View PDF Version
In the Supreme Court of the United States
BENNIE DEAN HERRING, PETITIONER
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
GREGORY G. GARRE
Acting Solicitor General
Counsel of Record
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
Department of Justice
Washington, D.C. 20530-0001
Whether the good-faith exception to the exclusionary rule applies when a
police officer makes an arrest after receiving information from a different
law enforcement agency that an outstanding warrant exists, and that in formation
was incorrect because of a negligent error by that agency in failing to
remove the warrant from its files.
TABLE OF CONTENTS
Opinions below 1
Constitutional provision involved 1
Summary of argument 8
The court of appeals correctly held that suppression is not warranted in
this case 10
A. This Court has limited application of the exclusionary rule to situations
where it is most likely to accomplish its remedial aims without imposing
undue costs 11
B. Suppression is not warranted here 16
1. The arresting officers could not, and should
not have, been deterred 16
2. Suppression is not warranted in order to
deter other police employees 19
3. The costs of exclusion cannot be justified 33
C. That the person who made the negligent
error in this case works for the Dale
County Sheriff's Department does not by
itself require suppression 36
D. This case presents no opportunity to consider
large-scale information systems accessible by multiple law enforcement agencies
TABLE OF AUTHORITIES
Alderman v. United States, 394 U.S. 165 (1969) 13, 34, 37
Anderson v. Creighton, 483 U.S. 635 (1987) 29
Arizona v. Evans, 514 U.S. 1 (1995) passim
Baker v. McCollan, 443 U.S. 137 (1979) 18
Berg v. County of Allegheny, 219 F.3d 261 (3d Cir. 2000), cert. denied,
531 U.S. 1072 and 531 U.S. 1145 (2001) 31
Brady v. Maryland, 373 U.S. 83 (1963) 41, 42
Breithaupt v. Abram, 352 U.S. 432 (1957) 22
Brinegar v. United States, 338 U.S. 160 (1949) 35
Brown v. Illinois, 422 U.S. 590 (1975) 21, 34, 38, 42
City of Canton v. Harris, 489 U.S. 378 (1989) 30
City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) 32
Clanton v. Cooper, 129 F.3d 1147 (10th Cir. 1997) 29
Correctional Servs. Corp. v. Malesko, 534 U.S. 61 (2001) 29
Curley v. Village of Suffern, 268 F.3d 65 (2d Cir. 2001) 18
Cutter v. Wilkinson, 544 U.S. 709 (2005) 45
Dickerson v. United States, 530 U.S. 428 (2000) 42
Edwards v. Arizona, 451 U.S. 477 (1981) 41
Elkins v. United States, 364 U.S. 206 (1960) 11, 12, 41
Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008) 21
Franks v. Delaware, 438 U.S. 154 (1978) 21, 34
Gray v. Sheahan, No. 96 C 220, 1996 WL 672255 (N.D. Ill. Nov. 17, 1996)
Groh v. Ramirez, 540 U.S. 551 (2004) 35
Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177 (2004) 25
Hill v. California, 401 U.S. 797 (1971) 35
Hudson v. Michigan, 547 U.S. 586 (2006) passim
Illinois v. Andreas, 463 U.S. 765 (1983) 39
Illinois v. Gates, 462 U.S. 213 (1983) 6, 12
Illinois v. Krull, 480 U.S. 340 (1987) 13, 15, 36
Illinois v. Rodriguez, 497 U.S. 177 (1990) 35
INS v. Lopez-Mendoza, 468 U.S. 1032 (1984) 28, 33, 37, 43
Kansas v. Hendricks, 521 U.S. 346 (1997) 22
Kirk v. Hesselroth, 707 F. Supp. 1149 (N.D. Cal. 1988), aff'd, 914 F.2d
262 (9th Cir. 1990) 30
Kyles v. Whitley, 514 U.S. 419 (1995) 42, 43
Mapp v. Ohio, 367 U.S. 643 (1961) 26, 34, 41
