Is the Exclusionary Rule Dead?

Article excerpt


In Herring v. United States, (1) the Supreme Court cast serious doubt on the continued existence of the exclusionary rule when it issued a narrow holding stating that exclusion is inappropriate when police misconduct is "the result of isolated negligence attenuated from the arrest." (2) The Court went on to suggest that evidence should be excluded only when it is obtained through "deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence." (3) In Herring, the police relied on another county's erroneous report that an arrest warrant was in effect for the defendant, but the Court applied its new standard and refused to exclude evidence found during his subsequent arrest. (4)

In most cases, the police mistake will not be "attenuated" from the arrest or search, nor will it be reckless, deliberate, or grossly negligent. The Supreme Court has insisted, in numerous contexts, that the courts should not probe the minds of police officers in order to determine the reasonableness of police behavior. (5) Herring seems to establish a test based on "deliberate" or "reckless" conduct; this test has "sent courts rushing into the minds of police officers." (6) Nor is it clear what "recklessness" means. Was the Court adopting the narrow Model Penal Code standard of "consciously disregard[ing] a substantial and unjustifiable risk" of a Fourth Amendment violation, (7) which would be virtually impossible for defendants to prove? Or was it establishing some lesser standard? Further, the Court assumed that police recklessness could be deterred by exclusion but negligence could or should not be. This is not obvious. Herring thus raised many questions about the scope of the exclusionary rule that the Court was redefining. (8)

In Davis v. United States, (9) decided last Term, the Supreme Court answered one of these questions as to one type of case and made it seem unlikely that Herring might be limited to its narrow holding. Davis held that when police followed existing circuit precedent and searched a car incident to arrest, the fact that the Supreme Court had subsequently invalidated that precedent did not justify exclusion. (10) This result seems easy since the police were not even negligent in this case. However, to what extent the exclusionary rule applies to various other kinds of scenarios remains unclear. (11) The post-Herring decisions of the courts of appeals suggest that the exclusionary rule is not dead but has been significantly limited by Herring.

This Article will examine Herring, its predecessor, Hudson v. Michigan, (12) the courts of appeals decisions interpreting them, and Davis in an attempt to determine the current status of the exclusionary rule. The Article proposes that "simple isolated negligence," which Davis claims is no basis for exclusion, should be distinguished from "substantial negligence" in which the suspect's privacy interests are seriously compromised by police negligence. In the three cases decided so far, the police negligence has either not interfered with a substantial right and been attenuated from the finding of the evidence (Hudson), or the arresting officers have acted entirely reasonably (Herring and Davis). Therefore we do not yet know how the Court will react to a case in which (1) there is police negligence, (2) that negligence substantially interferes with a suspect's privacy interests, as in an illegal arrest, a car search, or a warrantless search of a home, and (3) the negligence is not "attenuated" from the finding of the evidence. Thus, there is still some hope for the exclusionary rule.


Although Herring is considered the main case on the status of the exclusionary rule, its predecessor, Hudson v. Michigan, (13) fired the first shot of the current Court's attack on the rule. In Hudson, police executing a search warrant failed to knock and announce before entry, thus admittedly violating a requirement of Fourth Amendment law. …