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Thread: SCOTUS Rules on loosening to exclusionary rule

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    Founder's Club Member Hawkflyer's Avatar
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    http://www.nytimes.com/2009/01/15/wa...ml?_r=1&hp



    January 15, 2009

    Justices Say Evidence Is Valid Despite Police Error
    ByDAVID STOUT

    WASHINGTON — TheSupreme Courton Wednesday upheld the conviction of an Alabama man on drug and weapons charges, emphasizing that the exclusionary rule, which generally bars prosecutors from using evidence obtained by the police through improper searches, is far from absolute.

    In a 5-to-4 opinion, the court upheld the federal conviction of Bennie Dean Herring, who from the court records appears to have been very unlucky as well as felonious in his conduct. In upholding the conviction, the court’s majority came to a conclusion that will most likely please those who complain about criminals going free on “technicalities” and alarm those who fear that the high court is looking for ways to narrow the reach of the exclusionary rule.

    Mr. Herring had gone to the Coffee County, Ala., sheriff’s department on July 7, 2004, to retrieve something from his truck, which had been impounded. “Herring was no stranger to law enforcement,” as Chief JusticeJohn G. Roberts Jr.observed dryly in his opinion for the court.

    And he was no stranger to Mark Anderson, an investigator for the sheriff’s department, who asked a Coffee County clerk if there were any outstanding warrants for Mr. Herring.

    No, Mr. Anderson was told. So he asked the clerk to check with her counterpart in neighboring Dale County, who turned up a warrant against Mr. Herring for failing to appear in court on a felony charge.

    Mr. Anderson and a deputy following Mr. Herring as he left the impound lot pulled him over and arrested him. A search turned up methamphetamine in his pocket and a pistol, which Mr. Herring could not legally possess because of an earlier felony conviction, in his truck.

    Within minutes, however, the Dale County clerk discovered that the warrant against Mr. Herring had been withdrawn five months earlier and had been left in the computer system by mistake. The clerk immediately called Mr. Anderson, but Mr. Herring had already been taken into custody.

    Was Mr. Herring entitled to go free because the officers lacked probable cause and there was no dispute that both the arrest and subsequent search were unconstitutional under the Fourth Amendment? No, the Supreme Court ruled.

    “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply,” Chief Justice Roberts wrote in an opinion joined by JusticesAntonin Scalia,Anthony M. Kennedy,Clarence ThomasandSamuel A. Alito Jr.

    “We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule,” the majority noted. But the justices said the official errors in the Herring case do not compare with the kind of egregious and deliberate police misconduct that gave rise to the exclusionary rule in the first place.

    Deciding when to throw out evidence under the exclusionary rule is a balancing act, the majority said. Is the official misconduct serious enough that the evidence should be disallowed to deter future misconduct, even if criminals sometimes go free?

    Not in Mr. Herring’s case, the majority ruled, upholding findings by a federal district court and the United States Court of Appeals for the 11th Circuit.

    JusticesRuth Bader Ginsburg,John Paul Stevens,David H. SouterandStephen G. Breyerdissented. “In my view, the court’s opinion underestimates the need for a forceful exclusionary rule and the gravity of recordkeeping errors in the law enforcement,” Justice Ginsburg wrote.

    But in the majority opinion, the chief justice wrote that the exclusionary rule “is not an individual right and applies only where its deterrent effect outweighs the substantial cost of letting guilty and possibly dangerous defendants go free.”

    At another point, Chief Justice Roberts wrote that “the very phrase ‘probable cause’ confirms that the Fourth Amendment does not demand all possible precision.”

    The dissenters were unpersuaded, however. “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,” Justice Ginsburg wrote.
    "Research has shown that a 230 grain lead pellet placed just behind the ear at 850 FPS results in a permanent cure for violent criminal behavior."
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    I believe Ginsberg is right in her dissent, but 5 of her peers disagreed, so here we set the stage to find ourselves in the position of the 4th amendment becoming a "technicality" that can be circumvented by good faith or any other expedient that falls short of "reckless disregard" of the constitution. Ordinary disregard will still win the day. I appreciate that this process is imperfect, as people are, but the stakes are simply too high to write off individual liberty with a "**** happens - sorry you're in prison because of a poorly maintained database" justification.

    The majority opinion seems to entitle the police and courts to wield yet more power after demonstrating that they can't adequately maintain the information already at their disposal. Do your job badly enough and get rewarded with more responsibility and less accountability. As in Wall Street, so in Main Street.

