(Slip Opinion) OCTOBER TERM, 2008 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HERRING v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 07–513. Argued October 7, 2008—Decided January 14, 2009
Officers in Coffee County arrested petitioner Herring based on a war
rant listed in neighboring Dale County’s database. A search incident
to that arrest yielded drugs and a gun. It was then revealed that the
warrant had been recalled months earlier, though this information
had never been entered into the database. Herring was indicted on
federal gun and drug possession charges and moved to suppress the
evidence on the ground that his initial arrest had been illegal. As
suming that there was a Fourth Amendment violation, the District
Court concluded that the exclusionary rule did not apply and denied
the motion to suppress. The Eleventh Circuit affirmed, finding that
the arresting officers were innocent of any wrongdoing, and that Dale
County’s failure to update the records was merely negligent. The
court therefore concluded that the benefit of suppression would be
marginal or nonexistent and that the evidence was admissible under
the good-faith rule of United States v. Leon, 468 U. S. 897.
Held: When police mistakes leading to an unlawful search are the re
sult of isolated negligence attenuated from the search, rather than
systemic error or reckless disregard of constitutional requirements,
the exclusionary rule does not apply. Pp. 4–13.
(a) The fact that a search or arrest was unreasonable does not nec
essarily mean that the exclusionary rule applies. Illinois v. Gates,
462 U. S. 213, 223. The rule is not an individual right and applies
only where its deterrent effect outweighs the substantial cost of let
ting guilty and possibly dangerous defendants go free. Leon, 468
U. S., at 908–909. For example, it does not apply if police acted “in
objectively reasonable reliance” on an invalid warrant. Id., at 922.
In applying Leon’s good-faith rule to police who reasonably relied on
mistaken information in a court’s database that an arrest warrant
2 HERRING v. UNITED STATES
Syllabus
was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left
unresolved the issue confronted here: whether evidence should be
suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7.
(b) The extent to which the exclusionary rule is justified by its de
terrent effect varies with the degree of law enforcement culpability.
See, e.g., Leon, supra, at 911. Indeed, the abuses that gave rise to the
rule featured intentional conduct that was patently unconstitutional.
See, e.g., Weeks v. United States, 232 U. S 383. An error arising from
nonrecurring and attenuated negligence is far removed from the core
concerns that led to the rule’s adoption. Pp. 7–9.
(c) To trigger the exclusionary rule, police conduct must be suffi
ciently deliberate that exclusion can meaningfully deter it, and suffi
ciently culpable that such deterrence is worth the price paid by the
justice system. The pertinent analysis is objective, not an inquiry
into the arresting officers’ subjective awareness. See, e.g., Leon, su
pra, at 922, n. 23. Pp. 9–11.
(d) The conduct here was not so objectively culpable as to require
exclusion. The marginal benefits that might follow from suppressing
evidence obtained in these circumstances cannot justify the substan
tial costs of exclusion. Leon, supra, at 922. Pp. 11–13.
492 F. 3d 1212, affirmed.
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,
KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissent
ing opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.
BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.
Cite as: 555 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
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ington, D. C. 20543, of any typographical or other formal errors, in order
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SUPREME COURT OF THE UNITED STATES
_________________
No. 07–513
_________________
BENNIE DEAN HERRING, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 14, 2009]
CHIEF JUSTICE ROBERTS delivered the opinion of the
Court.
The Fourth Amendment forbids “unreasonable searches
and seizures,” and this usually requires the police to have
probable cause or a warrant before making an arrest.
What if an officer reasonably believes there is an out
standing arrest warrant, but that belief turns out to be
wrong because of a negligent bookkeeping error by an
other police employee? The parties here agree that the
ensuing arrest is still a violation of the Fourth Amend
ment, but dispute whether contraband found during a
search incident to that arrest must be excluded in a later
prosecution.
Our cases establish that such suppression is not an
automatic consequence of a Fourth Amendment violation.
Instead, the question turns on the culpability of the police
and the potential of exclusion to deter wrongful police
conduct. Here the error was the result of isolated negli
gence attenuated from the arrest. We hold that in these
circumstances the jury should not be barred from consid
ering all the evidence.
2 HERRING v. UNITED STATES
Opinion of the Court
I
On July 7, 2004, Investigator Mark Anderson learned
that Bennie Dean Herring had driven to the Coffee County
Sheriff’s Department to retrieve something from his im
pounded truck. Herring was no stranger to law enforce
ment, and Anderson asked the county’s warrant clerk,
Sandy Pope, to check for any outstanding warrants for
Herring’s arrest. When she found none, Anderson asked
Pope to check with Sharon Morgan, her counterpart in
neighboring Dale County. After checking Dale County’s
computer database, Morgan replied that there was an
active arrest warrant for Herring’s failure to appear on a
felony charge. Pope relayed the information to Anderson
and asked Morgan to fax over a copy of the warrant as
confirmation. Anderson and a deputy followed Herring as
he left the impound lot, pulled him over, and arrested him.
A search incident to the arrest revealed methampheta
mine in Herring’s pocket, and a pistol (which as a felon he
could not possess) in his vehicle. App. 17–23.
There had, however, been a mistake about the warrant.
The Dale County sheriff’s computer records are supposed
to correspond to actual arrest warrants, which the office
also maintains. But when Morgan went to the files to
retrieve the actual warrant to fax to Pope, Morgan was
unable to find it. She called a court clerk and learned that
the warrant had been recalled five months earlier. Nor
mally when a warrant is recalled the court clerk’s office or
a judge’s chambers calls Morgan, who enters the informa
tion in the sheriff’s computer database and disposes of the
physical copy. For whatever reason, the information about
the recall of the warrant for Herring did not appear in the
database. Morgan immediately called Pope to alert her to
the mixup, and Pope contacted Anderson over a secure
radio. This all unfolded in 10 to 15 minutes, but Herring
had already been arrested and found with the gun and
drugs, just a few hundred yards from the sheriff’s office.
