In the five years since the Supreme Court decided Herring v. United States, law professors and other commentators have written dozens of articles about it, to the point at which it seemed as though there was not much more to say about the decision. However, a recent article posted on SSRN takes a fresh perspective on Herring by examining how the case has been handled by lower courts–and, by extension, how police departments may be reacting to Herring in order to “launder” evidence that was obtained in violation of the Fourth or Fifth Amendment.
In Herring, the Supreme Court broadened the application of the “good faith exception” of the exclusionary rule. The arresting officer in Herring relied upon a negligent mistake by a police department employee from another department when he arrested the defendant–but there was no way for the arresting officer to know that there had been a mistake. Thus, the defendant was illegally arrested, but the arresting officer had know way of knowing at the time that the arrest was illegal. However, unlike in previous good faith cases (like United States v. Leon), the mistake at issue was made by a law enforcement official–thus, the Court had to address the question of whether a negligent mistake made by a law enforcement officer who was not the arresting officer would still trigger the exclusionary rule. The Court held that the exclusionary rule should not apply–essentially, it was not worth the cost of applying the exclusionary rule in a case where the arresting officer acted in good faith, even if originally it was a police error that lead to the Fourth Amendment violation. The Court noted in dicta that if the original error was “deliberate misconduct, recklessness, or gross negligence,” or if there were “systemic negligence” on the part of the mistaken officer, then the good faith exception should not apply.
Herring decision left a lot of questions unanswered: how much attenuation is necessary between the original police error and the illegal arrest before the good faith doctrine can apply? What exactly constitutes “gross negligence” or “systemic negligence”? And more broadly: does this case signal the beginning of the end of the exclusionary rule, since the Court is now refusing to apply the rule even in the case of a police mistake that leads to a Fourth Amendment violation?
Probably these questions were intentionally left unanswered: the Supreme Court wanted to wait and see how the decision played out in lower courts before deciding what its next move should be with regard to the application of the exclusionary rule. Elsewhere I have been very critical of this “wait-and-see” strategy by the Supreme Court, arguing that the Court takes so few cases in Fourth Amendment law that it needs to be bolder when it addresses unsettled areas of law–otherwise (as in Herring) it ends up creating more questions than it resolves. But when the Court chooses to move incrementally, it is undoubtedly useful to actually take a look a few years later and see exactly what the lower courts are doing. This is exactly what this latest law review article does.
The article, Evidence Laundering: How Herring Made Ignorance the Best Detergent, is co-written by Professor Kay Levine of Emory, Professor Jenia Turner of Southern Methodist, and Professor Ronald Wright of Wake Forest. The article conducts an analysis of the twenty-one lower court decisions that have applied Herring in cases where one police officer acting in good faith relied on tainted information and thus violated a defendant’s Fourth Amendment rights. In those twenty-one cases, seventeen courts allowed the evidence to be admitted, while four determined that there was “deliberate misconduct, recklessness or gross negligence” which required exclusion of the evidence.
The authors worry that police officers may launder evidence intentionally, reviving the “silver platter” doctrine from the pre-Mapp era in which state police would violate the law to obtain evidence and then hand over the tainted evidence to federal authorities, who could then legally use it in federal court. Although most of the post-Herring cases involved fact patterns very similar to Herring (i.e., a mistake in an arrest warrant database), the authors still found cause for concern:
we identify courts that have permitted boldly problematic hand-offs of the sort contemplated by the hypothetical. But even in the less obviously problematic cases, acquiescent reasoning or insufficient fact-finding by courts suggests a tolerance for evidence laundering that not only is troubling on its face but might also inspire evasive tactics by law enforcement in the future.
