The Pluribus Driver

Last Wednesday, the 14th of January, the US Supreme court handed down a decision in the case of Herring v. United States, on the matter of the Fourth Amendment’s protection against unreasonable search and seizure. The majority opinion acts as a crystal-clear example of why the appointments of Alito and Roberts were so important to conservatives, and why the spineless Democrats in the Senate should have blocked at least one of them.

The contention of the Defendent, Bennie Herring, is that his Fourth Amendment rights against unreasonable search and seizure were violated when he was arrested for an outstanding warrant against him (the warrant had been erroneously issued and withdrawn five months earlier.) In a search pursuant to the arrest, drugs were found on Herring’s person, and a gun (which he is not allowed to own due to an earlier felony conviction) was found in his truck.

The Court, in fact, does not dispute that Herring’s constitutional rights were violated. In the majority opinion, Chief Justice Roberts writes, “The parties here agree that the ensuing arrest is still a violation of the Fourth Amendment.” The Court disputes, he says, that the illegally-obtained evidence should be excluded from future prosecutions. The reason being that the Court has come to view the Fourth Amendment’s exclusionary rule not as a means of protecting individual rights, but rather as a way of deterring law enforcement officials from abusing the Fourth Amendment. In this case, Roberts argues, the deterrent effect is minimal, since the violation was “a negligent failure to act, not a deliberate or tactical choice to act.” Therefore, “the benefit of suppressing the evidence would be marginal or nonexistent.”

While it may seem like a fine line, the Supreme Court has come to view the Fourth Amendment solely as a tool for promoting proper police procedure, rather than as a means of protecting individuals from wrongful police action. Since the benefit in this case would be to shield a defendant (whom Roberts has presumed to be guilty*) from prosecution based on ill-gotten evidence rather than to deter future police misconduct, the Court decided to allow the evidence in court.

To trigger the exclusionary rule, 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. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

So if your constitutional rights are violated inadvertently, then the Supreme Court doesn’t want to hear about it. They don’t care about protecting individuals’ rights; they simply want to provide a deterrent to possible future deliberate violations. That’s what Bush is leaving us. Obama may be able to un-do most of the damage done through executive order, congress may be able to fix what was broken through legislation, but nobody can change the fact that Bush gave us a Supreme Court that cares very little about the rights of the individual.

*Regarding the Supreme Court’s rule of excluding evidence obtained by violating the Fourth Amendment, Roberts says, “The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free.” In the eyes of the Court, once the police have evidence against you, you are guilty. The Court’s concern is not whether a search was illegal, but “whether a reasonably well trained officer would have known that the search was illegal.” After all, if the result of excluding evidence obtained through an illegal search is to protect a single individual’s constitutional rights, rather than to provide some grand deterrent to future law enforcement officers, it’s just not worth it. As Roberts says, it does not “pay its way.”

As an interesting side note with regard to the Court’s presumption of guilt, Roberts states “Herring was no stranger to law enforcement.” He does not elaborate as to why this was cause for Officer Anderson to perform a warrant search on the man. In the dissenting opinion, though, we get a few interesting details of the case’s background.

On a July afternoon in 2004, Herring came to the Coffee County Sheriff’s Department to retrieve his belongings from a vehicle impounded in the Department’s lot. [...] Investigator Mark Anderson, who was at the Department that day, knew Herring from prior interactions:Herring had told the district attorney, among others, of his suspicion that Anderson had been involved in the killing of a local teenager, and Anderson had pursued Herring to get him to drop the accusations.

Interesting.