Criminal Procedure
Theory and Practice

Second Edition

by Jefferson L. Ingram


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Chapter 3 Update 3.14

Searches and Seizures: Places, Persons and Vehicles

Herring v. United States

Significance of the Case: Where sworn or unsworn police officials negligently create errors in recordkeeping or data base entry that lead to unlawful Fourth Amendment arrests and subsequent unlawful searches undertaken in good faith by police, evidence discovered generally will not be subject to suppression under the exclusionary rule of Mapp v. Ohio because exclusion would not alter or deter subsequent police behavior.

Herring v. United States

Supreme Court of the United States

555 U.S. ___, 2009 U.S. LEXIS 581 (2009).


Herring had been permitted to retrieve some property from his truck that had been impounded by police. When one officer became aware of Herring's presence, he requested that the Coffee County warrant clerk determine whether there were any outstanding warrants for Herring. Although no warrant existed in the home county, one did exist in a neighboring county.

Officers in Coffee County arrested defendant Herring based on a warrant listed in Dale County's database. During a search of Herring's person the officers found drugs and a gun. It was later revealed that the warrant had been recalled by Dale County five months earlier, although this information had never been entered into the Dale County warrant database.

An Alabama federal grand jury indicted Herring on federal gun and drug possession charges but Herring moved to suppress the evidence discovered after his arrest on the ground that his initial arrest had been illegal. The Dale County warrant for Herring's arrest had been recalled because it had been issued in error. Herring's motion to suppress was denied because the court found that the exclusionary rule did not apply because the arresting officers had acted in a good-faith belief that the Dale County warrant was still outstanding. According to the trial court, to trigger the exclusionary rule, 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 court concluded that the arresting officers were innocent of any wrongdoing, and that Dale County's failure to update the records was merely negligent, so the benefit of suppression would be marginal or nonexistent. Therefore, based on the good-faith rule of United States v. Leon, police officers had no reason to believe their actions were illegal so the evidence was admissible as an exception to the exclusionary rule.

The United States Court of Appeals for the Eleventh Circuit affirmed the decision. The Supreme Court granted certiorari to resolve a conflict among the circuits where other courts had required exclusion of evidence obtained through similar police errors.

Procedural Issue:

When isolated negligence by police personnel lead police to make mistakes leading to an unlawful arrest and subsequent search, should the exclusionary rule of the Fourth Amendment be applied so as to exclude the evidence?

Held: No.


[Chief Justice Roberts delivered the opinion of the Court in which Scalia , Kennedy , Thomas , and Alito , JJ., joined. Ginsburg , J., filed a dissenting opinion, in which Stevens , Souter , and Breyer , JJ., joined. Breyer , J., filed a dissenting opinion, in which Souter , J., joined.]

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When a probable-cause determination was based on reasonable but mistaken assumptions, the person subjected to a search or seizure has not necessarily been the victim of a constitutional violation. The very phrase "probable cause" confirms that the Fourth Amendment does not demand all possible precision. And whether the error can be traced to a mistake by a state actor or some other source may bear on the analysis. For purposes of deciding this case, however, we accept the parties' assumption that there was a Fourth Amendment violation. The issue is whether the exclusionary rule should be applied.


The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," but "contains no provision expressly precluding the use of evidence obtained in violation of its commands," Arizona v. Evans, 514 U.S. 1(1995). Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g., Weeks v. United States, 232 U.S. 383, 398 (1914). We have stated that this judicially created rule is "designed to safeguard Fourth Amendment rights generally through its deterrent effect." United States v. Calandra, 414 U.S. 338, 348 (1974).

In analyzing the applicability of the rule, [United States v.] Leon admonished that we must consider the actions of all the police officers involved. 468 U.S., at 923, n 24, ("It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination"). The Coffee County officers did nothing improper. Indeed, the error was noticed so quickly because Coffee County requested a faxed confirmation of the warrant.

The Eleventh Circuit concluded, however, that somebody in Dale County should have updated the computer database to reflect the recall of the arrest warrant. The court also concluded that this error was negligent, but did not find it to be reckless or deliberate. 492 F.3d, at 1218.n1 That fact is crucial to our holding that this error is not enough by itself to require "the extreme sanction of exclusion." Leon, supra, at 916.


1. The fact that a Fourth Amendment violation occurred—i.e., that a search or arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. Illinois v. Gates, 462 U.S. 213, 223 (1983). Indeed, exclusion "has always been our last resort, not our first impulse," Hudson v. Michigan, 547 U.S. 586, 591 (2006), and our precedents establish important principles that constrain application of the exclusionary rule.

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In addition, the benefits of deterrence must outweigh the costs. Leon, supra, at 910. "We have never suggested that the exclusionary rule must apply in every circumstance in which it might provide marginal deterrence." [Pennsylvania Bd. of Probation and Parole v.]Scott, [524 U.S. 357] at 368. "[T]o the extent that application of the exclusionary rule could provide some incremental deterrent, that possible benefit must be weighed against [its] substantial social costs." Illinois v. Krull, 480 U.S. 340, 352-353 (1987). The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free—something that "offends basic concepts of the criminal justice system." Leon, supra, at 908. "[T]he rule's costly toll upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application." Scott, supra, at 364-365. (Other citations omitted).

