SEARCHES AND SEIZURES

Back in 2004, Bennie D. Herring drove to the Coffee County, Ala.,
sheriff's office to check on an impounded truck. Upon Herring's
arrival, Investigator Mark Anderson asked the warrant clerk to check
for any outstanding warrants. Mr. Anderson was told there was an
outstanding felony warrant for Herring's arrest, issued by the Dale
County Sheriff's Department.

Mr. Anderson and another officer thereupon arrested Herring,
searching him and finding methamphetamine and an unloaded handgun.

Only a few minutes later, the Dale County clerk informed the Coffee
County department that the warrant showing up on their computers was
out of date. The warrant had been recalled.

Prior to trial, Herring attempted to invoke the exclusionary rule to
have the drug evidence suppressed, claiming that the arrest was
unlawful. That motion was denied by a federal court.

There's a perfectly good "real world" reason for the exclusionary
rule, in which the courts have held for a century that police can't
use evidence obtained from an improper, unconstitutional, warrantless
search. If police could use such "poisoned" evidence to win
convictions despite violating suspects' rights, there'd be no real
incentive for them to respect those rights. The Fourth Amendment
rights intended to keep us safe from unreasonable, warrantless
searches would essentially disappear.

Herring's lawyers appealed to the 11th U.S. Circuit Court of Appeals,
which denied the appeal, citing the "good faith" exception to the
exclusionary rule created by United States v. Leon. The evidence was
admissible because the officers and their department were not the
cause of the arrest warrant error, the appeals court held.

Last fall, the Herring case reached the U.S. Supreme
Court.

On Wednesday, in a tight 5-4 decision, the "police state" wing of the
high court finished the job of carving out yet another exception to
the valuable exclusionary rule.

"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 problem with that, as pointed out by Justice Ruth Bader Ginsburg
in a thoughtful dissent, is that it creates no incentive -- as a
matter of fact, it creates a disincentive -- for police agencies to
keep their records up to date.

We see here that conservatives as well as bleeding hearts can succumb
to the temptation to whittle down constitutional protections, in this
case arguing the benefit to "law and order." Things do not get more
lawful or more orderly when greater numbers of citizens who have
committed no violent offense have to worry about being searched,
seized, tried and imprisoned because a computer file wasn't updated.

Herring is probably not an admirable character. But make no mistake:
By shrugging away the rights of Bennie D. Herring, the court
continues the ongoing erosion of constitutional guarantees intended
to protect us all.