The article goes on to make two important points. First, the Herring decision is based on an individualistic, “atomistic” view of how police departments operate, which leads it to focus on the (innocent) actions of the arresting officer rather than the (negligent) actions of some other member of law enforcement. As the article points out, this is increasingly an inaccurate way of viewing how police departments operate, since in the age of computer databases and cross-jurisdictional crimes, police officers often work closely (or at least rely upon) officers in other divisions or other departments in the course of investigating criminal activities. Second, the article compares our current exclusionary rule to the rules followed by other countries, and finds–somewhat surprisingly–that the current state of the exclusionary rule is now very similar to the rule for other countries. Other civil and criminal law countries do apply an exclusionary rule, although less often than in the United States, and in doing so they apply a broad balancing test rather than applying a stricter rule-based analysis. That is, these countries “weigh the effect of factors such as the seriousness of the misconduct, the gravity of the offense, and the importance of the rights violated.” This is increasingly how the United States courts are applying the exclusionary rule post-Herring. The article points out some good and some bad effects of this shift from a traditionally American “rules-based” standard to an international “balancing test” analysis:
One of the chief weaknesses of the balancing approach is that its flexibility carries the risk of inconsistent and unpredictable decisions. To the extent it relies on a subjective evaluation of officers’ state of mind, a balancing approach also raises practical difficulties for defendants in proving this element. And finally, because balancing expands in some respects the range of cases in which unlawfully obtained evidence is admitted, this likely reduces the disciplinary effect of exclusion.
Yet balancing also offers some potential advantages. In certain circumstances, its openness allows judges to exclude evidence to ensure systemic integrity where our deterrence-oriented approach would call for admission. The flexibility of the balancing approach also permits courts to consider alternative remedies, such as sentence reduction or jury cautions, in some cases where our zero-sum approach would lead to admissibility because of concerns about the costs of exclusion. While empirical evidence on the practical effects of the balancing approach is very limited, existing data suggest that it need not severely undermine the exclusionary rule.
This is probably a very accurate prediction of the future of the exclusionary rule–the doctrine will ultimately complete its evolution from a rigid rule-based analysis into a flexible balancing test that will result in more illegally obtained evidence being admitted. Whether this is a positive development depends on how much a person accepted the original premise of the exclusionary rule as an effective deterrent that was worth the cost of setting some guilty people free. In his seminal article Fourth Amendment First Principles, Professor Akhil Amar predicted that we would eventually get to the point where courts reject the exclusionary rule in favor of a more balanced reasonableness analysis. Professor Amar believed this would be a positive development. As he pointed out:
The exclusionary rule renders the Fourth Amendment contemptible in the eyes of judges and citizens. Judges do not like excluding bloody knives, so they distort doctrine, claiming the Fourth Amendment was not really violated. In the popular mind, the Amendment has lost its luster and become associated with grinning criminals getting off on crummy technicalities. When rapists are freed, the people are less secure in their houses and persons–and they lose respect for the Fourth Amendment. If exclusion is the remedy, all too often ordinary people will want to say that the right was not really violated. At first they will say it with a wink; later, with a frown; and one day, they will come to believe it. Here, too, unjustified expansion predictably leads to unjustified contraction elsewhere.
Professor Amar (and some others) have argued for adopting a number of alternate remedies for addressing Fourth Amendment violations, such as civil liability of police departments (which would require weakening or abolishing some of the qualified immunity doctrine), punitive damages, class actions, and injunctive relief. Of course, courts will not start developing these alternate remedies in any meaningful way until the Supreme Court completes this shift once and for all and abolishes the exclusionary rule as we know it in favor of the broader balancing test that some post-Herring lower courts already seem to be applying. Surely it is now time for the Court to take this final step and allow a more robust development of other Fourth Amendment remedies.
If you wish for to obtain a good deal from this post
then you have to apply such strategies to your won website.
Link exchange is nothing else except it is only placing the other person’s web site link
on your page at appropriate place and other person will also do similar for you.
I couldn’t resist commenting. Perfectly written!
Valuable info. Fortunate me I found your web site unintentionally, and I am
surprised why this coincidence did not happened earlier!
I bookmarked it.
Hmm is anyone else encountering problems with the pictures
on this blog loading? I’m trying to figure out if its a problem on my end or if it’s the blog.
Any feed-back would be greatly appreciated.
I am regular reader, how are you everybody?
This paragraph posted at this web page is really nice.
Amazing! This blog looks just like my old one!
It’s on a completely different topic but it has pretty
much the same layout and design. Excellent choice of colors!
