrested him, nor the community who employed the officers to enforce the law. "They" thought the warrant to be valid and were acting in good faith.

    Do you think the police should be saying, "Are you guys really, really sure the warrant is valid?"

    This is how "law and order" Righties are made when common sense is run over when the Left complains about such.


    nope -- not luck (none / 0) (#34)
    by blogname on Wed Jan 14, 2009 at 09:16:20 PM EST
    Another warrant could "go away" because someone else confessed to the crime; the individual proved his or her innocence, but the disposition was not recorded, etc. Any number of factors can cause a warrant to expire. Under your theory, they could last forever -- long beyond the existence of a proper basis to execute the search or seizure. Police could never purge records and just stop people at will -- which would supply yet another excuse for racial profiling.

    Nope. didn't say that (none / 0) (#38)
    by jimakaPPJ on Thu Jan 15, 2009 at 09:27:13 AM EST
    The luck comes in because the warrant, not issued by the employees of the police in question, wasn't removed. Thus giving  the lawyers an avenue to appeal.

    Your slippery slope argument is thin at best. But if you want to beat up the "police" as a group for not talking to each other and not removing warrants, be my guest.


    a little dope? (none / 0) (#16)
    by squeaky on Wed Jan 14, 2009 at 03:02:58 PM EST
    How bout a big dope? I guess that you would attest to the fact that all responsible gun owners never keep booze in the house, right?

    Dope is right.


    dope is as dope does and you do (none / 0) (#26)
    by jimakaPPJ on Wed Jan 14, 2009 at 06:12:29 PM EST
    as I said (none / 0) (#28)
    by jimakaPPJ on Wed Jan 14, 2009 at 06:16:59 PM EST
    I hear you point and understand your claim... and if you could prove that the police were trying to arrest someone when they knew the warrant was old I would have some sympathy.

    But they didn't.

    In essence you are saying, hey, you were committing a crime and got lucky. Luck is not justice.


    Boo! (none / 0) (#1)
    by ericinatl on Wed Jan 14, 2009 at 11:25:48 AM EST
    What a horrible decision.  Negligence apparently pays if you're a police officer.

    Some of these justices must have had a very traumatic experience during the 1960s and 1970s.  They want to pretend they never happened.

    the most pernicious line (none / 0) (#3)
    by wystler on Wed Jan 14, 2009 at 11:49:03 AM EST
    Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Thomas, and Alito, JJ., joined.

    For all the discussion about having been on the brink with the upcoming Stevens retirement, the real matter is that we're already dealing with a minority court, when considering civil liberties.

    It could be quite a while before Scalia or Kennedy step down, creating an opportunity to rework the court's make-up.

    From my non-lawyer's viewpoint, (none / 0) (#4)
    by ThatOneVoter on Wed Jan 14, 2009 at 12:18:27 PM EST
    this is a particularly outrageous, unjustifiable opinion. How does it compare with other SCOTUS rulings on crime from recent decades?

    well....look at it this way (5.00 / 2) (#10)
    by blogname on Wed Jan 14, 2009 at 01:07:54 PM EST
    In 2001, the Court held that officers had the authority to conduct a full custdial arrest of individuals even if the crime is only punishable by fine. In other words, they can haul you into custody for "processing" even if the ultimate penalty is just a fine. And once they take you into custody, the doctrine already permits a search of the vehicle and your body pursuant to a lawful arrest.  To me, that put the fourth amendment on life support. It is so watered down.

    PS: Souter wrote for the majority!


    It pretty much (none / 0) (#5)
    by eric on Wed Jan 14, 2009 at 12:37:08 PM EST
    falls in line with decisions that let cops make mistakes on their warrants and not punishing them for it.

    Can't wait till... (none / 0) (#6)
    by kdog on Wed Jan 14, 2009 at 12:38:42 PM EST
    the court finds a way to 5-4 away the requirement for search warrants period.

    The problem is (none / 0) (#7)
    by Abdul Abulbul Amir on Wed Jan 14, 2009 at 12:47:27 PM EST

    The problem apparently is that the police are trying to maintain a separate database.  This is always problematic.  In spades.

    Indeed (none / 0) (#17)
    by ericinatl on Wed Jan 14, 2009 at 03:58:13 PM EST
    If only there were a set of tubes that could connect various computers from anywhere around the world to make one super-database that is always updated.  Well, not for now I guess.  Sigh.  /snark off

    terrible, but not unexpected (none / 0) (#8)
    by txpublicdefender on Wed Jan 14, 2009 at 12:55:13 PM EST
    Sadly, this decision does not shock me at all.  This Court, populated with so-called conservatives, has no problem with the government unlawfully committing the ultimate intrusion on personal liberty.  Whatever.

