Yesterday's Supreme Court ruling in Herring v. U.S, <http://www.supremecourtus.gov/opinions/08pdf/07-513.pdf> provides yet another opportunity for us to put a bad ruling in perspective. Like most recent 4th Amendment cases decided by the Court, Herring is an unfortunate finding, but it's not going to change our advice on handling police encounters.

Bennie Dean Herring was known to local police, who spotted him at the impound lot where he was retrieving an item from his impounded truck. An officer confirmed that Herring had a warrant in a neighboring county and arrested him, in the process discovering methamphetamine and a gun. Moments later, the officer learned that the warrant was erroneous, thus the arrest and subsequent search were invalid.

The Supreme Court found that because officers legitimately believed a warrant existed for Herring's arrest, their actions were justified and not subject to the exclusionary rule, which prohibits the use of illegally obtained evidence. This is called the "good faith" doctrine, wherein police actions are upheld if officers believed they were acting legally (even if they were not).

The "good faith" doctrine is nothing new, so the Court's decision isn't particularly shocking. The Court argues that the exclusionary rule is intended to deter police misconduct and shouldn't be applied here because the officers didn't willfully do anything wrong. The dissent argues, and I agree, that the exclusionary rule is a perfectly appropriate means of deterring police agencies from keeping bad records that cause illegal arrests. If there's no penalty for using bad information, then police have no incentive to keep their books in order. Worse yet, I could envision situations in which police manufacture "good faith" circumstances by preemptively withholding relevant facts from the arresting officers.

The exclusionary rule is vital to the interests of justice and we regret any ruling that reduces the citizen's protection against illegally obtained evidence. That said, we hope the public will recognize that today's decision is based on a specific set of circumstances and does not mean that police can now perform illegal arrests at will. The 4th Amendment continues to protect citizens against illegal searches, particularly in common scenarios such as searches that follow a refusal of consent. There's no question that the Supreme Court is disturbingly reluctant to uphold 4th Amendment rights, but our right against unreasonable searches and seizures is still relevant in the vast majority of common police encounters. Knowing these rights remains your best and only defense when confronted by law enforcement.

Take care,

Scott Morgan
Associate Director
Flex Your Rights

P.S. Flex Your Rights is the only organization focused solely on defending the 4th Amendment and teaching citizens to understand their rights during police encounters. If you support our efforts, please consider making a one-time tax-deductible donation today. As you know, we can't do this important work without your support.
<http://www.flexyourrights.org/donate>