U.S.-China Surveillance

Last week, a Supreme Court ruling deserving of much more attention than it has received to date, added to the steady erosion of Fourth Amendment protections Americans have been suffering since the September 11th attacks. Just how much the ruling has diluted the Fourth Amendment is open to debate, but there is little doubt that constitutional protections against unreasonable search and seizure are weaker after the January 14th Herring v United States (decision, pdf) decision than they were before.

The case involved the police search of Alabama resident Bennie Dean Herring’s truck. After a local crime database indicated Herring was wanted for arrest in a neighboring county, police searched his truck, finding methamphetamines and and an illegal firearm. Minutes after the search, attempting to retrieve the original arrest warrant from the system, police realized that the warrant had expired five months earlier.

Herring later challenged his arrest in court, arguing that the exclusionary principle of the Fourth Amendment, which prevents evidence obtained in an illegal search from being presented in court, applied in his case.

In the Supreme Court ruling, the 5-4 majority held “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements,the exclusionary rule does not apply.”

In their unsuccessful Amicus brief to the court, EPIC warned that in an age where the use of electronic databases is increasing, removing database errors from the exclusionary principle would extinguish a key motivation for accuracy.

To allow law enforcement agencies to rely on inaccurate data will exacerbate further a problem that implicates both the fairness of the criminal justice system as well as the design and operation of government information systems….to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system.

Tom Goldstein at SCOTUS Blog points out a key aspect of how the decision might impact police conduct:

The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake – i.e., he is merely negligent – the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct….

The rubber will hit the road in cases in which the officers’ error is one of fact, not law. Herring is such a case – the officer is said to have reasonably relied on the information provided by a police warrant clerk. But what about the more common circumstance in which an officer, based on information not provided by anyone else, negligently but erroneously concludes that probable cause exists. For example, the officer believes that an individual is wanted for arrest but doesn’t call to confirm that fact, or the officer believes that a bag contains marijuana but a closer inspection would have shown otherwise. In the past, those cases would have automatically triggered the exclusionary rule – the Fourth Amendment violation required exclusion.