Cite as: 555 U. S. ____ (2009) 3
Opinion of the Court
Id., at 26, 35–42, 54–55.
Herring was indicted in the District Court for the Mid
dle District of Alabama for illegally possessing the gun
and drugs, violations of 18 U. S. C. §922(g)(1) and 21
U. S. C. §844(a). He moved to suppress the evidence on
the ground that his initial arrest had been illegal because
the warrant had been rescinded. The Magistrate Judge
recommended denying the motion because the arresting
officers had acted in a good-faith belief that the warrant
was still outstanding. Thus, even if there were a Fourth
Amendment violation, there was “no reason to believe that
application of the exclusionary rule here would deter the
occurrence of any future mistakes.” App. 70. The District
Court adopted the Magistrate Judge’s recommendation,
451 F. Supp. 2d 1290 (2005), and the Court of Appeals for
the Eleventh Circuit affirmed, 492 F. 3d 1212 (2007).
The Eleventh Circuit found that the arresting officers in
Coffee County “were entirely innocent of any wrongdoing
or carelessness.” id., at 1218. The court assumed that
whoever failed to update the Dale County sheriff’s records
was also a law enforcement official, but noted that “the
conduct in question [wa]s a negligent failure to act, not a
deliberate or tactical choice to act.” Ibid. Because the
error was merely negligent and attenuated from the ar
rest, the Eleventh Circuit concluded that the benefit of
suppressing the evidence “would be marginal or nonexis
tent,” ibid. (internal quotation marks omitted), and the
evidence was therefore admissible under the good-faith
rule of United States v. Leon, 468 U. S. 897 (1984).
Other courts have required exclusion of evidence ob
tained through similar police errors, e.g., Hoay v. State,
348 Ark. 80, 86–87, 71 S. W. 3d 573, 577 (2002), so we
granted Herring’s petition for certiorari to resolve the
conflict, 552 U. S. ___ (2008). We now affirm the Eleventh
Circuit’s judgment.
4 HERRING v. UNITED STATES
Opinion of the Court
II
When a probable-cause determination was based on
reasonable but mistaken assumptions, the person sub
jected to a search or seizure has not necessarily been the
victim of a constitutional violation. The very phrase
“probable cause” confirms that the Fourth Amendment
does not demand all possible precision. And whether the
error can be traced to a mistake by a state actor or some
other source may bear on the analysis. For purposes of
deciding this case, however, we accept the parties’ as
sumption that there was a Fourth Amendment violation.
The issue is whether the exclusionary rule should be
applied.
A
The Fourth Amendment protects “[t]he right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures,” but
“contains no provision expressly precluding the use of
evidence obtained in violation of its commands,” Arizona v.
Evans, 514 U. S. 1, 10 (1995). Nonetheless, our decisions
establish an exclusionary rule that, when applicable,
forbids the use of improperly obtained evidence at trial.
See, e.g., Weeks v. United States, 232 U. S. 383, 398 (1914).
We have stated that this judicially created rule is “de
signed to safeguard Fourth Amendment rights generally
through its deterrent effect.” United States v. Calandra,
414 U. S. 338, 348 (1974).
In analyzing the applicability of the rule, Leon admon
ished that we must consider the actions of all the police
officers involved. 468 U. S., at 923, n. 24 (“It is necessary
to consider the objective reasonableness, not only of the
officers who eventually executed a warrant, but also of the
officers who originally obtained it or who provided infor
mation material to the probable-cause determination”).
The Coffee County officers did nothing improper. Indeed,
Cite as: 555 U. S. ____ (2009) 5
Opinion of the Court
the error was noticed so quickly because Coffee County
requested a faxed confirmation of the warrant.
The Eleventh Circuit concluded, however, that some
body in Dale County should have updated the computer
database to reflect the recall of the arrest warrant. The
court also concluded that this error was negligent, but did
not find it to be reckless or deliberate. 492 F. 3d, at 1218.1
That fact is crucial to our holding that this error is not
enough by itself to require “the extreme sanction of exclu
sion.” Leon, supra, at 916.
B
1. The fact that a Fourth Amendment violation oc
curred—i.e., that a search or arrest was unreasonable—
does not necessarily mean that the exclusionary rule
applies. Illinois v. Gates, 462 U. S. 213, 223 (1983). In
deed, exclusion “has always been our last resort, not our
first impulse,” Hudson v. Michigan, 547 U. S. 586, 591
(2006), and our precedents establish important principles
that constrain application of the exclusionary rule.
First, the exclusionary rule is not an individual right
and applies only where it “ ‘result[s] in appreciable deter
rence.’ ” Leon, supra, at 909 (quoting United States v.
Janis, 428 U. S. 433, 454 (1976)). We have repeatedly
rejected the argument that exclusion is a necessary conse
quence of a Fourth Amendment violation. Leon, supra, at
905–906; Evans, supra, at 13–14; Pennsylvania Bd. of
Probation and Parole v. Scott, 524 U. S. 357, 363 (1998).
Instead we have focused on the efficacy of the rule in
——————
1 At an earlier point in its opinion, the Eleventh Circuit described the
error as “ ‘at the very least negligent,’ ” 492 F. 3d 1212, 1217 (2007)
(quoting Michigan v. Tucker, 417 U. S. 433, 447 (1974)). But in the
next paragraph, it clarified that the error was “a negligent failure to
act, not a deliberate or tactical choice to act,” 492 F. 3d, at 1218. The
question presented treats the error as a “negligen[t]” one, see Pet. for
Cert. i; Brief in Opposition (I), and both parties briefed the case on that
basis.
6 HERRING v. UNITED STATES
Opinion of the Court
deterring Fourth Amendment violations in the future. See
Calandra, supra, at 347–355; Stone v. Powell, 428 U. S.
