United States v. Herring

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
JULY 17, 2007
THOMAS K. KAHN
No. 06-10795
CLERK
___________________________

D.C. Docket No. 05-00161-CR-T-S

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

BENNIE DEAN HERRING,

Defendant-Appellant.

_____________________________

Appeal from the United States District Court
for the Middle District of Alabama
_____________________________

(July 17, 2007)

Before CARNES, PRYOR and FARRIS,* Circuit Judges.

CARNES, Circuit Judge:

*
Honorable Jerome Farris, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
 The facts of this case present an interesting issue involving whether to apply

the exclusionary rule. Officers in one jurisdiction check with employees of a law

enforcement agency in another jurisdiction and are told that there is an outstanding

warrant for an individual. Acting in good faith on that information the officers

arrest the person and find contraband. It turns out the warrant had been recalled.

The erroneous information that led to the arrest and search is the result of a good

faith mistake by an employee of the agency in the other jurisdiction. Does the

exclusionary rule require that evidence of the contraband be suppressed, or does

the good faith exception to the rule permit use of the evidence?

I.

On a July afternoon in 2004, Bennie Dean Herring drove his pickup truck

to the Coffee County, Alabama Sheriff’s Department to check on another of his

trucks, which was impounded in the Department’s lot. As Herring was preparing

to leave the Sheriff’s Department, Coffee County Investigator Mark Anderson

arrived at work. Anderson knew Herring and had reason to suspect that there

might be an outstanding warrant for his arrest. Anderson asked Sandy Pope, the

warrant clerk for the Coffee County Sheriff’s Department, to check the county

database. She did and told Anderson that she saw no active warrants for Herring

in Coffee County.

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 Investigator Anderson asked Pope to call the Sheriff’s Department in

neighboring Dale County to see if there were any outstanding warrants for Herring

there. Pope telephoned Sharon Morgan, the Dale County warrant clerk, who

checked her database and told Pope that there was an active warrant in that county

charging Herring with failure to appear on a felony charge. Pope relayed that

information to Anderson.

Acting quickly on the information, Investigator Anderson and a Coffee

County deputy sheriff followed Herring as he drove away from the Sheriff’s

Department. They pulled Herring over and arrested him pursuant to the Dale

County warrant, and they searched both his person and the truck incident to the

arrest. The search turned up some methamphetamine in Herring’s pocket and a

pistol under the front seat of his truck. All of that happened in Coffee County.

Meanwhile back in Dale County, Warrant Clerk Morgan was trying in vain

to locate a copy of the actual warrant for Herring’s arrest. After she could not find

one, she checked with the Dale County Clerk’s Office, which informed her that the

warrant had been recalled. Morgan immediately called Pope, her counterpart in

Coffee County, to relay this information, and Pope transmitted it to the two Coffee

County arresting officers. Only ten to fifteen minutes had elapsed between the

time that Morgan in Dale County had told Pope that an active warrant existed and

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the time that Morgan called her back to correct that statement. In that short

interval, however, the Coffee County officers had acted on the initial information

by arresting Herring and carrying out the searches incident to that arrest.

As a result of the contraband found during the searches, Herring was

indicted on charges of possessing methamphetamine in violation of 21 U.S.C. §

844(a), and being a felon in possession of a firearm in violation of 18 U.S.C. §

922(g)(1). He moved to suppress any evidence of the methamphetamine and

firearm on grounds that the searches that turned them up were not incident to a

lawful arrest, because the arrest warrant on which the officers acted had been

rescinded.

The magistrate judge recommended denying the motion to suppress. He

found that the arresting officers conducted their search in a good faith belief that

the arrest warrant was still outstanding, and that they had found the drugs and

firearm before learning the warrant had been recalled. The magistrate judge

concluded that there was “simply no reason to believe that application of the

exclusionary rule here would deter the occurrence of any future mistakes.” The

district court adopted the magistrate judge’s recommendation and made the

additional finding that the erroneous warrant information appeared to be the fault

of Dale County Sheriff’s Department personnel instead of anyone in Coffee

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County.

A jury convicted Herring of both counts, and he was sentenced to 27 months

imprisonment. His sole contention on appeal is that the district court erred in

denying his motion to suppress the drugs and firearm that were found during the

search of his truck.