Maryland v. Garrison, 480 U.S. 79 (1987) 35
Massachusetts v. Sheppard, 468 U.S. 981 (1984) 14, 15, 19
McMillian v. Monroe County, 520 U.S. 781 (1997) 32
McMurry v. Sheahan, 927 F. Supp. 1082 (N.D. Ill. 1996) 30, 31
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299 (1986) 31
Michigan v. Tucker, 417 U.S. 433 (1974) 12, 22
Milligan v. United States, No. 3:07:1053, 2008 WL 2280178 (M.D. Tenn. May
30, 2008) 30
Miranda v. Arizona, 384 U.S. 436 (1966) 42
Missouri v. Seibert, 542 U.S. 600 (2004) 23, 24
Monell v. New York City Dep't of Soc. Servs., 436 U.S. 658 (1978) 30
Murray v. United States, 487 U.S. 533 (1988) 38
Nix v. Williams, 467 U.S. 431 (1984) 26, 38
Oregon v. Elstad, 470 U.S. 298 (1985) 42
Overton v. Ohio, 534 U.S. 982 (2001) 39
Owen v. City of Independence, 445 U.S. 622 (1980) 30
Peña-Borrero v. Estremeda, 365 F.3d 7 (1st Cir. 2004) 29
Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357 (1998) 43
Rakas v. Illinois, 439 U.S. 128 (1978) 37
Rogan v. City of Los Angeles, 668 F. Supp. 1384 (C.D. Cal. 1987) 31
Smith v. Wade, 461 U.S. 30 (1983) 21
Stone v. Powell, 428 U.S. 465 (1976) 13, 34, 37
Terry v. Ohio, 392 U.S. 1 (1968) 12
United States v. Calandra, 414 U.S. 338 (1974) passim
United States v. Cazares-Olivas, 515 F.3d 726
(7th Cir. 2008), petition for cert. pending, No. 07- 10647 (filed Apr. 28,
United States v. Colon, 250 F.3d 130 (2d Cir. 2001) 40
United States v. Grubbs, 547 U.S. 90 (2006) 18
United States v. Hall, 434 F.3d 42 (1st Cir. 2006) 42
United States v. Havens, 446 U.S. 620 (1980) 38
United States v. Hensley, 469 U.S. 221 (1985) 40
United States v. Janis, 428 U.S. 433
(1976) 12, 19, 33, 37, 43
United States v. Leon, 468 U.S. 897 (1984) passim
United States v. Patane, 542 U.S. 630 (2004) 14
United States v. Payner, 447 U.S. 727 (1980) 13, 26
United States v. Peltier, 422 U.S. 531 (1975) 12
United States v. Santa, 180 F.3d 20 (2d Cir.), cert. denied, 528 U.S. 943
(1999) 40, 42
United States v. Shareef, 100 F.3d 1491 (10th Cir. 1996) 40
United States v. Ventresca, 380 U.S. 102 (1965) 17, 38
Virginia v. Moore, 128 S. Ct. 1598 (2008) 32, 33
Walder v. United States, 347 U.S. 62 (1954) 38
Weeks v. United States, 232 U.S. 383 (1914) 34
Whiteley v. Warden, 401 U.S. 560 (1971) 39
Willis v. Mullins, 517 F. Supp. 2d 1206 (E.D. Cal. 2007) 30
Withrow v. Williams, 507 U.S. 680 (1993) 42
Constitution, statutes, regulations and rule:
Amend. IV passim
Amend. V 14
18 U.S.C. 922(g)(1) 2
21 U.S.C. 844(a) 2
42 U.S.C. 1983 21, 28
42 U.S.C. 1988(b) 31
Section 20.35(a) 48
Section 20.35(b) 48
Fed. R. Evid.:
Rule 803(6) 23
Rule 803(6), advisory committee note, 1972 Proposed Rules 23
Black's Law Dictionary (8th ed. 2004) 22
Peter M. Brien, U.S. Dep't of Justice, Improving Access to and Integrity
of Criminal History Records (July 2005) <http://www.ojp.usdoj. gov/bjs/pub/pdf/iaichr.pdf>
Bureau of Justice Statistics, U.S. Dep't of Justice:
Improving Access to and Integrity of Criminal History Records (July 2005)
<http://www.ojp. usdoj.gov/bjs/pub/pdf/iaichr.pdf> 47
Improving Criminal History Records for Background Checks: National Criminal
Improvement program (NCHIP) (May 2003) <http://www.ojp.gov/bjs/pub/pdf/ichrbc.pdf>
National Criminal History Improvement Program (last modified May 21, 2008)
<http://www. ojp.usdoj.gov/bjs/nchip.htm> 47
Survey of State Criminal History Information Systems, 2003 (Feb. 2006) <http:www.ojp.usdoj.
