The Smell of Herring: A Critique of the Supreme Court's Latest Assault on the Exclusionary Rule

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"The herring, the smell of herring again.... The smell of the herring had penetrated [one's] thoughts...."

~ MARTHA BLUM, THE WALNUT TREE 227 (1999).

I. INTRODUCTION

In 1961, about the time I began my labors in academe, the Supreme Court in Mapp v. Ohio (1) gave full effect to the Fourth Amendment by extending the suppression remedy of Weeks v. United States (2) to cases in the state courts as well. It was thus perhaps inevitable that the Fourth Amendment (in actuality "second to none in the Bill of Rights" (3)) should become my cheval de bataille. In the intervening years--almost a half century now--my main preoccupation (or, some would doubtless say, my obsession) has been with that Amendment, and thus, I have had occasion during that time to study and reflect upon what must be hundreds of Supreme Court decisions having to do with search and seizure. (4) Many of those decisions were, in my judgment, right on the mark, while others seemed to me only slightly off target. There is a third group of cases that, suffice it to say, I could not bring myself to describe so generously, and then, of course, yet another group that I would characterize as flat-out wrong.

And then came a case styled Herring v. United States, (5) a 5-4 decision handed down just this past January, which, I am chagrined to say, appears to deserve a category of its own, and not on the positive side of the scale. Herring, holding the Fourth Amendment exclusionary rule inapplicable whenever "the error was the result of isolated negligence attenuated from the arrest," (6) is not simply wrong; it is wrong over and over again! The opinion of the Chief Justice for the majority (1) falsely claims that cost-benefit balancing is an established basis for selectively applying the exclusionary rule at a criminal trial because of a police violation of the Fourth Amendment; (2) falsely represents that the Court's precedents support the proposition that the exclusionary rule may be selectively applied depending upon the degree of "culpability" attending the Fourth Amendment violation; (3) asserts as a foregone conclusion, without an iota of supporting analysis or evidence, the proposition that application of the exclusionary rule in the instance of a negligent violation of the Fourth Amendment has a reduced "deterrent effect"; (4) purports to cabin the holding by the apparent afterthought that the negligence must also be "attenuated," but without any explanation of what attenuation means in the instant or any other case, or why attenuation is relevant to the critical conclusion of reduced "deterrent effect"; and (5) inflicts upon trial and appellate courts new and uniquely difficult tasks to be performed in adjudicating Fourth Amendment claims. It is thus apparent that this Herring is no mere herring; it is surstromming, which (as any Swede can tell you) is touted as a "delicacy" but is actually attended by both a loathsome smell that "grows progressively stronger" and a dangerous capacity to "explode" beyond its existing boundaries. (7)

In Herring, an investigator, apparently suspicious because the defendant "was no stranger to law enforcement" and was seeking "to retrieve something from his impounded truck," requested that a warrant check be run on him and was advised that the computer database in the sheriff's department of a neighboring county showed "an active arrest warrant for [his] failure to appear on a felony charge." (8) On the basis of that information, the investigator arrested the defendant and, in a search incident to the arrest, found drugs and a pistol on his person, ultimately leading to federal prosecution. It was subsequently determined that the computer record was in error and that, actually, the warrant had been recalled five months earlier. The court of appeals assumed that whoever failed to update the sheriff's records "was also a law enforcement official," (9) but nonetheless affirmed the district court's denial of defendant's motion to suppress because "the conduct in question [wa]s a negligent failure to act, not a deliberate or tactical choice to act. …