Evidence Is Valid, Despite Police Error
Rights Were Not Violated, Justices Rule

By Robert Barnes
Washington Post Staff Writer
Thursday, January 15, 2009

The Supreme Court ruled yesterday that evidence seized in an improper arrest does not always have to be thrown out by the courts, provided the error was the "result of isolated negligence" on the part of the police.

The court's conservative members held sway in a 5 to 4 decision that upheld the drug and gun-possession conviction of an Alabama man who had been arrested only because a computer mistakenly indicated that a warrant had been issued for his arrest.

Chief Justice John G. Roberts Jr. said the incident was more of a "bookkeeping" error than an attempt by police to skirt the Fourth Amendment prohibition on unreasonable searches and seizures.

"We conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements," the evidence need not be barred from use at trial, Roberts wrote. He was joined by Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr.

The decision prompted an immediate debate about whether it was a logical extension of previous rulings or a dramatic change in how the court views the Fourth Amendment.

Dissenters said the opinion dramatically weakened the protections of the "exclusionary rule," which enforces the Fourth Amendment and is meant to deter the police from breaking the law to obtain evidence against suspects.

"The most 'serious impact' of the court's holding will be on innocent persons 'wrongfully arrested based on erroneous information [carelessly maintained] in a computer data base,' " Justice Ruth Bader Ginsburg wrote. She was joined by Justices John Paul Stevens, David H. Souter and Stephen G. Breyer.

She said the decision would give law enforcement great leeway in justifying arrests and little incentive to correct problems such as defective computer databases.

There is no dispute that it turned out that officers in Coffee County, Ala., did not have cause to arrest Bennie Dean Herring in 2004, but they did not know it at the time. Herring was well-known to law enforcement, and when he showed up to retrieve something from his impounded truck, officers checked to see whether there was an outstanding arrest warrant.

A clerk in a neighboring jurisdiction said there was, so officers promptly arrested Herring and then found methamphetamine in his pocket and a pistol -- which as a felon he could not lawfully possess -- in his truck. About 15 minutes later, the clerk called back to say that the computer had made an error and that the warrant had been withdrawn months earlier.

Herring argued to lower courts that the evidence should have been suppressed because the rescinded warrant meant his arrest was illegal.

But Roberts wrote that the judicially created exclusionary rule did not provide that such evidence be automatically kept from juries. He said justices decided in 1995 that a similar computer mistake -- in that case, attributable to judicial personnel -- was a "good-faith" error that did not warrant throwing out an arrest.

Yesterday's decision extends that to law enforcement personnel. "As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence," Roberts wrote. "The error in this case does not rise to that level."

Paul Cassell, a former federal judge who teaches at the University of Utah law school, agreed that the decision seemed to be a natural extension of the court's positions. "I thought this was a fairly straightforward case for the government," he said.

Defense lawyers disagreed. "Whether it intends it or not, in effect, the court is promising in the future to reward sloppy police work. Ironically, that's one of the kinds of conduct the exclusionary rule was created to correct," John Wesley Hall, president of the National Association of Criminal Defense Lawyers, said in a statement. "They should call it the 'Barney Fife' exception to the Fourth Amendment."

In a second criminal case decided yesterday, Ginsburg wrote that judges, rather than juries, may find facts that allow them to impose sentences that run consecutively rather than concurrently.

Ginsburg was joined by Stevens, Kennedy, Breyer and Alito in ruling against an Oregon man who said that only a jury could have decided the facts necessary to consign him to consecutive sentences on burglary and sexual assault convictions.

The decision seemed to move away from a line of cases the court has decided since 2000 that require juries to find facts that result in longer sentences. But Ginsburg said the "decision to impose sentences consecutively is not within the jury function that 'extends down centuries into the common law.' "

Scalia wrote a dissent saying the decision "directly contradicts what we held eight years ago and have reaffirmed several times since."

The cases decided yesterday are Herring v. United States and Oregon v. Ice, respectively.

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