COURT RIGHT TO IGNORE HONEST MISTAKE BY POLICE IN SEARCH

At first glance, the U.S. Supreme Court's decision this month in
Herring v. U.S. looked like yet another widening of what might be
called the Drug Law Exception to the Fourth Amendment, which protects
citizens against unreasonable searches and seizures.

Bennie Herring came into a sheriff's station in Coffee County, Ala.,
to retrieve some possessions from an impounded car. A deputy thought
there might be a warrant out for his arrest and asked the clerk to
check the database. No warrant there. So the clerk was asked to
check with neighboring Dale County. The warrant clerk checked the
database and found that there was an outstanding warrant.

Deputies followed Herring's car and pulled him over. A search turned
up methamphetamine and a pistol under the front seat, which, as a
felon, it was illegal for him to own.

But within minutes a call came from Dale County to the effect that
the warrant had been recalled, but that fact had not been entered
into the database. So there was no warrant, and therefore no valid
reason for pulling Herring over.

At trial Herring's attorneys moved to exclude the evidence
represented by the meth and the gun. The trial judge allowed the
evidence and Herring was convicted. A federal appeals court upheld
the trial judge's decision.

The exclusionary rule, whereby evidence illegally obtained can be
excluded from a subsequent trial, is not in the Constitution but was
developed by the courts to deter police from conducting illegal or
unconstitutional searches. Violate the Constitution, goes the
reasoning, and you probably won't get a conviction, so you'll think
twice the next time you're tempted to cut constitutional corners.

One could argue that a better remedy would be to punish the police
officer directly rather than punishing the general public by allowing
a guilty person to evade conviction. Given the uncertainty that
errant police officers would actually be punished for conducting
illegal searches, however, the exclusionary rule, imperfect as it may
be, is probably the most effective real-world deterrent to police
misconduct.

The question in Herring, however, is whether excluding the evidence
would serve as a real deterrent under these particular circumstances.
The high court agreed that not updating the database (the warrant had
been recalled five months before the incident) was negligent but
inadvertent It hadn't been done to target Herring; it was simply a
mistake.

The Supreme Court decided, 5-4, that applying the exclusionary rule
in this case - especially given that it was a different jurisdiction
that made the error - would not have served as a deterrent to similar
errors in the future. So the conviction was allowed to stand.

As Roger Pilon, vice president for constitutional studies at the
libertarian Cato Institute told us, "the exclusionary rule was
intended to police the police. If it doesn't serve that purpose,
there's little reason to apply it."

One can imagine ways in which this precedent could be abused, but
most of them involve outright bad faith on the part of police, which
no rule can eliminate entirely. One can also imagine ways the
precedent might be expanded to authorize other questionable searches.
On the basis of the facts in this case, however, the Supreme Court
seems to have gotten it right.