Letting Police Incompetence Trump Individual Rights

Somewhat overlooked in last week's pre-inauguration fervor was a very significant ruling from the Supreme Court, in the case Herring v. United States (*.pdf). In a 5-4 split led by Bush appointee and Chief Justice John Roberts, the Court upheld the conviction of Bennie Dean Herring on federal drug and gun charges, finding that evidence discovered after his arrest, which was based on incorrect information from police files, could still be used against him.

The exclusionary rule, a principle of constitutional law rooted in the Fourth Amendment's protection from unreasonable search and seizure, has long maintained that evidence obtained illegally - either intentionally or through negligence - should be suppressed. The Herring decision significantly diminishes that legal protection. From the New York Times article on the ruling:

Bennie Dean Herring was arrested on what the Coffee County, Alabama sheriff's department thought was a valid warrant from a neighboring county. It turned out that the warrant for Herring's arrest had been recalled five months earlier.

Herring argued that police negligence should automatically lead to the suppression of evidence found after an unjustified arrest.

But Chief Justice John Roberts, writing for the court, said the evidence may be used ''when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements.''

Fans of movies in which righteous cops chase down criminals who have escaped justice because a judge invalidated evidence based on a "technicality" might think this is a good thing. As Justice Ruth Bader Ginsberg noted in her dissent, however, this ruling "leaves Herring, and others like him, with no remedy for violations of their constitutional rights."

For law-abiding citizens, that might not seem important, but what is so often lost in debates about decisions like this is that the ultimate goal of the exclusionary rule is not to prohibit the use of evidence obtained by improper searches in court, but to ban the bad searches themselves. While the focus is usually on whether criminals go free because evidence needed to convict them is inappropriately acquired, the real issue is that discouraging the police from conducting improper searches is designed to safeguard the innocent, not the guilty.

If law enforcement does not have an incentive like the exclusionary rule, which is intended to ensure that all searches and seizures - not some, or most, but all - are reasonable and proper, then they lack an incentive to exercise care in whom they search and why they search them. Worse, the Herring ruling opens up the very real possibility that unscrupulous or lazy police officers might simply stage errors to provide cover for themselves in improper searches such as this one from Indiana in 2007:

Now, you might agree with the sheriff's deputy in the video above, or find the camera man unlikable or annoying, but the man who made the tape is totally, 100% within his rights. You might also feel that the health inspector should be allowed to do her job or that she has just cause for being on the videographer's property, but again, the man with the camera is completely correct that she has no right whatsoever to enter his property. The Bill of Rights is not designed for the convenience of the state; it is designed for the protection of the citizenry.

The fact of the matter is that there are very clear procedures for obtaining a search warrant. If there is insufficient evidence to support a warrant - or if law enforcement personnel can't be bothered to get one or to properly process one, as in the Herring case - that should mean that no search is performed, and any evidence obtained without a warrant, without genuine probable cause or through improper means - should be suppressed. Without that protection, the opportunity for police harassment is enormously expanded, and suborning individual rights to police incompetence holds potential for the massive abuse of authority by law enforcement agencies and personnel.