Use and Management of Criminal History Record Information: A Comprehensive
Report 2001 Update (Dec. 2001) <http://www.ojp.usdoj.
Congress of the United States, Office of Technology Assessment, Federal
Government Information Technology: Electronic Record Systems and Individual
Privacy (June 1986) 47
40 Fed. Reg. 22,114- 22,115 (1975) 48
Kenneth C. Laudon, Data Quality and Due Process in Large Interorganizational
Record System, Communications of the ACM, Vol. 29, No. 1 (Jan. 1986) 47
Restatement (Second) of Torts (1979) 21
Secretary's Advisory Comm. on Automated Personal Data Systems, Dep't of
Health, Educ. & Welfare, Records, Computers and the Rights of Citizens
(July 1973) 47
Webster's Third New International Dictionary (1993) 22
In the Supreme Court of the United States
BENNIE DEAN HERRING, PETITIONER
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
BRIEF FOR THE UNITED STATES
1. OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 1a-12a) is reported at 492
F.3d 1212. The opinion of the district court (Pet. App. 13a-18a) is reported
at 451 F. Supp. 2d 1290.
The judgment of the court of appeals was entered on July 17, 2007. The petition
for a writ of certiorari was filed on October 11, 2007, and granted on February
19, 2008. The jurisdiction of this Court rests on 28 U.S.C. 1254(1).
2. CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the United States Constitu tion provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable search
es and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be seized.
Following a jury trial in the United States District Court for the Middle
District of Alabama, petitioner was convicted of possessing a firearm after
having been convicted of a felony, in violation of 18 U.S.C. 922(g)(1),
and possessing methamphetamine, in violation of 21 U.S.C. 844(a). He was
sentenced to 27 months of imprisonment. The court of ap peals affirmed.
Pet. App. 1a-12a.
1. On July 7, 2004, Investigator Mark Anderson of the Coffee County Sheriff's
Department was told by another officer that petitioner was retrieving property
from an im pounded vehicle at the Sheriff's Department. Pet. App. 2a, 13a-14a;
J.A. 17. Investigator Anderson, who knew peti tioner and had been told by
another officer that there was an outstanding warrant for petitioner's arrest,
asked war rant clerk Sandy Pope to check the Coffee County Sheriff's Department's
internal records. Pet. App. 2a; J.A. 16, 18. When Pope reported that there
were no active warrants in Coffee County, Investigator Anderson asked her
to check with neighboring Dale County. Pet. App. 2a. Pope tele phoned the
Dale County Sheriff's Department, and was told by its warrant clerk, Sharon
Morgan, that a check of an in-office database maintained by the Dale County
Sheriff's Department showed an active warrant for petitioner's ar rest on
charges of failure to appear on a felony charge. Ibid. Pope relayed the
information to Investigator Ander son and asked Morgan to fax her a copy
of the warrant. Id. at 2a, 14a; J.A. 34-35, 40-41.
Investigator Anderson and Deputy Neil Bradley immed iately left the station
to pursue petitioner, who was already leaving in a pickup truck. Pet. App.
2a; J.A 19-20. The offi cers pulled over petitioner's truck less than a
mile from the Coffee County Sheriff's Department and placed him under arrest.
Pet. App. 2a; J.A. 25. In petitioner's pocket, the officers found methamphetamine.
Pet. App. 14a. Under the pickup's front seat, they found a handgun. Id.
