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Departments : Point of Law

Official Misinformation

Errors don’t necessarily mean suppression of evidence.

March 01, 2009  |  by Devallis Rutledge - Also by this author

Herring v. U.S.

For many years, most lower courts ruled that the Evans exception should only apply to judicial errors, but not to innocent mistakes made by other members of the law enforcement community, including outside agencies, parole and probation officers, correctional officers, and others. Many court decisions ordered evidence suppressed when official misinformation came from reliable sources outside the judicial branch.

But after the Supreme Court opinion in Hudson v. Michigan cautioned judges not to apply the exclusionary rule automatically just because an error may have occurred, the Eleventh Circuit Court of Appeals denied suppression in a case involving a police error, and the case went to the Supreme Court, which issued its ruling in 2009.

During a consensual encounter with Bennie Dean Herring, officers in Coffee County, Alabama, checked his warrant status in neighboring Dale County. An employee of the Dale County Sheriff's Department mistakenly notified officers that Herring had an active arrest warrant. Minutes later, the Dale County officials discovered that the warrant had been recalled but that the computer database inexplicably had not been updated according to standard procedure. Coffee County deputies were immediately notified; however, Herring had already been arrested and searched, revealing drugs and an illegal weapon.

Herring moved to suppress the evidence, since the official misinformation had been generated by police error, rather than judicial mistake. The federal district judge denied suppression, and the Eleventh Circuit affirmed. Herring appealed to the Supreme Court. Upholding the admission of the evidence against Herring, the Supreme Court said this:

"Suppression is not an automatic consequence of a Fourth Amendment violation. Indeed, exclusion has always been our last resort, not our first impulse. We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation. Instead, we have focused on the efficacy of the rule in deterring Fourth Amendment violations in the future."

With this focus, the court held that the isolated computer error that led to Herring's arrest was not an act of misconduct or culpable negligence sufficient to invoke the exclusionary rule:

"Evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment. 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. In such a case, the criminal should not 'go free because the constable has blundered'."

The court cautioned that exclusion might still be appropriate if an error arose because a law enforcement database was poorly maintained or contained deliberate misinformation "to lay the groundwork for future false arrests." (Herring v. U.S.)

The Evans-Herring Rule

Under the combined holdings of Evans and Herring, you may reasonably rely on information coming through "official channels" to justify a detention, arrest, or search. Unless a criminal defendant can show that the source of the information is an unreliable system marked by frequent errors or containing knowingly false entries, the fact that the information you received in an isolated case turns out to have been erroneous will not trigger application of the federal exclusionary rule.

Independent State Grounds

Whenever the U.S. Supreme Court issues a new decision holding that suppression of evidence is not appropriate under the Weeks-Mapp exclusionary rule (which is followed by all federal courts and the courts of most states), it's always necessary to note that a few states base greater exclusion on their state constitutions. The highest courts of those states may issue rulings that compel wider suppression of evidence in state courts. Always check with local advisers to verify the situation in your jurisdiction.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as Special Counsel to the Los Angeles County District Attorney. He is the author of 11 books, including "Courtroom Survival, The Officer's Guide to Better Testimony."

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