    -ljp

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    Sticky situation. I can see both sides' reasonsand would have been quite torn on how to decide on this if I were a Justice.

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    It's easy to point to a guy who is "no stranger to law enforcement" and sympathize with the police. Their's is a difficult and typically thankless job and I am willing to believe that this guy deserves what he got and more.

    However...

    The law of unintended consequences will come into play over this, bet on it.

    -ljp

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    Legba wrote:
    It's easy to point to a guy who is "no stranger to law enforcement" and sympathize with the police. Their's is a difficult and typically thankless job and I am willing to believe that this guy deserves what he got and more.

    However...

    The law of unintended consequences will come into play over this, bet on it.

    -ljp
    Yep.

    Just one more nail (increment) in the coffin of freedom.

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    scary, oh wait. no thats good for me so its ok by me.

    if you can't move yourself faster than 12.5mph you're mine criminal.

    50% of 90% of people are criminals

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    Bad cases make bad case law. This is a bad case.

    I was prepared to be highly indignant over this case. Then when I read the details, I found that I just could not disagree with the majority, at least in this specific case. I don't know if it will apply broadly, I'll let the lawyers (or a couple of law students named Mike and John) educate us on that.

    But in this case, the police were in possession of what they had every reason to believe was a valid arrest warrant for the guy, issued by a different jurisdiction. The search was subsequent to arrest, something long recognized as valid. During that search, they found various "stuff" that should not be illegal to possess, but currently is, and they enforced the law and filed charges.

    This is a far, far different case than detectives lying under oath to get a search warrant, or securing warrants based on informants whom they've allowed to continue in petty burglary so long as such burglaries produce good tips. It's very different from an officer who decides on his own that he has PC to search when he clearly does not.

    Bad case.

    Bad case law.


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    There was no impropriety here. The detective was told by the neighboring county that the suspect had a valid arrest warrant. He acted in good faith. The fact that he was given bad information, with no wrong doing of his own, should uphold the arrest.

    The 'Fruit of the Poisonous Tree' argument is all about not rewarding police misconduct. It is not about officers acting in good faith. This case just upheld the good faith exception.

    no news here, move along.

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    Regular Member TFred's Avatar
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    AZkopper wrote:
    There was no impropriety here. The detective was told by the neighboring county that the suspect had a valid arrest warrant. He acted in good faith. The fact that he was given bad information, with no wrong doing of his own, should uphold the arrest.

    The 'Fruit of the Poisonous Tree' argument is all about not rewarding police misconduct. It is not about officers acting in good faith. This case just upheld the good faith exception.

    no news here, move along.
    The problem with your analysis is that a casual observer (employee) in a police department might just pause, scratch their chin, and say to them self, "well, I know I'm supposed to remove these old files from the system, but I'm really busy today, and, well, gee, one day we just might catch a bad guy if I don't get around to it right away..."

    No provable misconduct, but clearly unethical. And this case did reward police misconduct. Just not misconduct on the part of the officer, but misconduct on the part of the office clerk and filing system.

    This case is dangerous because it allowed a bad means to a good end.

    TFred

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    I've not read the opinion yet, but to me its not aquestion of whether there was a mistake in the filing system, norgood-faith error, etc.

    Simply put, the guy was arrested without a warrant. The warrant no longer existed.

    Bad, bad, bad.

    Presumably, now, if someone is arrested under very similar circumstances, but there is no evidence of a crime found during the search-incident-to-arrest, the innocent citizen cannot now sue for the false arrest? I'll have to read the opinion when I get a moment.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Campaign Veteran deepdiver's Avatar
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    I find myself pretty much in agreement with both KBCraig and AZkopper.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    TFred wrote:
    AZkopper wrote:
    There was no impropriety here. The detective was told by the neighboring county that the suspect had a valid arrest warrant. He acted in good faith. The fact that he was given bad information, with no wrong doing of his own, should uphold the arrest.

    The 'Fruit of the Poisonous Tree' argument is all about not rewarding police misconduct. It is not about officers acting in good faith. This case just upheld the good faith exception.

    no news here, move along.
    The problem with your analysis is that a casual observer (employee) in a police department might just pause, scratch their chin, and say to them self, "well, I know I'm supposed to remove these old files from the system, but I'm really busy today, and, well, gee, one day we just might catch a bad guy if I don't get around to it right away..."