465, 486 (1976).2
In addition, the benefits of deterrence must outweigh
the costs. Leon, supra, at 910. “We have never suggested
that the exclusionary rule must apply in every circum
stance in which it might provide marginal deterrence.”
Scott, supra, at 368. “[T]o the extent that application of
the exclusionary rule could provide some incremental
deterrent, that possible benefit must be weighed against
[its] substantial social costs.” Illinois v. Krull, 480 U. S.
340, 352–353 (1987) (internal quotation marks omitted).
The principal cost of applying the rule is, of course, letting
guilty and possibly dangerous defendants go free—
something that “offends basic concepts of the criminal
justice system.” Leon, supra, at 908. “[T]he rule’s costly
toll upon truth-seeking and law enforcement objectives
presents a high obstacle for those urging [its] application.”
Scott, supra, at 364–365 (internal quotation marks omit
ted); see also United States v. Havens, 446 U. S. 620, 626–
627 (1980); United States v. Payner, 447 U. S. 727, 734
(1980).
These principles are reflected in the holding of Leon:
When police act under a warrant that is invalid for lack of
probable cause, the exclusionary rule does not apply if the
police acted “in objectively reasonable reliance” on the
subsequently invalidated search warrant. 468 U. S., at
922. We (perhaps confusingly) called this objectively
——————
2 JUSTICEGINSBURG’s dissent champions what she describes as “ ‘a
more majestic conception’ of . . . the exclusionary rule,” post, at 5
(quoting Arizona v. Evans, 514 U. S. 1, 18 (1995) (STEVENS, J., dissent
ing)), which would exclude evidence even where deterrence does not
justify doing so. Majestic or not, our cases reject this conception, see,
e.g., United States v. Leon, 468 U. S. 897, 921, n. 22 (1984), and perhaps
for this reason, her dissent relies almost exclusively on previous dis
sents to support its analysis.
Cite as: 555 U. S. ____ (2009) 7
Opinion of the Court
reasonable reliance “good faith.” Ibid., n. 23. In a com
panion case, Massachusetts v. Sheppard, 468 U. S. 981
(1984), we held that the exclusionary rule did not apply
when a warrant was invalid because a judge forgot to
make “clerical corrections” to it. Id., at 991.
Shortly thereafter we extended these holdings to war
rantless administrative searches performed in good-faith
reliance on a statute later declared unconstitutional.
Krull, supra, at 349–350. Finally, in Evans, 514 U. S. 1,
we applied this good-faith rule to police who reasonably
relied on mistaken information in a court’s database that
an arrest warrant was outstanding. We held that a mis
take made by a judicial employee could not give rise to
exclusion for three reasons: The exclusionary rule was
crafted to curb police rather than judicial misconduct;
court employees were unlikely to try to subvert the Fourth
Amendment; and “most important, there [was] no basis for
believing that application of the exclusionary rule in
[those] circumstances” would have any significant effect in
deterring the errors. Id., at 15. Evans left unresolved
“whether the evidence should be suppressed if police
personnel were responsible for the error,”3 an issue not
argued by the State in that case, id., at 16, n. 5, but one
that we now confront.
2. The extent to which the exclusionary rule is justified
by these deterrence principles varies with the culpability
of the law enforcement conduct. As we said in Leon, “an
——————
3 We thus reject JUSTICE BREYER’s suggestion that Evans was entirely
“premised on a distinction between judicial errors and police errors,”
post, at 1 (dissenting opinion). Were that the only rationale for our
decision, there would have been no reason for us expressly and care
fully to leave police error unresolved. In addition, to the extent Evans
is viewed as presaging a particular result here, it is noteworthy that
the dissent’s view in that case was that the distinction JUSTICE BREYER
regards as determinative was instead “artificial.” 514 U. S., at 29
(GINSBURG, J., dissenting).
8 HERRING v. UNITED STATES
Opinion of the Court
assessment of the flagrancy of the police misconduct con
stitutes an important step in the calculus” of applying the
exclusionary rule. 468 U. S., at 911. Similarly, in Krull
we elaborated that “evidence should be suppressed ‘only if
it can be said that the law enforcement officer had knowl
edge, or may properly be charged with knowledge, that the
search was unconstitutional under the Fourth Amend
ment.’ ” 480 U. S., at 348–349 (quoting United States v.
Peltier, 422 U. S. 531, 542 (1975)).
Anticipating the good-faith exception to the exclusionary
rule, Judge Friendly wrote that “[t]he beneficent aim of
the exclusionary rule to deter police misconduct can be
sufficiently accomplished by a practice . . . outlawing
evidence obtained by flagrant or deliberate violation of
rights.” The Bill of Rights as a Code of Criminal Proce
dure, 53 Calif. L. Rev. 929, 953 (1965) (footnotes omitted);
see also Brown v. Illinois, 422 U. S. 590, 610–611 (1975)
(Powell, J., concurring in part) (“[T]he deterrent value of
the exclusionary rule is most likely to be effective” when
“official conduct was flagrantly abusive of Fourth Amend
ment rights”).
Indeed, the abuses that gave rise to the exclusionary
rule featured intentional conduct that was patently un
constitutional. In Weeks, 232 U. S. 383, a foundational
exclusionary rule case, the officers had broken into the
defendant’s home (using a key shown to them by a
neighbor), confiscated incriminating papers, then returned
again with a U. S. Marshal to confiscate even more. Id., at
386. Not only did they have no search warrant, which the
Court held was required, but they could not have gotten
one had they tried. They were so lacking in sworn and
particularized information that “not even an order of court
would have justified such procedure.” Id., at 393–394.
Silverthorne Lumber Co. v. United States, 251 U. S. 385
(1920), on which petitioner repeatedly relies, was similar;
federal officials “without a shadow of authority” went to
Cite as: 555 U. S. ____ (2009) 9
Opinion of the Court
the defendants’ office and “made a clean sweep” of every
paper they could find. Id., at 390. Even the Government
seemed to acknowledge that the “seizure was an outrage.”
