Earlier this morning, the Supreme Court held in Herring v. United States that non-systematic negligence by police officers fall within the scope of the good-faith exception to the exclusionary rule. I wrote about the case after oral arguments here.

The decision of the conservative majority to significantly expand the scope of the good-faith exception to the Court signals a major paradigm shift in the jurisprudence of the exclusionary rule. Chief Justice Roberts’ majority opinion reaffirmed the idea that “the deterrent effect of suppression must be substantial and outweigh any harm to the justice system.” More importantly, the majority effectively let lower courts know that the new court, the Roberts court, is going to scale back on the exclusionary rule and slowly expand the list of behavior that qualifies for the good-faith exception. As such, I find it very likely that within the next few months we will see Herring cited frequently by lower courts to justify the inclusion of evidence obtained by simple, non-systematic negligence from police officers in the field.

Over at SCOTUSblog, Tom Goldstein argues that the decision is a broad one but mentions that the court’s use of the phrase ‘attenuated from the arrest’ may limit the ultimate scope of this opinion.

I agree, but I also believe that lower courts will use Herring to justify to exceptions the exclusionary rule. While the Court’s decision may have been somewhat narrowly focused on the facts of the case, its hard to imagine them using more broad language in explaining their reasoning. The court also explained in no uncertain words that “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.” Reminders like these are likely to send a clear signal to the lower courts that even though the court didn’t explicitly expand the good-faith exception, they are willing to accept more broad exceptions.

“Petitioner’s claim”, writes the Chief Justice, “that police negligence automatically triggers suppression cannot be squared with the principles underlying the exclusionary rule.” The Chief Justice could hardly be more clear- the exclusionary rule is going to get some serious remodeling in the next few years.

At the Volokh Conspiracy, Orin Kerr mentions why he thinks the decision is a narrow one.

In particular, I don’t see it as suggesting a general good faith exception for police conduct. Such a position would be an extraordinary shift in Fourth Amendment law that would effectively overrule a ton of cases. That issue wasn’t raised by the briefs or argument, however, so I don’t see it as natural to read such a conclusion into the holding that pretty much just answered the question presented in the briefs. I think that’s why the dissenters didn’t sound the alarm: The decision was quite narrow.

I disagree. I think think the majority went well beyond the barriers of the questions presented to strike at the exclusionary rule. Their rhetoric was more expansive than necessary to rule on the fact-scenario at hand and the court’s decision has made future expansion of the good-faith exception almost inevitable. In the same way that cases like Eisenstadt v. Baird and Griswold v. Connecticut made the decision in Roe v. Wade a foregone conclusion, today’s decision in Herring v. United States signals a major shift in the leading paradigm of the Supreme Court and, while the decision itself may not be explicit, the logic and rhetoric of the decision suggest a major revision of the exclusionary rule in the coming years.


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