[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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United States v. Herring
Court: Court of Appeals for the Eleventh Circuit
Date filed: 2007-07-17
Citations: 492 F.3d 1212
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