Id., at 391.
Equally flagrant conduct was at issue in Mapp v. Ohio,
367 U. S. 643 (1961), which overruled Wolf v. Colorado,
338 U. S. 25 (1949), and extended the exclusionary rule to
the States. Officers forced open a door to Ms. Mapp’s
house, kept her lawyer from entering, brandished what
the court concluded was a false warrant, then forced her
into handcuffs and canvassed the house for obscenity. 367
U. S., at 644–645. See Friendly, supra, at 953, and n. 127
(“[T]he situation in Mapp” featured a “flagrant or deliber
ate violation of rights”). An error that arises from nonre
curring and attenuated negligence is thus far removed
from the core concerns that led us to adopt the rule in the
first place. And in fact since Leon, we have never applied
the rule to exclude evidence obtained in violation of the
Fourth Amendment, where the police conduct was no more
intentional or culpable than this.
3. To trigger the exclusionary rule, 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. As laid out in
our cases, the exclusionary rule serves to deter deliberate,
reckless, or grossly negligent conduct, or in some circum
stances recurring or systemic negligence. The error in this
case does not rise to that level.4
Our decision in Franks v. Delaware, 438 U. S. 154
——————
4 We do not quarrel with JUSTICE GINSBURG’s claim that “liability for
negligence . . . creates an incentive to act with greater care,” post, at 7,
and we do not suggest that the exclusion of this evidence could have no
deterrent effect. But our cases require any deterrence to “be weighed
against the ‘substantial social costs exacted by the exclusionary rule,’ ”
Illinois v. Krull, 480 U. S. 340, 352–353 (1987) (quoting Leon, 468 U. S.,
at 907), and here exclusion is not worth the cost.
10 HERRING v. UNITED STATES
Opinion of the Court
(1978), provides an analogy. Cf. Leon, supra, at 914. In
Franks, we held that police negligence in obtaining a
warrant did not even rise to the level of a Fourth Amend
ment violation, let alone meet the more stringent test for
triggering the exclusionary rule. We held that the Consti
tution allowed defendants, in some circumstances, “to
challenge the truthfulness of factual statements made in
an affidavit supporting the warrant,” even after the war
rant had issued. 438 U. S., at 155–156. If those false
statements were necessary to the Magistrate Judge’s
probable-cause determination, the warrant would be
“voided.” Ibid. But we did not find all false statements
relevant: “There must be allegations of deliberate false
hood or of reckless disregard for the truth,” and
“[a]llegations of negligence or innocent mistake are insuf
ficient.” Id., at 171.
Both this case and Franks concern false information
provided by police. Under Franks, negligent police mis
communications in the course of acquiring a warrant do
not provide a basis to rescind a warrant and render a
search or arrest invalid. Here, the miscommunications
occurred in a different context—after the warrant had
been issued and recalled—but that fact should not require
excluding the evidence obtained.
The pertinent analysis of deterrence and culpability is
objective, not an “inquiry into the subjective awareness of
arresting officers,” Reply Brief for Petitioner 4–5. See also
post, at 10, n. 7 (GINSBURG, J., dissenting). We have
already held that “our good-faith inquiry is confined to the
objectively ascertainable question whether a reasonably
well trained officer would have known that the search was
illegal” in light of “all of the circumstances.” Leon, 468
U. S., at 922, n. 23. These circumstances frequently in
clude a particular officer’s knowledge and experience, but
that does not make the test any more subjective than the
one for probable cause, which looks to an officer’s knowl
Cite as: 555 U. S. ____ (2009) 11
Opinion of the Court
edge and experience, Ornelas v. United States, 517 U. S.
690, 699–700 (1996), but not his subjective intent, Whren
v. United States, 517 U. S. 806, 812–813 (1996).
4. We do not suggest that all recordkeeping errors by
the police are immune from the exclusionary rule. In this
case, however, the conduct at issue was not so objectively
culpable as to require exclusion. In Leon we held that “the
marginal or nonexistent benefits produced by suppressing
evidence obtained in objectively reasonable reliance on a
subsequently invalidated search warrant cannot justify
the substantial costs of exclusion.” 468 U. S., at 922. The
same is true when evidence is obtained in objectively
reasonable reliance on a subsequently recalled warrant.
If the police have been shown to be reckless in maintain
ing a warrant system, or to have knowingly made false
entries to lay the groundwork for future false arrests,
exclusion would certainly be justified under our cases
should such misconduct cause a Fourth Amendment viola
tion. We said as much in Leon, explaining that an officer
could not “obtain a warrant on the basis of a ‘bare bones’
affidavit and then rely on colleagues who are ignorant of
the circumstances under which the warrant was obtained
to conduct the search.” Id., at 923, n. 24 (citing Whiteley v.
Warden, Wyo. State Penitentiary, 401 U. S. 560, 568
(1971)). Petitioner’s fears that our decision will cause
police departments to deliberately keep their officers
ignorant, Brief for Petitioner 37–39, are thus unfounded.
The dissent also adverts to the possible unreliability of a
number of databases not relevant to this case. Post, at 8–
9. In a case where systemic errors were demonstrated, it
might be reckless for officers to rely on an unreliable
warrant system. See Evans, 514 U. S., at 17 (O’Connor,
J., concurring) (“Surely it would not be reasonable for the
police to rely . . . on a recordkeeping system . . . that rou
tinely leads to false arrests” (second emphasis added));
Hudson, 547 U. S., at 604 (KENNEDY, J., concurring) (“If a
12 HERRING v. UNITED STATES
Opinion of the Court
widespread pattern of violations were shown . . . there
would be reason for grave concern” (emphasis added)).
