More Criticism of the Supreme Court's Herring Decision

Law Prof Glenn Reynolds, aka Instapundit, has an excellent op-ed today in the New York Post criticizing the Supreme Court's decision yesterday in Herring (background here), restricting the exclusionary rule.

How many times have we all heard "ignorance of the law is not a defense?" With this opinion, the Supreme Court is saying this rule applies only to citizens, not to police.

You can see their reasoning. Herring's a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

Except that the rest of us enjoy no such immunity.
....Likewise, police are given a pass, under the doctrine of "good faith immunity," from having to understand the intricacies of suspects' constitutional rights: A right must be clearly established before an officer is liable for violating it, apparently on the theory that constitutional law is just too confusing for police.


But ordinary citizens are expected to comply with the tens of thousands of pages of federal criminal laws and regulations (and more at the state level) and are told that "ignorance of the law is no excuse" - and this is true even in cases where the prosecution's theory of criminality is a novel one.

Cynics might be forgiven for thinking that, instead of a government of, by and for the people, we've got a two-tiered system in which "public servants" instead enjoy the privileges of "public masters."

The Supreme Court might want to think again before doing more to encourage such cynicism.

As Last Night in Little Rock (John Wesley Hall) writes on his blog, Fourth Amendment.com, "Yes Virginia, there is a Barney Fife exception to the exclusionary rule." He has much more on this here.

Also see ScotusBlog, The Surpassing Significance of Herring.

Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Slip Op. at 9. “[W]e 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,” the exclusionary rule does not apply. Id. at 12.

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.

ScotusBlog says event the dissenting judges don't get it:

They address the case as if it merely involves police recordkeeping, when the Court’s ruling is in fact far broader. According to today’s decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer’s objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.

It's time to stop giving cops the benefit of the doubt. If anyone should get that benefit, it's the citizenry.

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  • Display: Sort:
    Punishing (5.00 / 1) (#1)
    by DaveOinSF on Thu Jan 15, 2009 at 12:22:02 PM EST
    Except that letting someone go when the police make a mistake is not punishing the police...it's punishing the citizens.

    You disagree (none / 0) (#2)
    by eric on Thu Jan 15, 2009 at 12:53:23 PM EST
    with the exclusionary rule in all cases?  

    I make no such assertion (none / 0) (#8)
    by DaveOinSF on Fri Jan 16, 2009 at 11:27:42 AM EST
    How to handle evidence when procedure was not followed should certainly be addressed on a case-by-case basis, where all the facts are disclosed and analyzed.  That is what the court held.  I approve of that judgment.

    I simply disagreed with the assertion that discarding the evidence somehow punishes an individual police officer.  Certainly, that officer should be punished for not following procedure, but the discarding of the evidence is not part of that process.


    perhaps, (none / 0) (#3)
    by cpinva on Thu Jan 15, 2009 at 02:15:42 PM EST
    Except that letting someone go when the police make a mistake is not punishing the police...it's punishing the citizens.

    the opprobrium they receive, as a consequence, might instill in them a desire to do a better job, lest they be out of one.

    and so it has become. "animal farm" lives this day, thanks to our very own USSC; all animals are equal, some are just more equal than others.

    sadly, the majority 5 wouldn't pick up on this referrance, were it put to them.

    I'm afraid the opprobrium they receive (none / 0) (#5)
    by weltec2 on Thu Jan 15, 2009 at 06:47:50 PM EST
    they receive as a group which for some instills a sense of internal solidarity.

    instapundit (none / 0) (#4)
    by jharp on Thu Jan 15, 2009 at 03:13:34 PM EST
    And I always thought Instapundit was a jackass. I guess I'll have to study him a little more.

    Same here (none / 0) (#6)
    by Erehwon on Thu Jan 15, 2009 at 07:32:55 PM EST
    I never thought I would see the day when I would agree with Instapundit on anything. The Times They Are A-Changin' ...

    benefit of the doubt? (none / 0) (#7)
    by diogenes on Thu Jan 15, 2009 at 10:31:18 PM EST
    If you want to stand on giving the benefit of the doubt to a guy with meth and a gun in his car, then be my guest.
    Only those who are breaking the law will be "victimized" by this Supreme Court ruling.  All of you people who think that the cops are conspiring against you should remember that a cop can pretend that you are speeding and then pretend that he sees a gun in your car and then can plant all kinds of evidence and lie through his teeth if the cop really cares enough about you to personally conspire against you.  

    Dicta (none / 0) (#9)
    by rea on Fri Jan 16, 2009 at 05:35:23 PM EST
    They address the case as if it merely involves police recordkeeping, when the Court's ruling is in fact far broader.

    Oh, no, this is an extremely narrow ruling, as I shall assure every judge in front of whom I have to argue this.  :)

    Drug and Gun Laws UnConstitutional (none / 0) (#10)
    by Douglas Willinger on Sat Jan 17, 2009 at 09:12:26 PM EST
    So what if he had some speed pills and an unloaded gun- the politicians who voted for such laws ought to go to prison for violating the 1st, 2nd and 9th amendments to the US Constitution.