Meanwhile, Dale County warrant clerk Morgan unsuc cessfully attempted to
locate a copy of the warrant for peti tioner's arrest. Pet. App. 3a. The
Dale County Sheriff's Department and the Dale County Clerk's Office do not
share a computer network, J.A. 45, 55, so Morgan called the Dale County
Clerk's Office, and was told that the warrant had been recalled. Pet. App.
3a, 14a. Morgan "immedi ately" called Coffee County warrant clerk
Pope, who re layed the information to Investigator Anderson and Deputy Bradley.
Id. at 3a; J.A. 42. By that point, however, the officers had already arrested
petitioner and searched his person and the pickup. Pet. App. 3a. Between
10 and 15 minutes elapsed between the time Dale County warrant clerk Morgan
told Coffee County warrant clerk Pope that there was an active warrant for
petitioner's arrest and when Morgan called back with the correct information.
At the time of the suppression hearing in this case, In vestigator Anderson
had been a police officer for 16 years, J.A. 15, and Coffee County warrant
clerk Pope had been at her job for five years, J.A. 32. Coffee County and
Dale County are adjacent to one another, J.A. 27, and Anderson and Pope
both testified that they had previously relied on information from Dale
County about warrants. J.A. 26-27, 32. Anderson and Pope further testified
that, before peti tioner's arrest, they had never had cause to question
any information they received from Dale County. J.A. 16, 27, 33.
2. a. Petitioner moved to suppress the physical evidence against him on
the ground that it was the fruit of an unlaw ful arrest. Pet. App. 3a.1
After holding a suppression hear ing, a magistrate judge recommended that
petitioner's mo tion be denied in relevant part. J.A. 66-72. The magistrate
judge specifically found that Investigator Anderson and Deputy Bradley "acted
in good faith when they stopped and arrested [petitioner] based on the representations
of the warrant clerks that there was an active outstanding felony warrant
for [petitioner] in Dale County." J.A. 70.
b. The district court held a supplemental hearing, and issued an opinion
adopting the magistrate judge's recom mendation. Pet. App. 13a-18a.2 The
district court found that, when a warrant has been recalled, Dale County
war rant clerk Morgan will "[n]ormally" receive a phone call from
either the Dale County Clerk's Office or a judge's chambers, enter that
information in the Dale County Sher iff's Department's computer system,
and dispose of the physical copy of the warrant. Id. at 14a-15a; J.A. 54-55,
60. In this case, although the recalled warrant had been re turned to the
Dale County Clerk's Office, the Dale County Sheriff's Department's records
did not reflect that fact. Pet. App. 15a. The district court accepted the
testimony of Dale County warrant clerk Morgan that "the mistake was
probably the fault of the Dale County Sheriff's Depart ment, not that of
the Dale County Clerk's Office." Ibid.
The district court determined that this Court's decision in Arizona v. Evans,
514 U.S. 1 (1995), which recognized an exception to the exclusionary rule
for arrests that occur as a result of erroneous computer records kept by
court em ployees, should be extended to cover similar mistakes by law enforcement
personnel so long as there is a "mecha nism to ensure [the recordkeeping's]
system accuracy over time" and there is no evidence that "the
system 'routinely leads to false arrests.'" Pet. App. 17a (brackets
in original) (quoting Evans, 514 U.S. at 17 (O'Connor, J., concurring)).
In this case, the district court found that "the mistake was discovered
and corrected within ten to 15 minutes," that there was "no credible
evidence of routine problems with disposing of recalled warrants,"
and that the recordkeeping systems of both the Dale County Clerk's Office
and the Dale County Sheriff's Department "were, and are, 'reli able.'
" Id. at 17a-18a.
