Few sorts of Supreme Court cases affect ordinary Americans as much as cases about crime and punishment. Rulings about how police enforce the law can create vast repercussions for public safety.
In that light, an Alabama case that the U.S. Supreme Court will consider next fall takes on particular importance. The case is a doozy. A constitutional violation seems to have occurred, but the remedy isn’t clear. And a ruling against the police would mean that a guilty man would go free on a technicality.
Here’s the story: Coffee County Policeman Mark Anderson and prior felon Bennie Herring had a pre-existing conflict; Herring had repeatedly accused the officer himself of criminality. Herring went to the county sheriff’s office one day to pick up personal items from an impounded vehicle. Anderson saw him there, and thought he remembered an outstanding warrant for Herring’s arrest. Sheriff’s office personnel found no warrant in their files, but checked with neighboring Dale County. The Dale County sheriff’s clerk, checking computer files, said yes, a warrant was outstanding. So informed, Anderson and a deputy took off after Herring and pulled him over. Patting him down, they found methamphetamine residue in his shirt pocket. Checking his car, they found a gun – illegal for an ex-con to possess. They arrested him on both counts.
Problem: The Dale County clerk couldn’t find the warrant itself. Further investigation found that the warrant had been recalled entirely, for some unknown reason, by the Dale County court – but the sheriff’s office had forgotten to erase it from the computer system. In other words, Anderson had been told in error that he had a basis to detain Herring and to search his vehicle. In violation of the Fourth Amendment, he had no valid warrant, and thus no “probable cause” for the search.
Nevertheless, Herring did illegally possess the meth and the gun. And Anderson, whatever his personal animus against Herring, acted only after being assured that the warrant existed. A full century of case law provides that evidence attained through unconstitutional police conduct may be “excluded” from trial – but not if the police acted in “good faith” that all proper procedures had been followed. The “good faith exception” to the “exclusionary rule” has been made more explicit in recent years. After all, the evidence of guilt is the same evidence whether or not some court clerk filled in every blank on a preprinted warrant form. And the Fourth Amendment does not provide its own remedy for violations, so the courts have developed rules about exclusion and good faith on an ad hoc basis.
The confusing issue here is that courts have drawn the line based on who made the mistake. If the police were acting on good faith assurances from an officer of the court, the evidence could be used; if the police themselves made the error, the evidence would be excluded. In this Herring case, however, the individual police officer had received assurances – but from another employee of the sheriff’s office, who in turn had the assurances of an employee of a sheriff’s office in a neighboring county. If the exclusionary rule applies when the illegal search was due to police error, what counts as “police?” Is it the individual officer, or is it the whole area police community, even including clerks in another county? If police negligence isn’t punished by excluding the evidence, will that provide a perverse incentive for police everywhere to become lax in record-keeping so as to provide a excuse for all sorts of excessive behavior?
In effect, the Supreme Court will be asked to decide how many pieces of evidence can dance on the head of an exclusionary pin.
The 11th Circuit Court of Appeals upheld Herring’s conviction. The Supreme Court could make a good argument either way – and lawyers everywhere will be looking for ways to exploit whatever precedent the high court sets. That exploitation of precedent – either by police feeling liberated to find more loopholes in Fourth Amendment requirements, or by criminal defendants looking for more reason to challenge otherwise just convictions – is what makes this a problematic case either way.
Perhaps the court should try again what it wrote in the Bush v. Gore election decision, namely that “our consideration is limited to the present circumstances, for the problem [at hand] generally presents many complexities.” If the court somehow could decide the case without setting binding precedent, ordinary citizens could breathe a little easier regardless.
Quin Hillyer is associate editorial page editor of the Examiner. He can be reached at [email protected].