But there is no evidence that errors in Dale County’s
system are routine or widespread. Officer Anderson testi
fied that he had never had reason to question information
about a Dale County warrant, App. 27, and both Sandy
Pope and Sharon Morgan testified that they could remem
ber no similar miscommunication ever happening on their
watch, id., at 33, 61–62. That is even less error than in
the database at issue in Evans, where we also found reli
ance on the database to be objectively reasonable. 514
U. S., at 15 (similar error “every three or four years”).
Because no such showings were made here, see 451
F. Supp. 2d, at 1292,5 the Eleventh Circuit was correct to
affirm the denial of the motion to suppress.
* * *
Petitioner’s claim that police negligence automatically
triggers suppression cannot be squared with the principles
underlying the exclusionary rule, as they have been ex
plained in our cases. In light of our repeated holdings that
the deterrent effect of suppression must be substantial
and outweigh any harm to the justice system, e.g., Leon,
468 U. S., at 909–910, we conclude that when police mis
takes are the result of negligence such as that described
here, rather than systemic error or reckless disregard of
——————
5 JUSTICE GINSBURG notes that at an earlier suppression hearing Mor
gan testified—apparently in confusion—that there had been miscom
munications “[s]everal times.” Post, at 3, n. 2 (quoting App. to Pet. for
Cert. 17a). When she later realized that she had misspoken, Morgan
emphatically corrected the record. App. 61–62. Noting this, the Dis
trict Court found that “Morgan’s ‘several times’ statement is confusing
and essentially unhelpful,” and concluded that there was “no credible
evidence of routine problems with disposing of recalled warrants.” 451
F. Supp. 2d, at 1292. This factual determination, supported by the
record and credited by the Court of Appeals, see 492 F. 3d, at 1219, is of
course entitled to deference.
Cite as: 555 U. S. ____ (2009) 13
Opinion of the Court
constitutional requirements, any marginal deterrence does
not “pay its way.” Id., at 907–908, n. 6 (internal quotation
marks omitted). In such a case, the criminal should not
“go free because the constable has blundered.” People v.
Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion
of the Court by Cardozo, J.).
The judgment of the Court of Appeals for the Eleventh
Circuit is affirmed.
It is so ordered.
Cite as: 555 U. S. ____ (2009) 1
GINSBURG, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–513
_________________
BENNIE DEAN HERRING, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 14, 2009]
JUSTICE GINSBURG, with whom JUSTICE STEVENS,
JUSTICE SOUTER, and JUSTICE BREYER join, dissenting.
Petitioner Bennie Dean Herring was arrested, and
subjected to a search incident to his arrest, although no
warrant was outstanding against him, and the police
lacked probable cause to believe he was engaged in crimi
nal activity. The arrest and ensuing search therefore
violated Herring’s Fourth Amendment right “to be secure
. . . against unreasonable searches and seizures.” The
Court of Appeals so determined, and the Government does
not contend otherwise. The exclusionary rule provides
redress for Fourth Amendment violations by placing the
government in the position it would have been in had
there been no unconstitutional arrest and search. The
rule thus strongly encourages police compliance with the
Fourth Amendment in the future. The Court, however,
holds the rule inapplicable because careless recordkeeping
by the police—not flagrant or deliberate misconduct—
accounts for Herring’s arrest.
I would not so constrict the domain of the exclusionary
rule and would hold the rule dispositive of this case: “[I]f
courts are to have any power to discourage [police] error of
[the kind here at issue], it must be through the application
of the exclusionary rule.” Arizona v. Evans, 514 U. S. 1,
22–23 (1995) (STEVENS, J., dissenting). The unlawful
2 HERRING v. UNITED STATES
GINSBURG, J., dissenting
search in this case was contested in court because the
police found methamphetamine in Herring’s pocket and a
pistol in his truck. But the “most serious impact” of the
Court’s holding will be on innocent persons “wrongfully
arrested based on erroneous information [carelessly main
tained] in a computer data base.” Id., at 22.
I
A warrant for Herring’s arrest was recalled in February
2004, apparently because it had been issued in error. See
Brief for Petitioner 3, n. 1 (citing App. 63). The warrant
database for the Dale County Sheriff’s Department, how
ever, does not automatically update to reflect such
changes. App. 39–40, 43, 45. A member of the Dale
County Sheriff’s Department—whom the parties have not
identified—returned the hard copy of the warrant to the
County Circuit Clerk’s office, but did not correct the De
partment’s database to show that the warrant had been
recalled. Id., at 60. The erroneous entry for the warrant
remained in the database, undetected, for five months.
On a July afternoon in 2004, Herring came to the Coffee
County Sheriff’s Department to retrieve his belongings
from a vehicle impounded in the Department’s lot. Id., at
17. Investigator Mark Anderson, who was at the Depart
ment that day, knew Herring from prior interactions:
Herring had told the district attorney, among others, of
his suspicion that Anderson had been involved in the
killing of a local teenager, and Anderson had pursued
Herring to get him to drop the accusations. Id., at 63–64.
Informed that Herring was in the impoundment lot,
Anderson asked the Coffee County warrant clerk whether
there was an outstanding warrant for Herring’s arrest.
Id., at 18. The clerk, Sandy Pope, found no warrant. Id.,
at 19.
Anderson then asked Pope to call the neighboring Dale
County Sheriff’s Department to inquire whether a warrant
Cite as: 555 U. S. ____ (2009) 3
GINSBURG, J., dissenting
to arrest Herring was outstanding there. Upon receiving
Pope’s phone call, Sharon Morgan, the warrant clerk for
the Dale County Department, checked her computer data
base. As just recounted, that Department’s database
preserved an error. Morgan’s check therefore showed—
incorrectly—an active warrant for Herring’s arrest. Id., at
41. Morgan gave the misinformation to Pope, ibid., who
relayed it to Investigator Anderson, id., at 35. Armed with
the report that a warrant existed, Anderson promptly
arrested Herring and performed an incident search min
utes before detection of the error.
