Searches and seizures

Back in 2004, Bennie D. Herring drove to the Coffee County, Ala., sheriff's office to check on an impounded truck. Upon Herring's arrival, Investigator Mark Anderson asked the warrant clerk to check for any outstanding warrants. Mr. Anderson was told there was an outstanding felony warrant for Herring's arrest, issued by the Dale County Sheriff's Department.

Mr. Anderson and another officer thereupon arrested Herring, searching him and finding methamphetamine and an unloaded handgun.

Only a few minutes later, the Dale County clerk informed the Coffee County department that the warrant showing up on their computers was out of date. The warrant had been recalled.

Prior to trial, Herring attempted to invoke the exclusionary rule to have the drug evidence suppressed, claiming that the arrest was unlawful. That motion was denied by a federal court.

There's a perfectly good "real world" reason for the exclusionary rule, in which the courts have held for a century that police can't use evidence obtained from an improper, unconstitutional, warrantless search. If police could use such "poisoned" evidence to win convictions despite violating suspects' rights, there'd be no real incentive for them to respect those rights. The Fourth Amendment rights intended to keep us safe from unreasonable, warrantless searches would essentially disappear.

Herring's lawyers appealed to the 11th U.S. Circuit Court of Appeals, which denied the appeal, citing the "good faith" exception to the exclusionary rule created by United States v. Leon. The evidence was admissible because the officers and their department were not the cause of the arrest warrant error, the appeals court held.

Last fall, the Herring case reached the U.S. Supreme Court.

On Wednesday, in a tight 5-4 decision, the "police state" wing of the high court finished the job of carving out yet another exception to the valuable exclusionary rule.

"To trigger the exclusionary rule," Chief Justice John Roberts wrote for the majority, "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system."

The problem with that, as pointed out by Justice Ruth Bader Ginsburg in a thoughtful dissent, is that it creates no incentive -- as a matter of fact, it creates a disincentive -- for police agencies to keep their records up to date.

We see here that conservatives as well as bleeding hearts can succumb to the temptation to whittle down constitutional protections, in this case arguing the benefit to "law and order." Things do not get more lawful or more orderly when greater numbers of citizens who have committed no violent offense have to worry about being searched, seized, tried and imprisoned because a computer file wasn't updated.

Herring is probably not an admirable character. But make no mistake: By shrugging away the rights of Bennie D. Herring, the court continues the ongoing erosion of constitutional guarantees intended to protect us all.