Who Watches the Watchmen
I am looking forward to the movie on Friday and I thought this was appropriate topic for today.
Sometime prior to February 2004 an arrest warrant was issued in Dale County, Alabama for Bennie Dean Herring. The warrant had been issued in error and was recalled and removed from the files in February 2004. Unfortunately, the warrant database for the Dale County Sheriff’s Department does not automatically update to reflect such changes.
On July 7, 2004, Herring drove to the Sheriff’s Department in neighboring Coffee County to retrieve something from his impounded truck. Investigator Mark Anderson learned of the warrant in Dale County, followed Mr. Herring out of the lot, arrested him, and searched his vehicle. The search turned up illegal possession of a weapon and drugs. Not more than fifteen minutes after learning of the warrant, the mistake had been cleared up but Mr. Herring had already been arrested and was being charged with the crimes.
Mr. Herring claimed that the arrest was unlawful as a result of an invalid/recalled warrant but the court denied his motion to suppress the evidence and convicted him to 27 months in prison. The 11th Circuit later affirmed that decision citing United States v. Leon, 468 U.S. 897 (1984).
The U.S. Supreme Court heard arguments concerning this case on October 7, 2008. They upheld the decision of the 11th Circuit (link) and published two dissenting opinions – Ginsburg with Stevens, Souter, and Breyer; and Breyer with Souter.
The Court’s argument is two-fold. Firsty, they argue that the exclusionary rule should not be applied in any case where the damage to the case far outweighs the deterrent effect suppression would have on the police in future incidents, and I would argue with this on two fronts. In the first place, I patently disagree that there is not sufficient deterrent effect. Secondly, I would argue that no such consideration should be made. I would argue that the exclusionary rule should be applied in all cases of police misconduct, incompetence, and negligence.
Justice Ginsburg in her dissent argues that these inaccuracies “so outraged the authors of the Bill of Rights” and quotes Justice Stevens dissent in Arizona v. Evans.
Inaccuracies in expansive, interconnected collections of electronic information raise grave concerns for individual liberty. “The offense to the dignity of the citizen who is arrested, handcuffed, and searched on a public street simply because some bureaucrat has failed to maintain an accurate computer data base†is evocative of the use of general warrants that so outraged the authors of our Bill of Rights. Evans, 514 U. S., at 23 (Stevens, J.,dissenting).
In his Evans diseent, Justice Stevens also explains that the exclusionary rule is not, as some claim, “extreme” and I agree with him wholeheartedly on this point. In his own words …
The exclusionary rule is not fairly characterized as an “extreme sanction,” ante, at 9. As Justice Stewart cogently explained, the implementation of this constitutionally mandated sanction merely places the Government in the same position as if it had not conducted the illegal search and seizure in the first place. [n.1] Given the undisputed fact in this case that the Constitution prohibited the warrantless arrest of petitioner, there is nothing “extreme” about the Arizona Supreme Court’s conclusion that the State should not be permitted to profit from its negligent misconduct.
The majority opinion in Herring also raises one other point that simply doesn’t make any sense to me. Justice Ginsburg brilliantly points out the wrongfulness in her dissent. Since I cannot state it any more succintly, I’ve quoted her arguments against this point below.
The Court assures that “exclusion would certainly be justified†if “the police have been shown to be reckless in maintaining a warrant system, or to have knowinglymade false entries to lay the groundwork for future false arrests.†Ante, at 11. This concession provides littlecomfort.
First, by restricting suppression to bookkeeping errors that are deliberate or reckless, the majority leaves Herring, and others like him, with no remedy for violations of their constitutional rights. See supra, at 6. There can be no serious assertion that relief is available under 42 U. S. C. §1983. The arresting officer would be sheltered by qualified immunity, see Harlow v. Fitzgerald, 457 U. S. 800 (1982) , and the police department itself is not liable for the negligent acts of its employees, see Monell v. New York City Dept. of Social Servs., 436 U. S. 658 (1978) . Moreover, identifying the department employee who committed the error may be impossible.
Second, I doubt that police forces already possess sufficient incentives to maintain up-to-date records. The Government argues that police have no desire to send officers out on arrests unnecessarily, because arrests consume resources and place officers in danger. The facts of this case do not fit that description of police motivation. Here the officer wanted to arrest Herring and consulted the Department’s records to legitimate his predisposition. See App. 17–19.6
Third, even when deliberate or reckless conduct is afoot, the Court’s assurance will often be an empty promise: How is an impecunious defendant to make the required showing? If the answer is that a defendant is entitled to discovery (and if necessary, an audit of police databases), see Tr. of Oral Arg. 57–58, then the Court has imposed a considerable administrative burden on courts and law enforcement.7
Most people agree that the exclusionary rule is not a perfect remedy in cases like this. Most of us would agree that Mr. Herring should have been arrested, tried, and most likely convicted of his crimes in this case. The importance of this case goes far beyond the details, though. The exclusionary rule may not be perfect but it is the only remedy we have and it seems to be fair on its face.
The point to me seems self evident. If the police obtain evidence based on any wrong-doing, incompetence, negligence, inaccuracy, or other “mix up;” the evidence should be inadmissible. This places the government in the same position as if it had not obtained said evidence. It is the ultimate “do over” we all used as children on the playground. It seems to me that it is the epitome of fairness.