Hey there I am so grateful I found your blog, I really found you by mistake, while I was researching on Google for something else,
Anyways I am here now and would just like to say thanks for a marvelous post and
a all round interesting blog (I also love the theme/design), I
don’t have time to read it all at the minute but I have saved
it and also added your RSS feeds, so when I have
time I will be back to read a lot more, Please do keep up the awesome jo.
If you live in a historic structure or live located in an area
susceptible to windows that are deteriorating, you might
need to Repair Window; Window-Glass-Repair-Near65431.Pointblog.Net, them.
It could be a matter of rotten wood or an accident.
Sex dolls are an increasingly popular way to satisfy your cravings for sex.
Although they’re made of soft silicone, they’re very solid inside and are
safe to handle. Modern sex toys don’t have any flavor and are easy to
clean.
Also visit my site … realistic sexdolls
Gambling online is governed by various rules and regulations.
For example in the US you are not allowed to operate a gambling website located in your home country.
However, it is possible to be set up elsewhere.
my homepage: slots (jamvibez.net)
The Internet has created a wealth of opportunities for those who enjoy poker.
Poker online has seen a dramatic rise in popularity
over the last few years. If you love the game, but don’t have time to go
to a traditional casino, try online poker.
Here is my web site … slots (barresiones.com)
Casinos online offer a variety of benefits.
The process of signing up doesn’t require you
to invest a lot of money. Many online casinos
provide free games, and players can test them out
to determine which games they enjoy the most.
Check out my page: Poker (elegantcasa.net)
Online Slots (Ayres30.Com) are a favorite game
played by millions of players. This exciting and fun kind of gambling is a perfect way to pass the time or earn money.
There are numerous games available to choose from, and
there are even free games to try.
There are numerous advantages of playing poker online.
One of them is that there are no waiting lists, no second-hand smoke, and you can play whenever
you’d like. You can also play a wide range of games.
Also visit my web site: Bets (https://Climakind.Com)
A lot of men buy Sex Dolls to play with their partners.
The purpose of these dolls is to encourage close relationships.
Here is my page cheapest Sexdoll
The growing popularity of dolls that sex is a fantastic method to satisfy your sexual desires.
Despite being made of soft silicone, they’re sturdy inside and safe to
handle. The latest sex toys taste nauseous and easy to wash.
Look into my website :: realistic Sexdolls
If you have poor credit, it is possible to be approved loans for bad Credit an loan.
However, you’ll need to spend a little time researching before you can get an loan. There are
many possibilities. A personal loan is the most sought-after choice.
Asian Japanese sex dolls make the sex experience more realistic and enjoyable for both men and women. They’re a low-cost and easy alternative to real-life partners.
Feel free to surf to my web-site :: sexy Doll
The rising popularity of dolls that sex is a fantastic method to satisfy your
sexual fantasies. They are made of soft silicone, but extremely durable and safe
to play with. The latest sex toys taste nauseous
and easy to clean.
My web site; Sexy Doll
Gambling online has gained popularity in the past decade.
In 1996, there were only fifteen websites. In 1997, there were over 200.
In 1998 a Frost & Sullivan report stated that online
gambling brought in $830 million in revenue.
Feel free to visit my web site :: slots (hmgproperties.com)
There are many reasons why you should consider sports betting.
From the possibility of earning a profit to the excitement and the opportunity to root for your team of choice as well as the overall experience.
Also visit my blog post: blackjack; frankaazami.com,
The online gambling industry has become popular in the past decade.
In 1996, there were just fifteen websites. In 1997 the number was more
than 200 websites.
Also visit my web blog; Sports (Anguillaforum.Com)
Slot machines online are a preferred pastime for millions of players.
This exciting and fun kind of Gambling, http://rev-Tun-infectiologie.org, is
a perfect way to pass the time or to make extra cash.
Online slots are a popular game played by millions of players.
This exciting and fun form of gambling is a great way to pass
the time or to make extra money.
Feel free to visit my web-site :: live – upforpups.org,
If you’re playing togel hongkong, it is essential to be aware of the specifics of the betul latar belakang hkhari ini.