These principles are reflected in the holding of [United States v.] Leon: When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted "in objectively reasonable reliance" on the subsequently invalidated search warrant. 468 U.S., at 922. We (perhaps confusingly) called this objectively reasonable reliance "good faith." Ibid., at 922, n 23. In a companion case, Massachusetts v. Sheppard, 468 U.S. 981, (1984), we held that the exclusionary rule did not apply when a warrant was invalid because a judge forgot to make "clerical corrections" to it. Id., at 991.

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2. The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct. As we said in Leon, "an assessment of the flagrancy of the police misconduct constitutes an important step in the calculus" of applying the exclusionary rule. 468 U.S., at 911. Similarly, in [Illinois v.]Krull [480 U.S. 340 (1987)] we elaborated that "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.'" 480 U.S., at 348-349, (quoting United States v. Peltier, 422 U.S. 531, 542 (1975)).

Anticipating the good-faith exception to the exclusionary rule, Judge Friendly wrote that "[t]he beneficent aim of the exclusionary rule to deter police misconduct can be sufficiently accomplished by a practice . . . outlawing evidence obtained by flagrant or deliberate violation of rights." The Bill of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev. 929, 953 (1965) (footnotes omitted); see also Brown v. Illinois, 422 U.S. 590, 610-61 (1975) (Powell, J., concurring in part) ("[T]he deterrent value of the exclusionary rule is most likely to be effective" when "official conduct was flagrantly abusive of Fourth Amendment rights").

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[F]lagrant conduct was at issue in Mapp v. Ohio, 367 U.S. 643 (1961), which overruled Wolf v. Colorado, 338 U.S. 25 (1949), and extended the exclusionary rule to the States. Officers forced open a door to Ms. Mapp's house, kept her lawyer from entering, brandished what the court concluded was a false warrant, then forced her into handcuffs and canvassed the house for obscenity. 367 U.S., at 644-645. See Friendly, supra, at 953, and n 127 ("[T]he situation in Mapp" featured a "flagrant or deliberate violation of rights"). An error that arises from nonrecurring and attenuated negligence is thus far removed from the core concerns that led us to adopt the rule in the first place. And in fact since Leon, we have never applied the rule to exclude evidence obtained in violation of the Fourth Amendment, where the police conduct was no more intentional or culpable than this.

3. To trigger the exclusionary rule, 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. As laid out in our cases, 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.

Our decision in Franks v. Delaware, 438 U.S. 154 (1978), provides an analogy. Cf. Leon, supra, at 914. In Franks, we held that police negligence in obtaining a warrant did not even rise to the level of a Fourth Amendment violation, let alone meet the more stringent test for triggering the exclusionary rule. We held that the Constitution allowed defendants, in some circumstances, "to challenge the truthfulness of factual statements made in an affidavit supporting the warrant," even after the warrant had issued. 438 U.S., at 155-156. If those false statements were necessary to the Magistrate Judge's probable-cause determination, the warrant would be "voided." Ibid. But we did not find all false statements relevant: "There must be allegations of deliberate falsehood or of reckless disregard for the truth," and "[a]llegations of negligence or innocent mistake are insufficient." Id., at 171.

Both this case and Franks concern false information provided by police. Under Franks, negligent police miscommunications in the course of acquiring a warrant do not provide a basis to rescind a warrant and render a search or arrest invalid. Here, the miscommunications occurred in a different context—after the warrant had been issued and recalled—but that fact should not require excluding the evidence obtained.

The pertinent analysis of deterrence and culpability is objective, not an "inquiry into the subjective awareness of arresting officers," Reply Brief for Petitioner 4-5. See also post, at ____, n 7, 172 L. Ed. 2d, at 515 (Ginsburg, J., dissenting). We have already held that "our good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal" in light of "all of the circumstances." Leon, 468 U.S., at 922, n 23. These circumstances frequently include a particular officer's knowledge and experience, but that does not make the test any more subjective than the one for probable cause, which looks to an officer's knowledge and experience, Ornelas v. United States, 517 U.S. 690, 699-700 (1996), but not his subjective intent, Whren v. United States, 517 U.S. 806, 812-813 (1996).

4. We do not suggest that all recordkeeping errors by the police are immune from the exclusionary rule. In this case, however, the conduct at issue was not so objectively culpable as to require exclusion. In Leon we held that "the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion." 468 U.S., at 922. The same is true when evidence is obtained in objectively reasonable reliance on a subsequently recalled warrant.

If the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would certainly be justified under our cases should such misconduct cause a Fourth Amendment violation. We said as much in Leon, explaining that an officer could not "obtain a warrant on the basis of a 'bare bones' affidavit and then rely on colleagues who are ignorant of the circumstances under which the warrant was obtained to conduct the search." Id., at 923, n 24, (citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 568 (1971)). Petitioner's fears that our decision will cause police departments to deliberately keep their officers ignorant, Brief for Petitioner 37-39, are thus unfounded.

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Petitioner's claim that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule, as they have been explained in our cases. In light of our repeated holdings that the deterrent effect of suppression must be substantial and outweigh any harm to the justice system, e.g., Leon, 468 U.S., at 909-910, we conclude that when police mistakes are the result of negligence such as that described here, rather than systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not "pay its way." Id., at 907-908, n 6. In such a case, the criminal should not "go free because the constable has blundered." People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion of the Court by Cardozo, J.).

The judgment of the Court of Appeals for the Eleventh Circuit is affirmed.

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