Legal Commentary

More Criticism of the Supreme Court's Herring Decision

By Jeralyn

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.

[More...

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.

Full post as published by TalkLeft on January 15, 2009 (boomark / email).