In a decision that changes the very future of Law & Order plot twists, the Supreme Court today ruled in Herring v. United States that the exclusionary rule — which sometimes gets improperly obtained evidence ruled inadmissible, allowing TV and real criminals to wriggle free — is not absolute. Bennie Dean Herring had been arrested when a police info search revealed that there was a warrant out for him on a separate charge; the warrant turned out to have been recalled, and Herring’s lawyers wanted the evidence revealed upon arrest invalidated on that basis. “The exclusionary rule serves to deter deliberate, reckless or grossly negligent conduct, or in some circumstances recurring or systemic negligence,” said Chief Justice Roberts. Otherwise, anything goes.
SCOTUSblog’s Tom Goldstein, who was involved in the case, says that though the specific legal question — “whether the Court’s prior ruling that errors by judicial clerks do not trigger the exclusionary rule should be applied to police clerks” — was narrow, the ruling’s effect will be broad. “It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search,” says Goldstein. “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.”
The Court split 5-4 along the usual lines, with Alito, Kennedy, Scalia and Thomas joining the Chief Justice.
This article from the Village Voice Archive was posted on January 14, 2009