Pubdate: Fri, 16 Jan 2009
Source: New York Times (NY)
Page: A28
Copyright: 2009 The New York Times Company


With a lamentable 5-to-4 ruling on Wednesday, the Supreme Court 
carved a new exception to the nearly century-old exclusionary rule, 
which forbids prosecutors from using evidence obtained by the police 
as the result of an improper search. The result was a meaningful 
dilution of Americans' Fourth Amendment protections and one more 
instance of the court's conservative majority upsetting precedent 
without admitting that it is doing so.

The case centered on the 2004 arrest of Bennie Dean Herring by police 
officers in Coffee County, Ala., based on a mistaken belief that he 
was the subject of an outstanding warrant. It turned out that the 
warrant, although still in the computerized database of a neighboring 
town, had been withdrawn five months earlier. By the time the error 
was discovered, officers had stopped Mr. Herring, handcuffed him, 
searched him and his truck and found methamphetamine and an unloaded pistol.

No one disputed that Mr. Herring's arrest lacked probable cause and 
that both the arrest and the search were therefore unconstitutional. 
Nevertheless, the Supreme Court declined to exclude the seized 
evidence, and upheld Mr. Herring's conviction on drug and gun 
charges. The arrest was based on careless police record-keeping 
rather intentional misconduct, the court reasoned.

"To trigger the exclusionary rule," Chief Justice John Roberts wrote 
for the majority, "police conduct must be sufficiently deliberate 
that exclusion can meaningfully deter it, and sufficiently culpable 
that such deterrence is worth the price paid by the justice system." 
The decision instructs judges to use a sliding scale to decide 
whether police misconduct warrants suppressing evidence.

That may seem reasonable, but it ignores both the inadequacy in the 
real world of using a cost-benefit calculus to deter unconstitutional 
law enforcement conduct, and the harm of involving the courts in 
trampling on people's rights by admitting the fruits of an 
unconstitutional search. The decision also overlooks the importance 
of preserving a strong incentive for maintaining accurate, up-to-date 
records in an era of increased law-enforcement reliance on 
coordinated computer databases. These points were noted by Justice 
Ruth Bader Ginsburg in a thoughtful dissenting opinion.

The outcome was not very surprising. In recent years, the court has 
carved out several "good faith" exceptions to the exclusionary rule, 
and justices on the court's right flank have made no secret of their 
ambition to carve out more. But until this week, those exceptions 
were limited to instances when the improper search resulted from 
nonpolice errors, say by judicial officers or a legislature -- not 
solely from police behavior.

The danger of this ruling is that judges will read its broad 
reasoning to prevent the exclusion of evidence in cases of negligent 
police conduct going well beyond sloppy record-keeping. 
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