In Herring, SCOTUS was presented with the issue of whether the Fourth Amendment required suppression when a negligent error in a police database led an officer to incorrectly believe that there was an arrest warrant out for a suspect and arrest him. Chief Justice Roberts, writing for the majority, held that “[w]hen police mistakes are the result of negligence such as that described here, rather than systemic errors or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way.”

According to the majority, the exclusionary rule is not an individual right and applies only when it will result in appreciable deterrence. Because originally the purpose of the exclusionary rule was to provide incentive for the government to stop violating suspect’s constitutional rights, a Fourth Amendment violation does not necessarily mean that the exclusionary rule applies. Instead, “[t]he deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” In conducting the balancing test required by the exclusionary rule, the more culpable the officers, the more reason to suppress the evidence. Triggering the exclusionary rule requires deliberate, reckless or grossly negligent conduct on the part of the officers under the majority opinion. Recurring or systemic negligence are also mentioned.

As Ginsburg’s dissent points out, this seems to be assuming that the exclusionary rule “is capable of only marginal deterrence when the misconduct at issue is merely careless, not intentional or reckless.” The problem, as she mentions, is that this contradicts a basic assumption of tort law – that liability for negligence creates an incentive to act with greater care. Justice Ginsburg also points out that the exclusionary rule is the only significant means of redress an individual has in a situation like Herring’s.

We’ll have to wait to see the ultimate significance of this opinion. In some ways, the facts of Herring are quite specific and provide ample grounds for distinctions. At one point the majority describes the error at issue as a result of isolated negligence attenuated from the search. Limited to situations like that, the decision is of relatively little consequence.

On the other hand, the majority opinion certainly supports the proposition that negligent violations of the Fourth Amendment are immune from the exclusionary rule. This would be a significant expansion of the so-called “good faith” exception and blow to what protections remain of the Fourth Amendment.

If I were arguing for suppression in federal court post-Herring, I would latch on to the attenuation language and hold on to with everything I had. But maybe that’s just me…

Herring v. U.S.