3. The court of appeals affirmed. Pet. App. 1a-12a. The court concluded
that "the searches violated [petitioner's] Fourth Amendment rights,"
because petitioner's arrest had not been supported by probable cause or
a warrant. Id. at 5a. But the court also stated that "whether to apply
the exclusionary rule is 'an issue separate from the question [of] whether
the Fourth Amendment rights of the par ty seeking to invoke the rule were
violated by police con duct.'" Ibid. (brackets in original) (quoting
United States v. Leon, 468 U.S. 897, 906 (1984) (quoting Illinois v. Gates,
462 U.S. 213, 223 (1983))). Applying the framework devel oped in Leon and
Evans, the court of appeals determined that suppression is not warranted
unless there was "mis conduct by the police or by adjuncts to the law
enforcement team," "application of the [exclusionary] rule [will]
result in appreciable deterrence of that misconduct," and "the
bene fits of the rule's application [will] not [be] outweigh[ed by] its
costs." Id. at 9a.
As for the first condition, the court of appeals deter mined that "[t]he
conduct in question" was the failure of an unidentified person in the
Dale County Sheriff's Depart ment "to record in that department's records
the fact that the arrest warrant for [petitioner] had been recalled or re
scinded." Pet. App. 9a. The court described that conduct as "at
the very least negligent," and it "assume[d] for pres ent purposes
that the negligent actor * * * is an adjunct to law enforcement in Dale
County and is to be treated for
purposes of the exclusionary rule as a police officer."
Ibid. (citation omitted).
Turning to the second issue, the court of appeals con cluded that applying
the exclusionary rule in "these circum stances * * * will not deter
bad record keeping to any appreciable extent, if at all." Pet. App.
10a. The court stated that "[d]eterrents work best where the targeted
con duct results from conscious decision making," but here "[t]here
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." Ibid. The court of appeals also observed
"that there are already abundant incentives for keeping records current,"
including "the inherent value of accurate record- keeping to effective
police investigation," "the possibility of reprimand or other
job discipline for carelessness," "the possibility of civil liability,"
and the "risk that the depart ment where the records are not kept up
to date will have relevant evidence excluded from one of its own cases as
a result." Id. at 10a-11a. In addition, the court of appeals emphasized
"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 negli gent 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 in nocent of any wrongdoing or carelessness."
Id. at 11a.
Finally, the court of appeals determined that "any mini mal deterrence
that might result from applying the ex clusionary rule in these circumstances
would not outweigh the heavy cost of excluding otherwise admissible and
highly probative evidence." Pet. App. 11a-12a. The court of ap peals
emphasized, however, "that the test for reasonable police conduct is
objective," and that "[i]f faulty record- keeping were to become
endemic in [Dale County], * * * officers in Coffee County might have a difficult
time estab lishing that their reliance on records from their neighbor ing
county was objectively reasonable." Id. at 12a.
4. SUMMARY OF ARGUMENT
The exclusionary rule generates substantial social costs by preventing factfinders
from hearing what is often highly probative and inherently reliable evidence.
Accordingly, the Court has carefully limited the rule's application to situ
ations where the deterrent purposes that it is designed to serve will be
appreciably furthered and where the benefits of suppression outweigh its
sizeable costs. Under those principles, suppression is not warranted when
police offi cers in the field make an arrest in objectively reasonable reliance
on a statement by another law enforcement agency that there is a warrant
for someone's arrest, where that statement was erroneous because of a negligent
error in recordkeeping by an employee of that other law enforce ment agency.
This Court has previously declined to apply the exclu sionary rule where
an arresting officer acts in good-faith reliance on information received
from magistrates or court employees or on statutes enacted by legislatures.
The Court has emphasized that the exclusionary rule is not designed--and
should not be deployed-to deter objective ly reasonable conduct. The Court
has also recognized that police officers in the field must be allowed to
rely on infor mation they receive from others when it is reasonable to do
so. In this case, there is no basis to conclude that the ar resting officers
acted unreasonably in relying on the report that there was an outstanding
warrant for petitioner's ar rest. Rather, the record refutes any suggestion
that the officers had any objective basis to question the information they
received. Accordingly, suppression cannot be justified by an interest in
deterring future officers in their position.