II.

The parties agree on the central facts. The Coffee County officers made the

arrest and carried out the searches incident to it based on their good faith,

reasonable belief that there was an outstanding warrant for Herring in Dade

County. They found the drugs and firearm before learning that the warrant had

been recalled. The erroneous information about the warrant resulted from the

negligence of someone in the Dale County Sheriff’s Department, and no one in

Coffee County contributed to the mistake. The only dispute is whether, under

these facts, the exclusionary rule requires the suppression of the firearm and drugs.

A.

The Fourth Amendment protects the “right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and

seizures.” United States Const. Amend. IV. The searches of Herring’s person and

truck cannot be justified as incident to a lawful arrest because the arrest was not

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lawful. There was no probable cause for the arrest and the warrant had been

rescinded. That means the searches violated Herring’s Fourth Amendment rights,

but it does not mean that the evidence obtained through them must be suppressed.

As the Supreme Court has told us on more than one occasion, whether to apply the

exclusionary rule is “an issue separate from the question [of] whether the Fourth

Amendment rights of the party seeking to invoke the rule were violated by police

conduct.” United States v. Leon, 468 U.S. 897, 906, 104 S. Ct. 3405, 3412 (1984)

(quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S. Ct. 2317, 2324 (1983)).

The Leon case is the premier example of the distinction between finding a

constitutional violation and excluding evidence based on that violation. Leon held

that the exclusionary rule does not bar the use of evidence obtained by officers

acting in good faith reliance on a warrant which is later found not to be supported

by probable cause. Id. at 922, 104 S. Ct. at 3420. The Court’s analysis of whether

the exclusionary rule should be applied to constitutional violations stemming from

mistakes by judicial officers carried out by law enforcement officers proceeded in

two steps. First, the Court considered whether the rule should be applied because

it might improve the performance of judges and magistrate judges, and the Court

concluded that was not a good enough reason for applying it. See id. at 916–17,

104 S. Ct. at 3417–18 (“[T]he exclusionary rule is designed to deter police

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misconduct rather than to punish the errors of judges and magistrates.”); see also

Illinois v. Krull, 480 U.S. 340, 348, 107 S. Ct. 1160, 1166 (1987). Second, the

Court considered whether, and if so how much, application of the exclusionary

rule in that circumstance might be expected to improve the behavior of law

enforcement officers, and it concluded that any slight deterrent benefit provided by

applying the rule would be outweighed by the heavy costs of excluding relevant

and material evidence. Leon, 468 U.S. at 920–22, 104 S. Ct. at 3419–20 (“We

conclude 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.”); see also Krull,

480 U.S. at 348, 107 S. Ct. at 1166; United States v. Accardo, 749 F.2d 1477,

1480 (11th Cir. 1985) (characterizing Leon as establishing that the exclusionary

rule “remains viable only as a deterrent to police misconduct”).

A decade later, in Arizona v. Evans, 514 U.S. 1, 115 S. Ct. 1185 (1995), the

Court extended Leon’s “good faith exception” to the exclusionary rule to

circumstances in which officers rely in good faith on a court employee’s

representation that a valid warrant existed when, in fact, the warrant has

previously been quashed. Id. at 14, 115 S. Ct. at 1193. The government contends

that Evans involved essentially the same situation as this case and that the Evans

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decision standing alone justifies the admission of the illegally obtained evidence

here. We think, however, that this effort by the government to justify its capture

of Herring red-handed relies on a red herring. The Supreme Court in Evans

expressly declined to address whether the exclusionary rule should be applied

when police personnel rather than court employees are the source of the error, id.

at 15 n.5, 115 S. Ct. at 1194 n.5, thereby disavowing any decision on the issue the

government argues the Court decided.