The Court of Appeals concluded, and the Government
does not contest, that the “failure to bring the [Dale
County Sheriff’s Department] records up to date [was] ‘at
the very least negligent.’ ” 492 F. 3d 1212, 1217 (CA11
2007) (quoting Michigan v. Tucker, 417 U. S. 433, 447
(1974)). And it is uncontested here that Herring’s arrest
violated his Fourth Amendment rights. The sole question
presented, therefore, is whether evidence the police ob
tained through the unlawful search should have been
suppressed.1 The Court holds that suppression was un
warranted because the exclusionary rule’s “core concerns”
are not raised by an isolated, negligent recordkeeping
error attenuated from the arrest. Ante, at 9, 12.2 In my
view, the Court’s opinion underestimates the need for a
forceful exclusionary rule and the gravity of recordkeeping
——————
1 That the recordkeeping error occurred in Dale County rather than
Coffee County is inconsequential in the suppression analysis. As the
Court notes, “we must consider the actions of all the police officers
involved.” Ante, at 4. See also United States v. Leon, 468 U. S. 897,
923, n. 24 (1984).
2 It is not altogether clear how “isolated” the error was in this case.
When the Dale County Sheriff’s Department warrant clerk was first
asked: “[H]ow many times have you had or has Dale County had
problems, any problems with communicating about warrants,” she
responded: “Several times.” App. to Pet. for Cert. 17a (internal quota
tion marks omitted).
4 HERRING v. UNITED STATES
GINSBURG, J., dissenting
errors in law enforcement.
II
A
The Court states that the exclusionary rule is not a
defendant’s right, ante, at 5; rather, it is simply a remedy
applicable only when suppression would result in appre
ciable deterrence that outweighs the cost to the justice
system, ante, at 12. See also ante, at 9 (“[T]he exclusion
ary rule serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or
systemic negligence.”).
The Court’s discussion invokes a view of the exclusion
ary rule famously held by renowned jurists Henry J.
Friendly and Benjamin Nathan Cardozo. Over 80 years
ago, Cardozo, then seated on the New York Court of Ap
peals, commented critically on the federal exclusionary
rule, which had not yet been applied to the States. He
suggested that in at least some cases the rule exacted too
high a price from the criminal justice system. See People
v. Defore, 242 N. Y. 13, 24–25, 150 N. E. 585, 588–589
(1926). In words often quoted, Cardozo questioned
whether the criminal should “go free because the constable
has blundered.” Id., at 21, 150 N. E., at 587.
Judge Friendly later elaborated on Cardozo’s query.
“The sole reason for exclusion,” Friendly wrote, “is that
experience has demonstrated this to be the only effective
method for deterring the police from violating the Consti
tution.” The Bill of Rights as a Code of Criminal Proce
dure, 53 Calif. L. Rev. 929, 951 (1965). He thought it
excessive, in light of the rule’s aim to deter police conduct,
to require exclusion when the constable had merely “blun
dered”—when a police officer committed a technical error
in an on-the-spot judgment, id., at 952, or made a “slight
and unintentional miscalculation,” id., at 953. As the
Court recounts, Judge Friendly suggested that deterrence
Cite as: 555 U. S. ____ (2009) 5
GINSBURG, J., dissenting
of police improprieties could be “sufficiently accomplished”
by confining the rule to “evidence obtained by flagrant or
deliberate violation of rights.” Ibid.; ante, at 8.
B
Others have described “a more majestic conception” of
the Fourth Amendment and its adjunct, the exclusionary
rule. Evans, 514 U. S., at 18 (STEVENS, J., dissenting).
Protective of the fundamental “right of the people to be
secure in their persons, houses, papers, and effects,” the
Amendment “is a constraint on the power of the sovereign,
not merely on some of its agents.” Ibid. (internal quota
tion marks omitted); see Stewart, The Road to Mapp v.
Ohio and Beyond: The Origins, Development and Future
of the Exclusionary Rule in Search-and-Seizure Cases, 83
Colum. L. Rev. 1365 (1983). I share that vision of the
Amendment.
The exclusionary rule is “a remedy necessary to ensure
that” the Fourth Amendment’s prohibitions “are observed
in fact.” Id., at 1389; see Kamisar, Does (Did) (Should)
The Exclusionary Rule Rest On A “Principled Basis”
Rather Than An “Empirical Proposition”? 16 Creighton
L. Rev. 565, 600 (1983). The rule’s service as an essential
auxiliary to the Amendment earlier inclined the Court to
hold the two inseparable. See Whiteley v. Warden, Wyo.
State Penitentiary, 401 U. S. 560, 568–569 (1971). Cf.
Olmstead v. United States, 277 U. S. 438, 469–471 (1928)
(Holmes, J., dissenting); id., at 477–479, 483–485
(Brandeis, J., dissenting).
Beyond doubt, a main objective of the rule “is to deter—
to compel respect for the constitutional guaranty in the
only effectively available way—by removing the incentive
to disregard it.” Elkins v. United States, 364 U. S. 206,
217 (1960). But the rule also serves other important
purposes: It “enabl[es] the judiciary to avoid the taint of
partnership in official lawlessness,” and it “assur[es] the
6 HERRING v. UNITED STATES
GINSBURG, J., dissenting
people—all potential victims of unlawful government
conduct—that the government would not profit from its
lawless behavior, thus minimizing the risk of seriously
undermining popular trust in government.” United States
v. Calandra, 414 U. S. 338, 357 (1974) (Brennan, J., dis
senting). See also Terry v. Ohio, 392 U. S. 1, 13 (1968) (“A
rule admitting evidence in a criminal trial, we recognize,
has the necessary effect of legitimizing the conduct which
produced the evidence, while an application of the exclu
sionary rule withholds the constitutional imprimatur.”);
Kamisar, supra, at 604 (a principal reason for the exclu
sionary rule is that “the Court’s aid should be denied ‘in
order to maintain respect for law [and] to preserve the
judicial process from contamination’ ” (quoting Olmstead,
277 U. S., at 484 (Brandeis, J., dissenting)).
The exclusionary rule, it bears emphasis, is often the
only remedy effective to redress a Fourth Amendment
violation. See Mapp v. Ohio, 367 U. S. 643, 652 (1961)
(noting “the obvious futility of relegating the Fourth
Amendment to the protection of other remedies”); Amster
dam, Perspectives on the Fourth Amendment, 58 Minn.
