Kay Levine

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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.