For guidance on this issue we return to Leon. The opinion in that case

instructs us that “[w]hether the exclusionary sanction is appropriately imposed in a

particular case . . . must be resolved by weighing the costs and benefits of

preventing the use in the prosecution’s case in chief of inherently trustworthy

tangible evidence.” 468 U.S. at 906, 104 S. Ct. at 3412. A rule that denies the

jury access to probative evidence “must be carefully limited to the circumstances

in which it will pay its way by deterring official lawlessness.” Gates, 462 U.S. at

257–58, 103 S. Ct. at 2342. That means the exclusionary rule should only be

applied to a category of cases if it will “result in appreciable deterrence.” United

States v. Janis, 428 U.S. 433, 454, 96 S. Ct. 3021, 3032 (1976). Application of the

rule is unwarranted where “[a]ny incremental deterrent effect . . . is uncertain at

best.” United States v. Calandra, 414 U.S. 338, 351, 94 S. Ct. 613, 621 (1974).

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The possibility that application of the exclusionary rule in a situation may deter

Fourth Amendment violations to some extent is not enough. Alderman v. United

States, 394 U.S. 165, 174, 89 S. Ct. 961, 967 (1969); see Leon, 468 U.S. at 910,

104 S. Ct. at 3413. Instead, the test for extending the exclusionary rule is whether

the costs of doing so are outweighed by the deterrent benefits. Leon, 468 U.S. at

910, 104 S. Ct. at 3413.

The “substantial social costs exacted by the exclusionary rule” are well

known. Id. at 907, 104 S. Ct. at 3412. The Supreme Court has “consistently

recognized that unbending application of the exclusionary sanction . . . would

impede unacceptably the truth-finding functions of judge and jury,” United States

v. Payner, 447 U.S. 727, 734, 100 S. Ct. 2439, 2445 (1980), and it has “repeatedly

emphasized that the rule’s ‘costly toll’ upon truth-seeking and law enforcement

objectives presents a high obstacle for those urging [its] application.” Pa. Bd. of

Prob. & Parole v. Scott, 524 U.S. 357, 364–65, 118 S. Ct. 2014, 2020 (1998). For

that reason, suppression of evidence has always been a last resort, not a first

impulse. Hudson v. Michigan, ___ U.S. ___, 126 S. Ct. 2159, 2163 (2006).

Unlike the costs of applying the exclusionary rule, the benefits of doing so

are hard to gauge because empirical evidence of the rule’s deterrent effect is

difficult, if not impossible, to come by. See Janis, 428 U.S. at 449–53, 96 S. Ct. at

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3030–31. Even if we could measure or approximate any deterrent effect that the

exclusionary rule produces, in order to value that effect we must identify the

intended target of the deterrence. Id. at 448, 96 S. Ct. at 3029 (“In evaluating the

need for a deterrent sanction, one must first identify those who are to be

deterred.”). It is this question that the first part of Leon and nearly all of Evans

addresses. See Leon, 468 U.S. at 913–17, 104 S. Ct. at 3415–18; Evans, 514 U.S.

at 11–17, 115 S. Ct. at 1191–94. The answer that both cases give is that the

exclusionary rule is designed to deter police misconduct, rather than to punish the

errors of others (in those cases, judicial magistrates and court clerks). Leon, 468

U.S. at 916, 104 S. Ct. at 3417; Evans, 514 U.S. at 11, 115 S. Ct. at 1191. Our

decisions give the same answer. See, e.g., United States v. Martin, 297 F.3d 1308,

1313 (11th Cir. 2002); Accardo, 749 F.2d at 1480. Misconduct by other actors is a

proper target of the exclusionary rule only insofar as those others are “adjuncts to

the law enforcement team.” Evans, 514 U.S. at 15, 115 S. Ct. at 1193.

To sum up, our review of Leon identifies three conditions that must occur to

warrant application of the exclusionary rule. First, there must be misconduct by

the police or by adjuncts to the law enforcement team. Id. at 913–17, 104 S. Ct. at

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3415–18.1 Second, application of the rule must result in appreciable deterrence of

that misconduct. Id. at 909, 104 S. Ct. at 3413. Finally, the benefits of the rule’s

application must not outweigh its costs. Id. at 910, 104 S. Ct. at 3413.

B.

As for the first condition, “[t]he deterrent purpose of the exclusionary rule

necessarily assumes that the police have engaged in willful, or at the very least

negligent, conduct which has deprived the defendant of some right.” Michigan v.

