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Univ. of San Diego School of Law

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Wednesday, January 14, 2009

More on the Herring Case

As Brooks posted below, the U.S. Supreme Court decided Herring v. U.S. today, continuing on its path of narrowing the Fourth Amendment's exclusionary rule.  A couple of points jumped out at me as I read the opinion.

First, the scope of the opinion is unclear.  The general tenor of the opinion is that mere negligence on the part of the police will rarely if ever result in the exclusion of evidence discovered as a result.  However, the Court hedges, both at the beginning and end of its opinion, potentially narrowing the scope of the ruling to cover only those cases where the negligence occurred at some unspecified temporal distance from the ultimate Fourth Amendment violation.  Thus, the Court wrote that the error here "was the result of isolated negligence attenuated from the arrest," slip op. at 1 (emphasis added), and concluded that the exclusionary rule does not apply "when police mistakes are the result of negligence such as that described here."  Slip op. at 12 (emphasis added).  Thus, the case leaves open the question of the application of the exclusionary rule where the Fourth Amendment violation results from police negligence by the arresting officer him- or herself.

Second, although the U.S. conceded there was a Fourth Amendment violation here, the Court did not decide the issue and seems to imply that the answer is not so clear cut.  However, it is difficult for me to see how a negligent mistake by a law enforcement official resulting in an arrest can be anything other than a Fourth Amendment violation.  [Mike Mannheimer]

http://lawprofessors.typepad.com/crimprof_blog/2009/01/more-on-the-her.html

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