Just How Extreme Must Police Negligence Be to Suppress?

February 26, 2009

search-warrantOur office does a lot of criminal defense work, so I am always interested in developments in 4th Amendment Search and Seizure law.

Last month, the Supreme Court made it more difficult for a defendant to have evidence  suppressed in its decision in the case of  Herring v. U.S.  In that case, police consulted clerks in a neighboring county regarding the existance of an arrest warrant for Mr. Herring. They had not updated their system to reflect that an arrest warrant against Herring was not current. In reliance on the arrest warrant that they thought existed, police arrested Herring and found drugs and a gun. Herring moved to suppress the evidence against him because it was found in the course of an arrest that was not supported by a valid warrant. 

In an opinion by Justice Scalia, the Supreme Court ruled that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” However, the Court held that the quirky failure of the clerks in the neighboring county to update the warrant system was not “so objectively culpable as to require exclusion.”

The Fourth Amendment Blog reported on the Illinois Appellate Court case of People v. Morgan from two weeks ago where the police tried to rely on Herring to avoid the exclusion of certain evidence of drug crimes that the police found while executing an invalid search warrant at Morgan’s home. There, the police relied on a list of search warrants that was up to three days old, rather than following their own procedure of printing out an updated list of valid search warrants every day.

Quite appropriately in my opinion, the Illinois appellate court reversed the trial court’s decision not to suppress the evidence. It held that Herring’s ruling was not applicable to the facts surrounding the search of Morgan’s home. 

  1. In Herring, the error in updating the warrant records was made by a clerk, not by the authors actually executing the warrant, as was the case with Morgan. Since the mistake was not made by police officers, exclusion of the evidence couldn’t meaningfully deter the not-systematically-negligent conduct of those non-police officers.
  2. In Herring, the officers’ reliance on the warrant was not negligent because  they were told it was valid by the clerk. But the officers were negligent in Morgan because they used an up to three day old warrant list without even attempting to verify the continued validity of the search warrant against Morgan.
  3. The mistake that led to the out-of-date warrant in Herring was merely negligent, and therefore would not be meaningfully deterred by excluding the evidence obtained in the course of executing that warrant. But in Morgan, Exclusion of the evidence would lead to meaningful deterrence because it will motivate officers to be careful to use up-to-date warrant lists, as per their own department’s policy.

Herring was not meant, by the Supreme Court, to give carte blanche approval of police negilgence in the execution of warrants and should not be used that way. Society’s need for order and protection from criminals is essential, but the power to invade private homes and detain people is a great and awesome power, and thus it comes with a heavy burden of responsibility to exercise that power with great care.

Picture courtesy of fbi.gov.

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