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Why not err on the side of caution?

Drlogo11_2 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.

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Why not err on the side of caution?

Last week the U.S. Supreme Court granted certiorari in Herring v. United States, 07- 513.

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?

--Nicole Black is, among other things, a Rochester, NY DWI defense lawyer, and is of counsel to Fiandach & Fiandach, one of the largest and most experienced DWI defense firms in New York State.  She also co-authors the Thomson-West book Criminal Law in New York and writes a weekly column, "Legal Currents", for The Daily Record.

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