If you’re looking to be successful, you must have this information.
Here is my blog :: pengeluaran hk
Asian sexual dolls are a popular erotic toy for women and men. They
are constructed with high-end TPE materials and come with a variety of characteristics that be a great
option to satisfy every sexual craving.
My page … sexy-doll
European Sex Dolls are a extremely popular method of satisfying your sexual desires.
These top-quality reproductions are available in various sizes, colors Sexdolls For Men the eyes, hair styles, and eyes.
Online poker has many benefits. For instance, there are
no waiting lists and no second-hand smoke and you can play at any time you’d like.
Additionally, you can play a wide variety of games.
My webpage: Sports (castpodder.net)
The first agency for European Realsex Dolls
for sex is located in Barcelona, Spain. The agency boasts four working fake girls, and says that clients are unable
to tell the difference between a real woman and the
female doll.
Online casinos have many advantages. It doesn’t require lots of money to join. Most online casinos offer
free games, and players can play them to see which games they enjoy the
most.
My page poker (http://mysideincome.com)
Payday direct lender loans for bad Credit for
people who have bad credit are an excellent option for those who need cash quickly.
Lenders are open to applicants of all credit types and the process
of applying is simple.
New Yorkers are now able to place online bets on sports since January
8 2022. Four major operators have been granted licenses to mobile betting.
They can offer their services in a variety ways. These operators
are Bally’s and DraftKings NY.
Here is my blog: casino (Smwomenshealth.com)
The internet betting market offers both bettors as well as bookmakers many advantages.
These betting websites allow gamblers to place
bets on favorite sports and also make them money.
These sites provide a variety of ways to deposit money.
my website; Dealers (http://Hammerhorrorposters.com)
While Togel is a game of luck However, a strategy that is well thought-out
can help you make better predictions and increase your
chances of winning the prize. Look over the Hongkong lottery results to aid you in your planning.
Here is my web-site – Toto Hk
The rising popularity of sex dolls is a great way to fulfill your Sexual doll fantasies.
They are made of soft silicone and are solid and safe to touch.
Modern sex toys have no flavor and are easy to
clean.
There are many reasons to consider betting on sports, ranging from the possibility of making money to the fact
that it brings excitement and a reason to look forward
to the overall viewing experience.
My web blog :: casino; newdelhi-indiahotels.Com,
The bad credit loan is designed to meet the needs of each borrower.
Credit score is not a barrier to obtaining the Short Term Loan Bad Credit Uk.
The lenders will provide the loans based on affordability tests to ensure that the borrower will be able to manage repayments.
While silicone has long been the most coveted of sex dolls, TPE
has recently emerged as a dark horse that is offering a formidable challenge to silicone-based sexual
toy.
Here is my web-site Sexy Doll (http://Www.Slbimsj.Com)
A lot of men buy Sex Dolls to play with their partner. The goal of these
dolls is to foster intimacy. The reason for these dolls is
to allow the owner to experiment with their sexuality without having to worry about the consequences of doing so.
Take a look at my website; Realsexdoll
Asian sexual dolls are a popular erotic toy for women and men.
These dolls are able to satisfy any sexual desire and
are made of high-quality TPE materials. These sex toys are
highly articulated and can be used in a variety of ways.
Also visit my blog post sexdoll sale
A lot of men buy Sex Dolls to play with their partner.
The goal of these dolls is to foster intimacy. These toys allow their owners to explore their feminine side without
the burden of the negative consequences.
My homepage :: Sexdoll Sale
Gambling online is governed by numerous rules and regulations.
In the US for instance you aren’t able to base a gambling website
in the country where you live however you can locate it elsewhere.
my homepage: casino (belmusic.Org)
While silicone has been the undisputed king of sex dolls,
TPE has recently been recognized as a dark horse
providing a tough competition for silicone-based sexual toys.
Also visit my web blog; sexdoll Cheap
I’m really loving the theme/design of your blog. Do you
ever run into any web browser compatibility issues?
A couple of my blog readers have complained about my blog not operating correctly in Explorer but looks great in Opera.
Do you have any recommendations to help fix this issue?