L. Rev. 349, 360 (1974) (describing the exclusionary rule
as “the primary instrument for enforcing the [F]ourth
[A]mendment”). Civil liability will not lie for “the vast
majority of [F]ourth [A]mendment violations—the fre
quent infringements motivated by commendable zeal, not
condemnable malice.” Stewart, 83 Colum. L. Rev., at
1389. Criminal prosecutions or administrative sanctions
against the offending officers and injunctive relief against
widespread violations are an even farther cry. See id., at
1386–1388.
III
The Court maintains that Herring’s case is one in which
the exclusionary rule could have scant deterrent effect and
therefore would not “pay its way.” Ante, at 13 (internal
Cite as: 555 U. S. ____ (2009) 7
GINSBURG, J., dissenting
quotation marks omitted). I disagree.
A
The exclusionary rule, the Court suggests, is capable of
only marginal deterrence when the misconduct at issue is
merely careless, not intentional or reckless. See ante, at 9,
11. The suggestion runs counter to a foundational premise
of tort law—that liability for negligence, i.e., lack of due
care, creates an incentive to act with greater care. The
Government so acknowledges. See Brief for United States
21; cf. Reply Brief 12.
That the mistake here involved the failure to make a
computer entry hardly means that application of the
exclusionary rule would have minimal value. “Just as the
risk of respondeat superior liability encourages employers
to supervise . . . their employees’ conduct [more carefully],
so the risk of exclusion of evidence encourages policymak
ers and systems managers to monitor the performance of
the systems they install and the personnel employed to
operate those systems.” Evans, 514 U. S., at 29, n. 5
(GINSBURG, J., dissenting).
Consider the potential impact of a decision applying the
exclusionary rule in this case. As earlier observed, see
supra, at 2, the record indicates that there is no electronic
connection between the warrant database of the Dale
County Sheriff’s Department and that of the County Cir
cuit Clerk’s office, which is located in the basement of the
same building. App. 39–40, 43, 45. When a warrant is
recalled, one of the “many different people that have ac
cess to th[e] warrants,” id., at 60, must find the hard copy
of the warrant in the “two or three different places” where
the department houses warrants, id., at 41, return it to
the Clerk’s office, and manually update the Department’s
database, see id., at 60. The record reflects no routine
practice of checking the database for accuracy, and the
failure to remove the entry for Herring’s warrant was not
8 HERRING v. UNITED STATES
GINSBURG, J., dissenting
discovered until Investigator Anderson sought to pursue
Herring five months later. Is it not altogether obvious
that the Department could take further precautions to
ensure the integrity of its database? The Sheriff’s De
partment “is in a position to remedy the situation and
might well do so if the exclusionary rule is there to remove
the incentive to do otherwise.” 1 W. LaFave, Search and
Seizure §1.8(e), p. 313 (4th ed. 2004). See also Evans, 514
U. S., at 21 (STEVENS, J., dissenting).
B
Is the potential deterrence here worth the costs it im
poses? See ante, at 9. In light of the paramount impor
tance of accurate recordkeeping in law enforcement, I
would answer yes, and next explain why, as I see it,
Herring’s motion presents a particularly strong case for
suppression.
Electronic databases form the nervous system of con
temporary criminal justice operations. In recent years,
their breadth and influence have dramatically expanded.
Police today can access databases that include not only the
updated National Crime Information Center (NCIC), but
also terrorist watchlists, the Federal Government’s em
ployee eligibility system, and various commercial data
bases. Brief for Electronic Privacy Information Center
(EPIC) et al. as Amicus Curiae 6. Moreover, States are
actively expanding information sharing between jurisdic
tions. Id., at 8–13. As a result, law enforcement has an
increasing supply of information within its easy electronic
reach. See Brief for Petitioner 36–37.
The risk of error stemming from these databases is not
slim. Herring’s amici warn that law enforcement data
bases are insufficiently monitored and often out of date.
Brief for Amicus EPIC 13–28. Government reports de
Cite as: 555 U. S. ____ (2009) 9
GINSBURG, J., dissenting
scribe, for example, flaws in NCIC databases,3 terrorist
watchlist databases,4 and databases associated with the
Federal Government’s employment eligibility verification
system.5
Inaccuracies in expansive, interconnected collections of
electronic information raise grave concerns for individual
liberty. “The offense to the dignity of the citizen who is
arrested, handcuffed, and searched on a public street
simply because some bureaucrat has failed to maintain
an accurate computer data base” is evocative of the use
of general warrants that so outraged the authors of our
Bill of Rights. Evans, 514 U. S., at 23 (STEVENS, J.,
dissenting).
C
The Court assures that “exclusion would certainly be
justified” if “the police have been shown to be reckless in
maintaining a warrant system, or to have knowingly
made false entries to lay the groundwork for future false
arrests.” Ante, at 11. This concession provides little
comfort.
First, by restricting suppression to bookkeeping errors
that are deliberate or reckless, the majority leaves Her
ring, and others like him, with no remedy for violations of
——————
3 See Dept. of Justice, Bureau of Justice Statistics, P. Brien, Improv
ing Access to and Integrity of Criminal History Records, NCJ 200581
(July 2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/iaichr.pdf
(All Internet materials as visited Jan. 12, 2009, and included in Clerk
of Court’s case file.).