    No provable misconduct, but clearly unethical. And this case did reward police misconduct. Just not misconduct on the part of the officer, but misconduct on the part of the office clerk and filing system.

    This case is dangerous because it allowed a bad means to a good end.

    TFred
    Or, how about the officer who thinks OC is illegal, and clears it with his prosecutor who also thinks it's illegal.

    This decision is just plain shameful. No good will come of it.


    Something about Ben Franklin, and security and liberty.

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    When the officer acts in good faith to execute what he has every reason to believe is a valid arrest warrant, he has not committed an "unreasonable" search as per 4A. That exonerates the officer of any wrongdoing, specifically false arrest or a civil suit.

    However, once the mistake comes to light it is the duty of the prosecutor to decide whether to proceed knowing how the evidence was obtained. In this case the evidence was, in the end, obtained through an improper search. The prosecutor should not have proceeded.

    Failing that, the court should have thrown it out. I believe the court got it backwards. Chief Justice Robert's statement that, "The deterrent effect of suppression must be substantial and outweigh any harm to the justice system" should have been reversed to say, "The harm to the justice system must be substantial and outweigh any deterrent effect of suppression". The error should be on the side of the individual, not the state.

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    centsi wrote:
    When the officer acts in good faith to execute what he has every reason to believe is a valid arrest warrant, he has not committed an "unreasonable" search as per 4A. That exonerates the officer of any wrongdoing, specifically false arrest or a civil suit.

    However, once the mistake comes to light it is the duty of the prosecutor to decide whether to proceed knowing how the evidence was obtained. In this case the evidence was, in the end, obtained through an improper search. The prosecutor should not have proceeded.

    Failing that, the court should have thrown it out. I believe the court got it backwards. Chief Justice Robert's statement that, "The deterrent effect of suppression must be substantial and outweigh any harm to the justice system" should have been reversed to say, "The harm to the justice system must be substantial and outweigh any deterrent effect of suppression". The error should be on the side of the individual, not the state.
    Yep. But, I suppose it's okay because it didn't happen to me. :quirky

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    Hmmmmmm.

    I was a little surprised to find no one had linked the actual opinion when I came back just a few minutes ago to read it.

    Tsk, tsk, tsk.

    Here it is:

    http://www.law.cornell.edu/supct/html/07-513.ZS.html

    More precisely, the link takes you to the syllabus (summary). The link to the opinion is near the top of the page. Don't forget to read the dissents.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    There is some very interesting information located in the opinions (Thanks Citizen). From Justice Ginsberg:

    "Investigator Mark Anderson, who was at the Department that day, knew Herring from prior interactions: Herring had told the district attorney, among others, of his suspicion that Anderson had been involved in the killing of a local teenager, and Anderson had pursued Herring to get him to drop the accusations. Id., at63–64. Informed that Herring was in the impoundment lot, Anderson asked the Coffee County warrant clerk whether there was an outstanding warrant for Herring’s arrest."
    Before knowing that I was interested as to exactly why Herring was so interesting to the detective. So say that he was "familiar" with law enforcement doesn't quite give you the whole picture. Accusing a detective of a serious crime could go to the heart of whether or not the detective was culpable in this error. It's also interesting to note that the investigator did NOT wait for confirmation of the warrant that the Coffee County clerk requested from Dale County. From the Roberts opinion:

    After checking Dale County’s computer database, Morgan replied that there was an active arrest warrant for Herring’s failure to appear on a felony charge. Pope relayed the information to Anderson and asked Morgan to fax over a copy of the warrant as confirmation. Anderson and a deputy followed Herring as he left the impound lot, pulled him over, and arrested him.
    So the investigator apparently did have a dog in the fight and he could have waited for confirmation of the warrant which was in progress and assumingly would have taken no more than a few minutes.

    Am I reading too much into this or could there be more than meets the eye here?

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    centsi wrote:
    SNIP and he could have waited for confirmation of the warrant which was in progress and assumingly would have taken no more than a few minutes.

    Am I reading too much into this or could there be more than meets the eye here?
    Could be. Could be.

    Something interesting, though.

    He asked for a copy of the warrant for confirmation? Why? Does he know or think there are errors in the system?

    "For confirmation" is different than "I'm going to need a copy in a few minutes."
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Citizen wrote:
    centsi wrote:
    SNIP and he could have waited for confirmation of the warrant which was in progress and assumingly would have taken no more than a few minutes.

    Am I reading too much into this or could there be more than meets the eye here?
    Could be. Could be.

