THE FOURTH AMENDMENT DILUTED

With a lamentable 5-to-4 ruling on Wednesday, the Supreme Court
carved a new exception to the nearly century-old exclusionary rule,
which forbids prosecutors from using evidence obtained by the police
as the result of an improper search. The result was a meaningful
dilution of Americans' Fourth Amendment protections and one more
instance of the court's conservative majority upsetting precedent
without admitting that it is doing so.

The case centered on the 2004 arrest of Bennie Dean Herring by police
officers in Coffee County, Ala., based on a mistaken belief that he
was the subject of an outstanding warrant. It turned out that the
warrant, although still in the computerized database of a neighboring
town, had been withdrawn five months earlier. By the time the error
was discovered, officers had stopped Mr. Herring, handcuffed him,
searched him and his truck and found methamphetamine and an unloaded pistol.

No one disputed that Mr. Herring's arrest lacked probable cause and
that both the arrest and the search were therefore unconstitutional.
Nevertheless, the Supreme Court declined to exclude the seized
evidence, and upheld Mr. Herring's conviction on drug and gun
charges. The arrest was based on careless police record-keeping
rather intentional misconduct, the court reasoned.

"To trigger the exclusionary rule," Chief Justice John Roberts wrote
for the majority, "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."
The decision instructs judges to use a sliding scale to decide
whether police misconduct warrants suppressing evidence.

That may seem reasonable, but it ignores both the inadequacy in the
real world of using a cost-benefit calculus to deter unconstitutional
law enforcement conduct, and the harm of involving the courts in
trampling on people's rights by admitting the fruits of an
unconstitutional search. The decision also overlooks the importance
of preserving a strong incentive for maintaining accurate, up-to-date
records in an era of increased law-enforcement reliance on
coordinated computer databases. These points were noted by Justice
Ruth Bader Ginsburg in a thoughtful dissenting opinion.

The outcome was not very surprising. In recent years, the court has
carved out several "good faith" exceptions to the exclusionary rule,
and justices on the court's right flank have made no secret of their
ambition to carve out more. But until this week, those exceptions
were limited to instances when the improper search resulted from
nonpolice errors, say by judicial officers or a legislature -- not
solely from police behavior.

The danger of this ruling is that judges will read its broad
reasoning to prevent the exclusion of evidence in cases of negligent
police conduct going well beyond sloppy record-keeping.