MICHELE NORRIS, host:
From NPR News, this is All Things Considered. I'm Michele Norris.
MELISSA BLOCK, host:
And I'm Melissa Block. Now to a ruling today from the Supreme Court. The Court split five to four and ruled that when a person is wrongly arrested because of a record-keeping error, any evidence found at the time of the arrest can still be used to prosecute the defendant. NPR's Nina Totenberg explains.
NINA TOTENBERG: Nearly a century ago, the Supreme Court created a rule that excludes from trial evidence that is illegally obtained. The so-called exclusionary rule was created to ensure that there was no premium for police in violating an individual's constitutional right to be safe from unreasonable searches. Thus, in most instances if police conduct an illegal search, the evidence obtained cannot be used for a prosecution.
Critics of the rule have long lamented that because the constable errs, the criminal goes free, and three years ago the Supreme Court's four most conservative justices said they were willing to get rid of the exclusionary rule. The four, however, were one vote shy of a majority. So today there was a five-justice majority for a more modest approach undercutting one aspect of the exclusionary rule. For the first time, the Court said that when police record-keeping is erroneous, the evidence may still be used to prosecute.
The facts are these: Bennie Dean Herring had a history with an Alabama policeman named Mark Anderson. Herring had told the local DA that Anderson had been involved in the killing of a local teenager. The policeman had visited Herring trying to get him to drop the accusation. And weeks later when Herring was at the sheriff's department to retrieve his belongings from an impounded vehicle, the policeman asked the department's warrant clerk to see if there were any outstanding warrants for Herring's arrest. The answer was no.
Anderson then asked the clerk to check the neighboring county. This time the answer was yes, whereupon Officer Anderson arrested Herring, searched him, and found methamphetamine residue in his pocket and a pistol which because of Herring's previous criminal record was illegal for him to possess. Within minutes, though, it turned out that there was in fact no outstanding arrest warrant from Herring. It had been withdrawn five months earlier and the database had not been updated. So, the arrest was illegal and therefore so was the search. But could the evidence still be used against Herring?
The lower court said yes, and today the Supreme Court agreed. Writing for the five-justice majority, Chief Justice John Roberts said, in essence, that a police screw-up in record-keeping does not justify suppressing otherwise valid evidence. The exclusionary rule, he said, serves to deter deliberate reckless or grossly negligent conduct or in some cases systemic negligence. The error in this case, he said, did not rise to that level, since Officer Anderson thought he was conducting a search incident to a valid arrest warrant. Stanford law professor Pam Karlan, who represented Herring, sees the Court's ruling as limited but...
Professor PAM KARLAN (Stanford Law School): The handwriting on the wall for the future is the Supreme Court is not very committed to the exclusionary rule, and when it can find ways of getting around the exclusionary rule, there seemed to be five justices who are prepared to give the rule lip service and then whittle it down to a doorstop. And I think that's actually a characteristic, in some ways, an emerging characteristic of the Roberts court is there are a lot of areas where they are not overruling the precedents that are on the books, but they are narrowing them down so that they are, you know, to quote an old Supreme Court case, like "railroad tickets good for this train and this day only."
TOTENBERG: George Washington University law professor Stephen Saltzburg, author of a leading criminal law textbook, agrees.
Professor STEPHEN SALTZBURG (Law, George Washington University): The door is open for all arguments that police behavior, while it was mistaken or it was wrong, is not so egregious as to warrant exclusion. I think that's where we are, that the battle will be fought on how bad the police behavior was. And you see a lot of that in Chief Justice Roberts' opinion.
TOTENBERG: Joining Roberts in the majority were Justices Scalia, Thomas, Alito and Kennedy. Writing for the four dissenters, Justice Ruth Bader Ginsburg said that in the modern era of interconnected databases, there is little recourse for erroneous records except through constitutional protections. The result of today's ruling, she said, would likely be more innocent people wrongly arrested, handcuffed, humiliated, and searched. This, she said, is evocative of the unlimited search powers that so outraged the founders of the republic that they adopted the Fourth Amendment requiring judicial warrants and banning unreasonable searches. Nina Totenberg, NPR News, Washington.