    Something interesting, though.

    He asked for a copy of the warrant for confirmation? Why? Does he know or think there are errors in the system?

    "For confirmation" is different than "I'm going to need a copy in a few minutes."
    Exactly. And if it's standard procedure to ask for confirmation (and I don't think it is), then it should also be standard procedure to actually get that confirmation.

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    Sounds like there may be grounds to get the charges dropped.

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    darthmord wrote:
    Sounds like there may be grounds to get the charges dropped.
    Ummm, no. SCOTUS has already said the evidence (thus the charges) are valid. That's what this ruling was about.


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    This is why Jefferson was right about the oligarchy of the Supreme Court.

    Heller is practically the only good decision to come out of the current court. For shame.

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    centsi wrote:
    Citizen wrote:
    centsi wrote:
    SNIP and he could have waited for confirmation of the warrant which was in progress and assumingly would have taken no more than a few minutes.

    Am I reading too much into this or could there be more than meets the eye here?
    Could be. Could be.

    Something interesting, though.

    He asked for a copy of the warrant for confirmation? Why? Does he know or think there are errors in the system?

    "For confirmation" is different than "I'm going to need a copy in a few minutes."
    Exactly. And if it's standard procedure to ask for confirmation (and I don't think it is), then it should also be standard procedure to actually get that confirmation.

    SOP is to confirm the warrant...Computer is only there to say theres a hard copy, hard copy is faxed for confirmation.



    Now, every agency in the US just has to say 'well, our system said he had a warrant!' and poof, you have PC for a detention and (un)lawful arrest.



    Evangelical lessons are provided upon request. Anyone wishing to meet Jesus can just kick in my door.

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    TechnoWeenie wrote:
    centsi wrote
    Exactly. And if it's standard procedure to ask for confirmation (and I don't think it is), then it should also be standard procedure to actually get that confirmation.

    SOP is to confirm the warrant...Computer is only there to say theres a hard copy, hard copy is faxed for confirmation.



    Now, every agency in the US just has to say 'well, our system said he had a warrant!' and poof, you have PC for a detention and (un)lawful arrest.
    Well there you have it. If they would have waited for confirmation, the whole incident would have been avoided. They didn't wait for it, raising issues of impropriety, and it resulted in a false arrest and charges.

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    TechnoWeenie wrote:
    centsi wrote:
    Citizen wrote:
    centsi wrote:
    SNIP and he could have waited for confirmation of the warrant which was in progress and assumingly would have taken no more than a few minutes.

    Am I reading too much into this or could there be more than meets the eye here?
    Could be. Could be.

    Something interesting, though.

    He asked for a copy of the warrant for confirmation? Why? Does he know or think there are errors in the system?

    "For confirmation" is different than "I'm going to need a copy in a few minutes."
    Exactly. And if it's standard procedure to ask for confirmation (and I don't think it is), then it should also be standard procedure to actually get that confirmation.

    SOP is to confirm the warrant...Computer is only there to say theres a hard copy, hard copy is faxed for confirmation.



    Now, every agency in the US just has to say 'well, our system said he had a warrant!' and poof, you have PC for a detention and (un)lawful arrest.


    Not to mention admissible "fruits of the poisonous tree".

    This is how liberty dies. One piece at a time. Bit by bit.

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    Here is an interesting article about this case thatI just came across. By Radley Balko, now at Reason.

    http://www.reason.com/news/show/131311.html

    This part was interesting, too:

    It's not a bad deal. In fact, it would be a good idea to get rid of qualified immunity for all government employees. They idea that getting a government paycheck somehow inoculates you from liability should you harm someone while on the job is antithetical to the principle of equality under the law. If anything, the government should be held to a higher standard.

    I'd add, though, that opening police officers up to lawsuits probably isn't enough. There's an interesting dichotomy on the right when it comes to the police. The same philosophy that distrusts the government when it manifests itself as bureaucrats and regulators (a sentiment I share) seems to put an unhealthy amount of trust in the government employees we call police officers. The sentiment among many on the right is that the police need less supervision, less watch-dogging, and less second-guessing than other government emlpoyees. This is particularly odd given that, compared to your average bureaucrat, police officers are entrusted with an extraordinary amount of power, at least when it comes to the power they wield over the people with whom they come into contact. They are as susceptible to the same trappings of power as any scorned EPA regulator or grudge-bearing city council member, only they're also entrusted with the power to detain, use force, and kill.


    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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