What Can You Do When the Police Break the Law? Sometimes Nothing at All Says the U.S. Supreme Court

          Earlier this year, the U.S. Supreme Court decided the case of Herring v. United States in which the issue presented was whether evidence found during a search incident to arrest must be excluded in a later prosecution when that evidence was seized by the police in violation of the Fourth Amendment to the U.S. Constitution.

          The pertinent facts in Herring are that in July of 2004 a police officer in Coffee County Alabama learned that an individual named Bennie Dean Herring had driven to the Coffee County Sheriff's Department in order to retrieve an item located in his truck which had been previously impounded by that same department.  Because the officer knew that Herring had a criminal past, he asked the county's warrants clerk to check on whether Herring had any outstanding warrants for his arrest in Coffee County.  When the clerk found none, the officer asked her to check on whether Herring had any outstanding warrants in neighboring Dale County.  Upon being told that Herring did indeed have an open warrant in that county, the officer arrested and searched Herring.  When he did so, the officer found drugs and a gun on Herring's person.  However, within ten to fifteen minutes of Herring's arrest, the officer was told that the warrant he had arrested Herring for had actually been recalled five months earlier.  In spite of that, Herring was indicted in a United States District Court in Alabama for illegally possessing the gun and drugs.

          Herring's lawyer filed a motion to suppress the gun and drugs on the ground that Herring's arrest was illegal because the warrant he had been arrested for had been recalled five months prior to his arrest.  Although the prosecutor agreed that Herring's arrest violated the Fourth Amendment, he still maintained that he should be allowed to present the seized evidence to the jury at Herring's trial because the arresting officer reasonably believed that there was an outstanding arrest warrant in effect when he arrested Herring.

          The case ultimately made its way to the U.S. Supreme Court where the Court was asked to decide whether the prosecution could present the gun and drugs as evidence at Herring's trial.  By a vote of 5 to 4, the United States Supreme Court ruled that the gun and drugs could be presented as evidence at Herring's trial because the error regarding the recalled warrant was "the result of isolated negligence attenuated from the arrest."  In other words, because the officer who arrested Herring made an honest mistake regarding the recalled warrant, the Fourth Amendment does not require that the gun and drugs be excluded at Herring's trial.

         In dissent, Justice Ginsburg, joined by three other justices, stated that "the most serious impact of the [majority opinion] will be on innocent persons wrongfully arrested based on erroneous information carelessly maintained in a computer database."  She continued on by saying that "[n]egligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means."

          Finally, Justice Ginsburg perceptively observed that "by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority [opinion] leaves Herring, and others like him, with no remedy for violations of their constitutional rights."  In other words, when the police violate the law but the violation is not deliberate or reckless, there is nothing that a person can do who suffers as a result of that violation.