An Important Upcoming Supreme Court Case Raises Questions About Both the Fourth Amendment and the Weight of Precedent
	By VIKRAM DAVID AMAR
	Friday, Aug. 29, 2008

The Facts of Herring

The facts of Herring are relatively straightforward. When Bennie Dean Herring was present at the Coffee County, Alabama, Sheriff’s Department collecting some belongings, a County investigator asked his Department’s warrant clerk if there were any outstanding arrest warrants on Mr. Herring. When the clerk said there were not, the investigator asked her to check with a neighboring county to see if it had any outstanding warrants on Herring. The warrant clerk from neighboring Dale County replied that there was indeed one outstanding warrant for Mr. Herring, for failure to appear for a felony charge.

Based on this information, the Coffee County investigator arrested Mr. Herring in his vehicle, and conducted a search of Herring and his truck pursuant to the arrest, turning up methamphetamine and a pistol. Shortly thereafter (fewer than ten minutes later), the warrant clerk from the Dale County Sheriff’s Department called back to say she had been in error; in fact, there was no active arrest warrant for Herring. Apparently, the Dale County court had recalled the warrant, but the recall had not been properly recorded in the Dale County Sheriff’s office.

As a result of the evidence obtained during the search of Herring and his truck, federal authorities prosecuted Herring on federal drug charges, and a federal jury convicted him. The U.S. Court of Appeals for the Eleventh Circuit described the issue on appeal in the following terms:

The parties agree on the central facts. The Coffee County officers made the arrest and carried out the searches incident to it based on their good faith, reasonable belief that there was an outstanding warrant for Herring in Dale County. They found the drugs and the firearm before learning that the warrant had been recalled. The erroneous information about the warrant resulted from the negligence of someone in the Dale County Sheriff’s Department, and no one in Coffee County contributed to the mistake. The only dispute is whether, under these facts, the exclusionary rule requires suppression of the firearm and drugs.

The Meaning of Exclusionary Rule Precedent and the Eleventh Circuit’s Affirmance of Herring’s Conviction

Before the Eleventh Circuit, the federal government leaned heavily on Arizona v. Evans, a 1995 Supreme Court ruling in which the Justices held that the exclusionary rule does not apply to circumstances in which officers rely in good faith on a court employee’s representation that a valid arrest warrant exists, when in fact the warrant has already been quashed. However, the Eleventh Circuit rejected this argument – quipping that the government’s effort to catch Herring red-handed itself relies on a “red herring” reading of Evans. The Eleventh Circuit noted that the Evans Court itself explicitly declined to opine whether the ruling there would extend beyond mistakes made by judicial employees, to cover mistakes by law enforcement department employees. Thus, the Eleventh Circuit concluded that the question raised by Herring was a new one, not covered by the ruling in Evans.

The Eleventh Circuit nonetheless turned to another Supreme Court precedent – United States v. Leon – the 1984 case on which Evans itself had been built. The Eleventh Circuit judges decided under the Leon framework that in Mr. Herring’s case the societal benefits of applying the exclusionary rule, defined largely in terms of deterring police misconduct, did not outweigh the costs that result when probative evidence of a crime is excluded.

In particular, the Eleventh Circuit noted that the Dale County Sheriff Department’s mistake had been one of negligence, rather than purposeful intent; that the Dale County employees might not be deterred by a sanction imposed in Coffee, rather than Dale, County; and that there were potentially other sanctions – such as employer discipline and possible civil liability -- that would operate to induce Dale County employees to be more careful.

The Supreme Court’s Upcoming Review of the Eleventh Circuit Ruling

It would seem that the Eleventh Circuit’s application of Supreme Court precedent is, at a minimum, a plausible implementation of exclusionary rule doctrine. The Court has been stressing of late (as in the case of Michigan v. Hudson a few years ago) that the exclusionary rule is harsh medicine of last resort to be used only where its benefits outweigh its costs, and that judges ought to be mindful that there are other devices, such as civil liability, available to create a disincentive to lawlessness on the part of law enforcement officials.

To be sure, the Eleventh Circuit might have excessively downplayed the possible deterrent effect of applying the exclusionary rule to Mr. Herring’s circumstances. For instance, while the Eleventh Circuit is correct that negligent acts are less likely to be deterred than are intentional police misdeeds (which were absent here), even negligence might be reduced by imposing a sanction (like the exclusionary rule) that has real bite.

But any quibbles with the Eleventh Circuit’s specific statements would not, by themselves, easily explain the high Court’s grant of review.

Why, then, did the Court take the case? Perhaps because there appears to be some lower court confusion over the meaning of Evans and other exclusionary rule precedents. Or perhaps because the Court is interested in moving beyond those precedents, to forge new doctrine in this area. Since the Court (unlike lower courts) has the power to revisit and modify or overrule its own precedent, the question here is whether the arguments in favor of stare decisis – the presumption in favor of past rulings – have much force in this area.

My sometime FindLaw co-author Akhil Amar has suggested in his writings, including in a forthcoming Harvard Law Review essay, that the case for stare decisis in the exclusionary rule setting isn’t particularly strong. I think he is probably right.

In some contexts, we might stick with doctrines and rulings that don’t square with our deepest understanding of what the Constitution itself means and requires on the ground people have relied upon past rulings, and we don’t want people to be worse off for that reasonable reliance. But what reliance exists in the exclusionary rule setting? It seems incredibly unlikely that any criminal decides to break the law in part because he factors into his risk/reward calculus the possibility that evidence of his crime will be suppressed under the exclusionary rule. As Akhil has pointed out, to state this supposed reliance interest here is to realize how unpersuasive it is.

On the Court, a number of Justices – such as Justice Scalia -- have made clear that they think the exclusionary rule does not follow from the best reading of the Constitution itself. If so, why don’t they simply call for the abolition of the rule entirely, since application of the rule of stare decisis wouldn’t seem particularly apt here?

It is quite possible that Herring will give us some insight on this larger and very important question.

Vikram David Amar is a professor of law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.