On Wednesday January 14, in the case of Herring v. United States, the Supreme Court further signaled its hostility to the exclusionary rule. The exclusionary rule is the rule that does not permit state or federal prosecutors to use evidence against defendants that was acquired in violation of the law or the Constitution.
Many people have criticized this rule observing, “Because the constable blunders the criminal goes free.” On the other hand if governments can make use of illegally acquired evidence what deters governments from violating the law themselves in order to combat crime??
In Herring v. United States the police mistakenly arrested the wrong man pursuant to the warrant. Although they had the wrong man, they did catch a criminal. When he was wrongfully seized the police found a gun and methamphetamine. Because the man had been convicted of a felony before the mere possession of the gun constituted a felony offense.
Justice Roberts, writing for the majority of justices, held that the exclusionary rule should be employed as a last resort and that judge should use a sliding scale when determining whether to exclude evidence. According to Justice Roberts the police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it and sufficiently culpable so that such deterrence is worth the price paid by the justice system.
In the past illegally seized evidence was illegal and could not be used in court, period. In the 1980s the Supreme Court departed from that analysis and held that if a neutral magistrate judge screwed up, rather than a police officer, the illegally seized evidence was nevertheless admissible. More recently the Supreme Court held that if the police violated the rule requiring them to “knock and announce” before charging into a home, subsequently seized evidence was not subject to the exclusionary rule. Now they have carved out from the purview of the exclusionary rule evidence that is illegally seized as the result of police officer negligence.
The significance of this decision is profound. As a practical matter the courts are only going to exclude evidence when it shocked by the police conduct and believes the police are engaging in intentionally illegal conduct. If the police for example, ignore the legal requirements for getting permission to set up a wiretap it is unlikely the courts are going to hold under those circumstances the evidence should be admissible. If the police, for example, break into a suspect’s home just to “fish” for evidence, it is unlikely the courts are going to permit the prosecutor to make use of that illegally seized evidence. Such cases are few and far between. The old rule required the police to be on their toes and try to get it right. Now it may actually pay for the police to be a little incompetent.