Tucker, 417 U.S. 433, 447, 94 S. Ct. 2357, 2365 (1974). The conduct in question

in this case is the failure of someone inside the Dale County Sheriff’s Office to

record in that department’s records the fact that the arrest warrant for Herring had

been recalled or rescinded by the court or by the clerk’s office. That failure to

bring the records up to date is “at the very least negligent.” See id. We will

assume for present purposes that the negligent actor, who is unidentified in the

record, is an adjunct to law enforcement in Dale County and is to be treated for

purposes of the exclusionary rule as a police officer. See supra note 1.

As for the second consideration in deciding whether to apply the

1
In Evans, the Supreme Court left open the possibility that the only misconduct which is
relevant to an analysis of the exclusionary rule’s deterrent effect is that of police officers, as
distinguished from non-officer police personnel. 514 U.S. at 15 n.5, 115 S. Ct. at 1194 n.5. We
assume away that issue because it does not matter to our decision in this case.

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exclusionary rule to these circumstances, doing so will not deter bad record

keeping to any appreciable extent, if at all. There are several reasons for this. For

one thing, the conduct in question is a negligent failure to act, not a deliberate or

tactical choice to act. There is no reason to believe that anyone in the Dale County

Sheriff’s Office weighed the possible ramifications of being negligent and decided

to be careless in record keeping. Deterrents work best where the targeted conduct

results from conscious decision making, because only if the decision maker

considers the possible results of her actions can she be deterred.

Another reason that excluding evidence resulting from the negligent failure

to update records is unlikely to reduce to any significant extent that type of

negligence is that there are already abundant incentives for keeping records

current. First, there is the inherent value of accurate record-keeping to effective

police investigation. Inaccurate and outdated information in police files is just as

likely, if not more likely, to hinder police investigations as it is to aid them.

Second, and related to the first reason, there is the possibility of reprimand or

other job discipline for carelessness in record keeping. Third, there is the

possibility of civil liability if the failure to keep records updated results in illegal

arrests or other injury. Fourth, there is the risk that the department where the

records are not kept up to date will have relevant evidence excluded from one of

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its own cases as a result.

There is also the unique circumstance here that the exclusionary sanction

would be levied not in a case brought by officers of the department that was guilty

of the negligent record keeping, but instead it would scuttle a case brought by

officers of a different department in another county, one whose officers and

personnel were entirely innocent of any wrongdoing or carelessness. We do not

mean to suggest that Dale County law enforcement agencies are not interested in

the successful prosecution of crime throughout the state, but their primary

responsibility and interest lies in their own cases. Hoping to gain a beneficial

deterrent effect on Dale County personnel by excluding evidence in a case brought

by Coffee County officers would be like telling a student that if he skips school

one of his classmates will be punished. The student may not exactly relish the

prospect of causing another to suffer, but human nature being what it is, he is

unlikely to fear that prospect as much as he would his own suffering. For all of

these reasons, we are convinced that this is one of those situations where “[a]ny

incremental deterrent effect which might be achieved by extending the rule . . . is

uncertain at best,” Calandra, 414 U.S. at 348, 94 S. Ct. at 620, where the benefits

of suppression would be “marginal or nonexistent,” Leon, 468 U.S. at 920–22, 104

S. Ct. at 3420, and where the exclusionary rule would not “pay its way by

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deterring official lawlessness,” Gates, 462 U.S. at 257–58, 103 S. Ct. at 2342.

Turning to the third Leon condition, any minimal deterrence that might

result from applying the exclusionary rule in these circumstances would not

outweigh the heavy cost of excluding otherwise admissible and highly probative

evidence. Leon, 468 U.S. at 910, 104 S. Ct. at 3413.

In closing, we note, as the Supreme Court did in Leon, that the test for

reasonable police conduct is objective. 468 U.S. at 919 n.20, 104 S. Ct. at 3419

n.20. The district court found that “there [was] no credible evidence of routine

problems with disposing of recalled warrants” and updating records in Dale

County, and Herring does not contest that finding. If faulty record-keeping were

to become endemic in that county, however, officers in Coffee County might have

a difficult time establishing that their reliance on records from their neighboring

county was objectively reasonable. The good faith exception to the exclusionary

rule does not shelter evidence that was obtained in an unconstitutional arrest or

search that was based on objectively unreliable information. See Evans, 514 U.S.

at 17, 115 S. Ct. at 1194–95 (O’Connor, J., concurring).

AFFIRMED.

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