4 See Dept. of Justice, Office of Inspector General, Audit of the U. S.
Department of Justice Terrorist Watchlist Nomination Processes, Audit
Rep. 08–16 (Mar. 2008), http://www.usdoj.gov/oig/reports/plus/a0816/
final.pdf.
5 See Social Security Admin., Office of Inspector General, Congres
sional Response Report: Accuracy of the Social Security Administra
tion’s Numident File, A–08–06–26100 (Dec. 2006), http://www.ssa.gov/
oig/ADOBEPDF/A–08–06–26100.pdf.
10 HERRING v. UNITED STATES
GINSBURG, J., dissenting
their constitutional rights. See supra, at 6. There can be
no serious assertion that relief is available under 42
U. S. C. §1983. The arresting officer would be sheltered by
qualified immunity, see Harlow v. Fitzgerald, 457 U. S.
800 (1982), and the police department itself is not liable
for the negligent acts of its employees, see Monell v. New
York City Dept. of Social Servs., 436 U. S. 658 (1978).
Moreover, identifying the department employee who com
mitted the error may be impossible.
Second, I doubt that police forces already possess suffi
cient incentives to maintain up-to-date records. The Gov
ernment argues that police have no desire to send officers
out on arrests unnecessarily, because arrests consume
resources and place officers in danger. The facts of this
case do not fit that description of police motivation. Here
the officer wanted to arrest Herring and consulted the
Department’s records to legitimate his predisposition. See
App. 17–19.6
Third, even when deliberate or reckless conduct is afoot,
the Court’s assurance will often be an empty promise: How
is an impecunious defendant to make the required show
ing? If the answer is that a defendant is entitled to dis
covery (and if necessary, an audit of police databases), see
Tr. of Oral Arg. 57–58, then the Court has imposed a
considerable administrative burden on courts and law
enforcement.7
——————
6 It has been asserted that police departments have become suffi
ciently “professional” that they do not need external deterrence to avoid
Fourth Amendment violations. See Tr. of Oral Arg. 24–25; cf. Hudson
v. Michigan, 547 U. S. 586, 598–599 (2006). But professionalism is a
sign of the exclusionary rule’s efficacy—not of its superfluity.
7 It is not clear how the Court squares its focus on deliberate conduct
with its recognition that application of the exclusionary rule does not
require inquiry into the mental state of the police. See ante, at 10;
Whren v. United States, 517 U. S. 806, 812–813 (1996).
Cite as: 555 U. S. ____ (2009) 11
GINSBURG, J., dissenting
IV
Negligent recordkeeping errors by law enforcement
threaten individual liberty, are susceptible to deterrence
by the exclusionary rule, and cannot be remedied effec
tively through other means. Such errors present no occa
sion to further erode the exclusionary rule. The rule “is
needed to make the Fourth Amendment something real; a
guarantee that does not carry with it the exclusion of
evidence obtained by its violation is a chimera.” Ca
landra, 414 U. S., at 361 (Brennan, J., dissenting). In
keeping with the rule’s “core concerns,” ante, at 9, sup
pression should have attended the unconstitutional search
in this case.
* * *
For the reasons stated, I would reverse the judgment of
the Eleventh Circuit.
Cite as: 555 U. S. ____ (2009) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 07–513
_________________
BENNIE DEAN HERRING, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[January 14, 2009]
JUSTICE BREYER, with whom JUSTICE SOUTER joins,
dissenting.
I agree with JUSTICE GINSBURG and join her dissent. I
write separately to note one additional supporting factor
that I believe important. In Arizona v. Evans, 514 U. S. 1
(1995), we held that recordkeeping errors made by a court
clerk do not trigger the exclusionary rule, so long as the
police reasonably relied upon the court clerk’s recordkeep
ing. Id., at 14; id., at 16–17 (O’Connor, J., concurring).
The rationale for our decision was premised on a distinc
tion between judicial errors and police errors, and we gave
several reasons for recognizing that distinction.
First, we noted that “the exclusionary rule was histori
cally designed as a means of deterring police misconduct,
not mistakes by court employees.” Id., at 14 (emphasis
added). Second, we found “no evidence that court employ
ees are inclined to ignore or subvert the Fourth Amend
ment or that lawlessness among these actors requires
application of the extreme sanction of exclusion.” Id., at
14–15. Third, we recognized that there was “no basis for
believing that application of the exclusionary rule. . .
[would] have a significant effect on court employees re
sponsible for informing the police that a warrant has been
quashed. Because court clerks are not adjuncts to the law
enforcement team engaged in the often competitive enter
2 HERRING v. UNITED STATES
BREYER, J., dissenting
prise of ferreting out crime, they have no stake in the
outcome of particular criminal prosecutions.” Id., at 15
(citation omitted). Taken together, these reasons explain
why police recordkeeping errors should be treated differ
ently than judicial ones.
Other cases applying the “good faith” exception to the
exclusionary rule have similarly recognized the distinction
between police errors and errors made by others, such as
judicial officers or legislatures. See United States v. Leon,
468 U. S. 897 (1984) (police reasonably relied on magis
trate’s issuance of warrant); Massachusetts v. Sheppard,
468 U. S. 981 (1984) (same); Illinois v. Krull, 480 U. S. 340
(1987) (police reasonably relied on statute’s constitutional
ity).
Distinguishing between police recordkeeping errors and
judicial ones not only is consistent with our precedent, but
also is far easier for courts to administer than THE CHIEF
JUSTICE’s case-by-case, multifactored inquiry into the
degree of police culpability. I therefore would apply the
exclusionary rule when police personnel are responsible
for a recordkeeping error that results in a Fourth Amend
ment violation.
The need for a clear line, and the recognition of such a
line in our precedent, are further reasons in support of the
outcome that JUSTICE GINSBURG’s dissent would reach.