    It's times like this when I am happy to live in a state (Washington) that interprets its state constitution's guarantee of the right to privacy as being more protective than the 4th Amendment.  No pretext stops.  No consent searches of homes without adequate warnings about their right to refuse.  And I'm pretty darn sure this wouldn't fly either.  

    the liberals (none / 0) (#11)
    by blogname on Wed Jan 14, 2009 at 01:12:04 PM EST
    the liberals have not been entirely consistent on criminal procedure issues. they are much better than the conservatives, but these liberals are not "warren era" liberals.

    agreed (5.00 / 1) (#12)
    by txpublicdefender on Wed Jan 14, 2009 at 01:15:53 PM EST
    Oh, I agree with you.  Breyer, in particular, is not reliably "libertarian" on criminal procedure issues.  

    It just gets me that "conservatives" are the ones who are always talking about how incompetent government is.  And "conservatives" are always talking about how government should mind their own business and stay out of people's lives.  And yet, it is "conservatives" who say it is okay to use evidence obtained during a warrantless search that followed a warrantless and unlawful arrest as long as the reason for the arrest was that the government was so incompetent in managing its database that it thought the arrest was lawful.  Blech.


    It is amazing ain't it... (none / 0) (#13)
    by kdog on Wed Jan 14, 2009 at 02:11:07 PM EST
    conservatives can't stand government bueracrats, something I can relate too...yet they love them some government mercenaries, can't relate at all to that.

    A mystery to be sure...


    agreed... (none / 0) (#23)
    by blogname on Wed Jan 14, 2009 at 05:42:51 PM EST
    at this point, i'd welcome one of the conservatives to morph into kozinski - that would be a step up from how they currently stand.

    Good for you (none / 0) (#14)
    by mexboy on Wed Jan 14, 2009 at 02:17:16 PM EST
    I live in a state, California, and a city, L.A. where you get arrested for DWNBW; driving while not being white.

    Now they can do it legally!


    well.... (none / 0) (#9)
    by blogname on Wed Jan 14, 2009 at 01:00:24 PM EST
    In a 5-4 decision today, the Supreme Court further eroded our Fourth Amendment protections....

    It's already on life support....

    somewhat.... (none / 0) (#24)
    by blogname on Wed Jan 14, 2009 at 06:07:37 PM EST
    the assault on procedural due process started with the rehnquist court. they really ripped it to shreds. one of the worst offenders is michigan v long -- in which the mich. supreme court held that a search which discovered marijuana in a car violated the michigan and federal constitution.  the supreme court reversed, on the dubious grounds that it could not tell whether the mich. supreme court based its holding on federal or state law.  state law can provide more protection, and the sct lacks jurisdiction to reverse if the state law provides an independent basis for the ruling. so, the conservatives took the case and held that the search didn't violate the fourth amendment.  

    just because i'm angry, here's a quote from the michigan ruling: We hold, therefore, that the deputies' search of the vehicle was proscribed by the Fourth Amendment to the United States Constitution and art. 1, § 11 of the Michigan Constitution. The evidence obtained pursuant to the unconstitutional search should have been suppressed.

    and here's what the conservatives held on appeal:

    "[W]e find that we have jurisdiction in the absence of a plain statement that the decision below rested on an adequate and independent state ground.
    What a joke.


    by the way.... (none / 0) (#25)
    by blogname on Wed Jan 14, 2009 at 06:10:41 PM EST
    this is also an issue in sentencing.  it is permissible for courts to take into considerations other arrests when sentencing someone for a current case -- even if those prior arrests did not lead to a conviction.  but sometimes the infrmation is conflciting and incorrect across jurisdictions. i believe they are working on creating a uniform database.

    It's not surprising that we don't have a uniform (none / 0) (#31)
    by TLK Nic on Wed Jan 14, 2009 at 06:47:17 PM EST
    database.  State agencies rarely coordinate with one another on the civil or administrative levels, let alone on issues of criminal records.

    Also, the sentencing issue is particulalry troubling, especially given the financial burden of sealing records (at least in CO).  There are also many private sector companies publishing arrest/conviction information, which is nearly impossible to control once the "cat is out of the bag."

    I still take issue with the Leon GF exception.  The main purpose should not be to deter police misconduct (although this is a good thing), but rather to provide a remedy with teeth to those whose rights are violated (in good faith or otherwise).  That constitutional rights hinge on the amount of police misconduct is terrifying.

    I think the problem is that the "conservative" (Rehnquist?) viewpoint seems to be law enforcement centered, vs starting and ending with the most imporant issue: the Fourth Amendment...imho


    I agree with you (none / 0) (#32)
    by Jeralyn on Wed Jan 14, 2009 at 07:13:55 PM EST
    and am very proud to read your comment.

    (Note to everyone, TLK Nic is the TL Kid, all grown up now and a criminal defense lawyer in his own right.)


    correct:: not surprising that... (none / 0) (#35)
    by blogname on Wed Jan 14, 2009 at 09:19:13 PM EST
    Not a surprise that a uniform database does not exist. But that's exactly why the Court should have decided the case the other way.

    I wld predict that similar mistakes will increase- (none / 0) (#39)
    by jawbone on Thu Jan 15, 2009 at 11:34:33 AM EST

    And why not? The SCOTUS just gave police and other law enforcement agencies a get-out-of-Constitutional-requirements-free card.

    And this will not be limited to drug cases, of course. Computer searches, anyone? They won't need no stinking warrants.

    (Writing as lay person)