Lest Democrats get too excited about their newfound dominance in the White House and Capitol, a recent Supreme Court decision serves to remind us that, alas, liberals still don’t call all the shots in Washington.

In a 5-4 decision, the court created a significant and dangerous exception to the exclusionary rule and encouraged future negligence and malevolence by police departments.

The case, Herring vs. United States, stemmed from a 2004 incident in Coffee County, Alabama. Police, believing they had a valid arrest warrant, searched a man named Bennie Herring and discovered an unlicensed pistol and methamphetamines.

It was later revealed that the warrant had been withdrawn five months prior to the arrest, but remained in the computer system due to a clerical error.

Mr. Herring’s lawyers contended the illegal items were the product of an invalid search and therefore inadmissible in court.
Writing for the majority, Chief Justice John Roberts states that the exclusionary rule, created to discourage unconstitutional searches, did not apply in Mr. Herring’s case because the error was made in “good faith” rather than “reckless disregard of constitutional requirements.”

A seemingly reasonable distinction, sure, but the Chief Justice’s language reveals distaste for the exclusionary rule in general and bodes ill for its future in the Roberts Court.

When Chief Justice Roberts writes that “the benefits of deterrence must outweigh the costs” of excluding evidence, he introduces a slippery value judgment that can: and will: be interpreted many different ways.

In the judicial world, where precedent means everything, conservative judges will certainly quote this ruling as they further and further weaken the Fourth Amendment as they weigh costs and benefits on their faulty ideological scale.

When defending an essential constitutional principle such as the Fourth Amendment, no cost is too high. The Fourth Amendment states, “The right of the people to be secure in their persons…against unreasonable searches and seizures shall not be violated.”

The search in question was patently unconstitutional: nobody disputes this: so the evidence must be discarded.
The constitution is tantamount, and as Justice Ruth Bader Ginsberg notes in her minority opinion, the exclusionary rule “is often the only remedy effective to redress a Fourth Amendment violation.”

Another argument made by Chief Justice Roberts concerns the deterrence value of exclusion in this case. He claims that the potential for future deterrence in this case is negligible, because the error was borne of simple neglect rather than active deceit.

Here, he is just plain wrong.

If your CORE professor rewarded sloppy, disorganized work with prizes, you would be disinclined to do your work well. In fact, you might purposely rough up your papers a little bit at the end just for good measure.

Similarly, this case gives police departments an incentive to be just a little bit sloppy in their record-keeping, in the hopes of winning a “prize” like Bennie Herring.

Ultimately, this case boils down to a simple question: which decision creates a greater danger? Does Bernie Herring with pistol in pocket and meth in bloodstream present a threat to society?

Probably.

Does the continued erosion of our individual constitutional liberties to the benefit of police forces present a threat to society?

Absolutely.