Fred Mark Dry Criminal Law Blog on Lawyers.com

Chicago criminal lawyer Fred Mark Dry examines:

That’s what New York Times editorial observer Adam Cohen asked in his editorial on February 19, 2009.

He was writing about the recent U.S. Supreme Court decision in the case of Herring v. United States.  In that case, Mr. Herring had been arrested by police on a warrant.  The Court had previously recalled the warrant, but the police computer database did not reflect that information.  A clerk in the police department had failed to remove the warrant. 

Mr. Herring’s attorneys asked the court to suppress evidence seized as a result of the arrest on the warrant.   Prior to this case, courts routinely would suppress evidence come upon in this manner in order to deter what was previously considered unlawful evidence gathering by police.  It was thought that this was a search without a warrant and illegal.   The Supreme Court in Mapp v. Ohio, the case from which the rule emerged, agreed that this rule might allow criminals to go free.  The Exclusionary Rule was devised “to compel the more important goal of compelling the nation’s police forces to obey the law”.

In Herring, Chief Justice John Roberts, writing for the majority found that a police clerk’s failure to remove a warrant from a police database after a court had recalled it was not a situation which justified the application of the Exclusionary Rule.  He wrote “that police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system”.  He reasoned that errors in police databases are isolated mistakes and are not among the exclusionary rule’s “core concerns”.   In a case decided after Herring, a New Jersey federal judge ruled that a falsehood provided by law enforcement which led to the issuance of a search warrant was not sufficient to undermine the validity of the warrant.  The court stated that “This conduct while hardly qualifying as a model of efficient, careful and cooperative law enforcement does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve it’s deterrent purpose and outweigh the cost of suppressing evidence”.

When Courts accept evidence which was arguably uncovered by unlawful police conduct, despite the admitted police misconduct, is there an exclusionary rule?  Will the narrowing of the exclusionary rule result in greater abuses?   In an earlier case where the police in executing a search warrant failed to knock and announce their presence the Supreme Court allowed the admission of evidence.   The majority opinion in Hudson v. Michigan, written by Justice Scalia, suggested that abuses would not happen because “People whose rights were violated may now sue police officers, and police departments are more professional.  In light of these factors resort to the massive remedy of suppressing evidence of guilt is unjustified.”  The opinion cited the work of criminologist Samuel Walker to support the claim of greater police professionalism.  However, Mr. Walker in an opinion article in the LA Times said that Justice Scalia had misrepresented his work.  He clarified his position by stating “Better police work was a consequence of the exclusionary rule rather than a reason to do away with it.

Chicago Criminal Defense Attorneys
Fred Mark Dry
203 North LaSalle Street, Suite # 2100
Chicago, IL 60601
Phone: 866-935-0295