In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court adopted a narrow, “good-faith exception to the Fourth Amendment exclusionary rule” for “reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate.” Later cases have applied this exception to a police officer’s “reasonable reliance” in making arrests or executing searches on the basis of information or authorization from courts or other government officials. 1/ But if the exception is not to swallow the rule, the Leon exception should not apply when the police department conducting the unreasonable search or seizure is itself the source of the mistake that appears to justify the search. In this situation, it can hardly be said that “there is no police illegality and thus nothing to deter.” 2/
In People v. Robinson, 47 Cal. 4th 1104 (2009), however, the Supreme Court of California unanimously adopted this radical expansion of Leon. And it did so in a case in which it did not need to address the issue. In 1999, when Paul Eugene Robinson “was in custody at [a detention center] for two misdemeanor convictions and awaiting transfer to state prison based on a parole revocation [for a] burglary,” California’s DNA database law went into effect. Although Robinson’s crimes did not qualify him for inclusion in the new database, “an unknown person in the Center‟s records department . . . mistakenly identified [him] as a prisoner with a qualifying offense . . . . As a result of that mistake, a [blood] sample . . . was drawn . . . .” The California Department of Justice Laboratory analyzed the sample, uploaded the DNA profile, and got a cold hit to the man wanted on a “John Doe” DNA warrant for “five felony sexual offenses, all perpetrated against Deborah L. on August 25, 1994.” A jury convicted Robinson of these offenses, the California Court of Appeal affirmed, and the state supreme court granted review.
The California Supreme Court held that an arrest warrant for “John Doe, unknown male” with a particular 13-locus STR profile was valid and thus tolled the statute of limitations on rape prosecutions. It held that the erroneous extraction of blood violated state law, but not the Fourth Amendment. For good measure, it added that even if there had been a constitutional violation, it would not have mattered under the Leon good-faith exception to the exclusionary rule. Although there is reason to doubt the Court’s conclusion that the statutorily unauthorized seizure of blood was consistent with the Fourth Amendment, my target here is the pointed rejection of the exclusionary rule. The United States Supreme Court has never approved the admission of evidence seized in violation of the Fourth Amendment by a police agency relying on Its own, mistaken information, and no court should do so.
The Robinson Court relied largely on the recent–and controversial–decision in Herring v. United States, 555 U. S. __ (2009). 3/ In Herring, police officers arrested and searched a suspect and his vehicle. The search uncovered contraband and an illegally possessed weapon. The officers lacked probable cause to detain or search the suspect; however, a police clerk in a neighboring county had advised them that a current warrant called for the suspect’s arrest. In fact, the court had recalled the warrant. The police database did not reflect this fact. Regarding the false report as a single act of “nonrecurring and attenuated negligence,” a bare majority of the Court held that the application of the exclusionary rule was not warranted. Four Justices objected that the extension of Leon to acts of distinct but cooperating police agencies was “no occasion to further erode the exclusionary rule.” 4/
Despite the division within the Court over Herring, one thing is clear. In every Supreme Court case that has treated an officer’s reliance of erroneous information as grounds for suspending the exclusionary rule, the information has come from an unrelated and apparently reliable governmental source. 5/ In these narrow circumstances, courts may balance “the culpability of the police [against] the potential of exclusion to deter wrongful police conduct.” 6/ Within these boundaries, ordinary and “isolated negligence” normally is not enough to warrant exclusion. 7/
To apply this balancing test outside these confines, however, would open every case of a Fourth Amendment violation arising from inaccurate information supplied by fellow police officials to complicated litigation over how the balance should be struck in light of the facts of the case. Courts would need to draw a difficult line between simple negligence and “deliberate, reckless, or grossly negligent conduct,” or between “isolated” negligence and “recurring or systematic negligence.” 8/ Being unable to predict the outcome of a Fourth Amendment violation, police would have sharply reduced incentives to comply with the amendment and to seek judicial warrants. They could be tempted to avoid the dictates of the amendment by dividing up investigations so that each officer can rely on a report from a colleague rather than pursue the investigation in a more direct fashion. The resulting regime would benefit neither the public, the police, nor the courts.
The novel theory that a police agency may rely on its own negligence to avoid the exclusionary rule deviates from Herring‘s express requirement that the negligence be not merely “isolated” (itself a sharply contested proposition in Robinson) but “attenuated.” 9/ As we have seen, in Herring and in every other case applying Leon to admit evidence, the negligent misstatement was attenuated in the sense that a police officer reasonably relied on plausible information from an independent government agency. In Robinson, however, the correctional facility misinformed itself. To allow such nonattenuated misconduct to escape the exclusionary rule would open the courthouse door to widespread, negligent police misconduct in violation of the Fourth Amendment. 10/
Robinson is not the only star in the expanding university of Herring. See, e.g., United States v. Song Ja Cha, No. 09-10147, 2010 WL 775238 (9th Cir. Mar. 9, 2010) (assuming, without analysis, that Herring applies to an unreasonably long, warrantless seizure of a residence to allow officers to obtain a warrant). The Supreme Court needs to arrest this inflation by explicitly confining the Leon exception to reasonable reliance by the police on generally accurate information or judgments from unrelated government officials. A police agency should not be permitted to rely on its own, negligent mistakes to escape the century-old rule of Weeks v. United States, 232 U. S. 383, 398 (1914), that “forbids the use of improperly obtained evidence at trial.” 11/
1. Arizona v. Evans, 514 U.S. 1 (1995) (reliance on court clerk); Illinois v. Krull, 480 U. S. 340 (1987) (reliance on state statute), Herring v. United States, 555 U. S. __ (2009) (reliance on police clerk).
2. Leon, 468 U.S. at __.
3. See generally Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, Ohio St. J. Crim. L. 463 (2009); Wayne R. Lafave, The Smell of Herring, 99 J. Crim. L. & Criminology 757 (2009); The Supreme Court 2008 Term, 123 Harv. L. Rev. 153 (2009) (criticizing Herring).
4. 555 U.S. at __, __ (concurring opinion of Ginsburg, Stevens, Souter, & Breyer, JJ.).
5. See Leon (a judicial officer); Krull (a legislature whose enactments enjoy a presumption of constitutionality); Evans (judicial staff); Herring (a records clerk at another police department).
6. Herring, 555 U. S. at __.
7. Id. at __.
8. Id. at __.
9. Id. at __.
10. See Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463, 463 (2009) (discarding the attenuation requirement “would leave most violations of the Fourth Amendment without a remedy [and] would create a regime in which courts would make most of their Fourth Amendment rulings in dictum if they decided Fourth Amendment questions at all.”).
11. Herring, 555. U.S. at __,