Myth or Reality?

The police made a mistake; the evidence has to go out the window.

Television shows like “Law and Order” all too often show seasoned detectives complaining about how some “liberal judge” threw out key evidence resulting in the release of a dangerous criminal. The detectives bemoan the fact that under the “Exclusionary Rule” illegally seized evidence cannot be used in court no matter how relevant to the case.  How valid are their complaints? Are thousands of criminals going free on “technicalities” because the police goofed up?

Research shows that in reality the Supreme Court is giving police more latitude in their ability to seize evidence. Take for instance, case of Herring v. U.S. which was decided in 2009. Bennie Dean Herring had been searched after the police were informed that there was an outstanding warrant against him on a felony charge. The search turned up methamphetamine and a pistol. Soon after, it was discovered that the warrant had actually been withdrawn five months earlier and had only been left in the computer system by mistake. One might think that, under the exclusionary rule, the evidence would be excluded and  Herring’s conviction vacated because there was no outstanding warrant to support a search. But the majority of the Supreme Court thought otherwise when it ruled that “When police mistakes leading to an unlawful search are the result of isolated negligence attenuated from the search, rather than systemic error or reckless disregard of constitutional requirements, the exclusionary rule does not apply.” The court ruled that the errors in the Herring case did not amount to deliberate police misconduct that should trigger the exclusionary rule and Bennie Herring’s conviction was allowed to stand.

The Herring case is but one instance in which the Supreme Court has given police more latitude to search suspects without a warrant, helping to circumvent the Rule. So while the public may worry about numerous dangerous criminals “beating the rap” on a legal technicality, their fear may be misplaced.

Writing Assignment: Do you believe that evidence seized by the police in error should be excluded from trial or would it be better to keep the evidence but punish police officers for violating a suspect’s rights, for example, with a fine or other economic sanction?