The Court heard oral arguments on Tuesday in Herring v. US, a case that revolves around whether or not the exclusionary rule applies in scenarios where there is an error made by the police. Plaintiff was arrested after police where mistakenly notified that a warrant was out for his arrest. The warrant had been withdrawn five months earlier but the Court’s clerk mistakenly did not update computer records to reflect the withdrawal.
The Court has long held that a mistake by the police in arresting someone can be considered probable cause if the officer in question believes he is correctly applying the law. As Justice Scalia points out, if an officer mistakenly searches someone whom he believes to have just stolen, the contents of that search can be submitted in court. The question Chief Justice Roberts and Justice Scalia have, is what substantive difference is there between that scenario and this one? Pamela Herring, counsel for Bennie Herring, argues that the difference is that a warrant is not enough to spark probable cause for a crime. The argument goes that a warrant itself does not create probable cause and that a warrant is only a reaction to probable cause that lead to its creation.
Justice Scalia has long been known to be in favor of severely curtailing the exclusionary. During arguments he took issue with Mrs. Herring’s assertion that police departments would ‘willy-nilly not keep track of warrants’ if the exclusionary rule were not in place.
Michael Dreeben spoke next, in favor of the US. He argued primarily that imposing the exclusionary rule in an isolated instance like this one would not deter future police action and is therefore not a valid application of the exclusionary rule.Justice Stevens and Ginsburg were particularly concerned with the effects that the removal of the exclusionary rule would have on police behavior.
Its hard to tell exactly how this case will be decided, but the four horsemen as well as Justice Kennedy appeared to be firmly in favor of siding with the Government. Justice Scalia has long been in favor of peeling back the Exclusionary Rule in favor of a more flexible guideline in place in most countries around the world. The exclusionary rule in the United States is considerably more restrictive of police behavior than its counterparts elsewhere in the world. Justice Kennedy seemed sufficiently convinced that there were enough safeguards in place to prevent police from abusing power in most circumstances. He specifically mentioned §1983 in a number of instances and seemed to believe it may be powerful enough to prevent police negligence.