Gregory D.

Lee

Read Greg's bio and previous columns here

February 20, 2009

In Herring v. United States, Supreme Court Has Liberals Screaming

The U.S. Supreme Court’s 5-4 decision in Herring v. United States has liberals in a tizzy. A Los Angeles Times editorial said the decision concerning the exclusionary rule amounted to “chipping away at the Constitution,” so that tells me it was the right decision.

The exclusionary rule is a court invention that excludes “illegal” evidence during a criminal trial. The Court’s reasoning for the ruling was to punish police officers for “illegally” gathering evidence in order to deter such misconduct in the future. The 1914 ruling initially applied to only federal trials and later extended to state courts in 1961. The exclusionary rule usually applies to search and seizure issues stemming from the violation of the Fourth Amendment to the Constitution, but it also applies to confessions.

Many law enforcement officials argue that excluding any evidence denies juries critical information they need to determine a defendant’s guilt or innocence. If the police obtain evidence “illegally,” then discipline the individual officer(s) involved, not society, by allowing a guilty person to escape punishment and victimize others.

Liberals, on the other hand, hate to see anyone but conservatives go to jail. They embrace the exclusionary rule and call it visionary, enlightened and a reaffirmation of the principles of the Constitution.

In Herring, the issue was about simple human error on the part of a warrant clerk for an Alabama county sheriff’s office, not devious police behavior to frame an otherwise innocent man. A sheriff’s detective learned from an adjoining county sheriff’s clerk that Herring had an outstanding warrant for his arrest. When the detective located Herring driving his truck in his county, he pulled him over and arrested him for the outstanding warrant. He searched Herring’s person and pickup truck, incidental to his arrest (which is completely normal and legal), and found a handgun. Methamphetamine was also found in one of Herring’s pockets. By the time the detective returned to his office with Herring, he learned the arrest warrant was invalid and was supposed to have been withdrawn from the computer system five months earlier, but it never was.

So what’s a detective to do? Let Herring go? Should the Sheriff issue a written apology to Herring, and return the “illegally seized” gun and dope to him? I’m sure some liberals think so.

The detective referred the matter to the feds, who indicted Herring for being an ex-con with a gun and possession of drugs. He appealed his conviction to the 11th Circuit Court of Appeals, which upheld the conviction. Herring then appealed to the U.S. Supreme Court.

The amazing thing to me is that all four liberal Supreme Court Justices, that despite the fact there was clearly no “police misconduct,” still felt compelled to side with Herring. Even the moderate on the court, Justice Kennedy, exhibited common sense in this ruling.

This case demonstrates the reason Justices should be strict constructionists who follow the Constitution, as opposed to Justices who make law from the bench.

Arguably one of the most liberal Justices on the Court, Justice Ruth Ginsburg, wrote in the dissenting opinion, “the police lacked probable cause to believe he (Herring) was engaged in criminal activity. The arrest and ensuing search therefore violated Herring’s Fourth Amendment right to be secure . . . against ‘unreasonable searches and seizures.’”

Fortunately for all of us, five of the Justices recognized that the sheriff’s detective didn’t need probable cause to arrest Herring because he honestly believed a valid arrest warrant existed. Herring’s luck finally ran out when the Justices made the right decision. 

Justice Ginsburg is now recuperating after surgery for pancreatic cancer and her future on the Court is uncertain. President Obama’s Supreme Court nominee will probably make her look like Rush Limbaugh.

Gregory D. Lee is a retired DEA Supervisory Special Agent and author of Practical Criminal Evidence. You can reach him through his web site: www.gregorydlee.com. 

© 2009 North Star Writers Group. May not be republished without permission.

This is Column # GL065. Request permission to publish here.