This week's Legal Currents column, which is published in The Daily Record, is entitled " Why not err on the side of caution?" The article is set forth in full below and a pdf of the article can be found here.
My past Legal Currents articles can be accessed here.
Why not err on the side of caution?
Last week the U.S. Supreme Court granted
certiorari in Herring v. United States, 07-
At issue in Herring is whether the exclusionary
rule should apply when a suspect’s arrest
was based on erroneous information from
another law enforcement officer.
The court considered a similar issue in Arizona v. Evans,
514 U.S. 1 (1995). In Evans, marijuana was discovered on the
defendant during the execution of what the arresting officer
mistakenly believed was a valid arrest warrant. The court
concluded the marijuana was not subject to suppression
even though the warrant, which had been quashed,
remained in the computer system due to a court clerk’s clerical
error: “If court employees were re-sponsible for the erroneous
computer re-cord, the exclusion of evidence at trial
would not sufficiently deter future errors so as to warrant
such a severe sanction. … Because court clerks are not
adjuncts to the law enforcement team engaged in the often
competitive enterprise of ferreting out crime … they have
no stake in the outcome of particular criminal prosecutions.”
In so holding, the court left open the possibility that the
exclusionary rule might apply to evidence discovered due to
an error caused by a law enforcement officer, as was the case
in Herring, where a member of the Sheriff’s Department,
rather than a court clerk, failed to modify the computer
records to indicate the arrest warrant was recalled.
I suspect the current court will extend the Evans holding
and conclude the exclusionary rule is inapplicable under these
facts as well.
To do so would be a mistake.
As Justice Ruth Bader Ginsberg astutely noted in her dissentin Evans, society’s newfound reliance on computers
and technological advancements presents
unusual issues for law enforcement: “Widespread
reliance on computers to store and convey
information generates, along with manifold
benefits, new possibilities of error, due to both
computer malfunctions and operator mistakes.
… [C]omputerization greatly amplifies an error’s
effect, and correspondingly intensifies the need
for prompt correction; for inaccurate data can
infect not only one agency, but the many agencies
that share access to the database.”
Justice Ginsberg’s insight from 1995 rings all
the more true in our post-9/11 era as our government
mines and collects vast amounts of data regarding its
citizens, both from public and private sources.
The more data is collected, the more time and money will be
required to manage the data. It is unlikely, however, that sufficient
resources will be allotted for regulating, reviewing and
updating the massive databases used by law enforcement
agencies in the absence of strong incentives such as the deterrent
effect of the exclusionary rule.
Should the court carve out a “computer error” exception to
the exclusionary rule, the possibility of perpetual arrest warrants
is not all that farfetched. Realistically, what incentive
would there be to promptly remove recalled arrest warrants
from government databases if any evidence obtained as a
result of a mistakenly executed, recalled warrant could be
used at trial?
To err is human. We all know that. But when one of our
most fundamental constitutional rights is at stake— freedom
from unlawful governmental intrusion — shouldn’t we err on
the side of caution?