Nor can suppression be justified by the interest in deter ring negligent
mistakes in recordkeeping by police employ ees. This case involves a clerical
employee's isolated failure to act diligently rather than the sort of intentional
or fla grantly abusive police conduct for which the exclusionary rule was
originally designed. Police departments and their employees already have
ample built-in incentives to keep accurate records. Arrests based on recalled
warrants would ordinarily squander scarce police resources and risk the
ire of the citizenry. Failure to keep accurate records could potentially
subject both a police department and its employees to civil liability, especially
were they to engage in the sort of deliberately shoddy recordkeeping hypothe
sized by petitioner. Any incremental deterrence would be particularly attenuated
and indirect here, because the em ployee who made the negligent error and
the officers who made the arrest work for entirely different police depart
ments. And even if suppression would result in some con ceivable deterrence
benefits, those benefits cannot out weigh the societal costs where bad faith
is not at issue and the arrest occurred despite the best efforts of everyone
directly involved to discover the truth.
The fact that the clerical employee who made the negli gent recordkeeping
error at issue here works for the Dale County Sheriff's Department, rather
than a court, see Ari zona v. Evans, 514 U.S. 1 (1995), does not justify
a different result. Although this Court has repeatedly stated that the purpose
of the exclusionary rule is to deter the police rather than other actors
in the criminal justice system, it has never held that suppression is warranted
whenever a Fourth Amendment violation is attributable to the actions of
any one who works for a police department, even a clerical em ployee.
This case affords no opportunity to consider whether the exclusionary rule
should be modified in situations involving large-scale information systems
that are accessible by mul tiple law enforcement agencies. No such information
sys tem is at issue here. The creation of a computer database by the Dale
County Sheriff's Department for in-office use did not amplify the effects
of the recordkeeping error that led to petitioner's arrest; the result would
have been the same if the records were handwritten on file cards kept in
a steel box. The district court heard no evidence and made no findings about
the sorts of massive data systems dis cussed by petitioner and his amici,
and even their limited presentations about such systems are misleading and
THE COURT OF APPEALS CORRECTLY HELD THAT SUP PRESSION IS NOT WARRANTED IN
The issue in this case is whether the exclusionary rule should be applied
to suppress physical evidence obtained when a police officer makes an arrest
after receiving infor mation from a different law enforcement agency about
an outstanding warrant, where the information was incorrect because of a
negligent error by an employee of that other agency.3 This Court's decisions
make clear that the ex clusionary rule is a remedy designed to deter future
Fourth Amendment violations rather than to vindicate rights that have already
been violated. Accordingly, it should be ap plied only when doing so will
have tangible benefits that outweigh the rule's substantial social costs.
Neither crite rion is satisfied here.
6. A. This Court Has Limited Application Of The Exclusionary Rule To Situations
Where It Is Most Likely To Accomplish Its Remedial Aims Without Imposing
1. The Fourth Amendment provides, in relevant part, that "[t]he right
of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause." U.S. Const. Amend.
IV. The Fourth Amendment "contains no provision expressly precluding
the use of evidence obtained in violation of its commands," Arizona
v. Evans, 514 U.S. 1, 10 (1995), and this Court has "emphasized repeatedly
that the govern ment's use of evidence obtained in violation of the Fourth
Amendment does not itself violate the Constitution," Penn sylvania
Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 362 (1998). "The
wrong condemned by the Amendment is 'fully accomplished' by the unlawful
search or seizure itself," and "the use of fruits of a past unlawful
search or seizure 'work[s] no new Fourth Amendment wrong.'" United
States v. Leon, 468 U.S. 897, 906 (1984) (quoting United States v. Calandra,
414 U.S. 338, 354 (1974)).
The exclusionary rule is "a judicially created remedy designed to safeguard
Fourth Amendment rights." Leon, 468 U.S. at 906 (citation omitted).
"[T]he rule is prudential rather than constitutionally mandated."
Scott, 524 U.S. at 363. Its purpose is not to "cure the invasion of
the defen dant's rights which he has already suffered," Leon, 468 U.S.
at 906 (citation omitted), but to prevent "future violations of Fourth
Amendment rights through the rule's general deterrent effect," Evans,
514 U.S. at 10; see Elkins v. United States, 364 U.S. 206, 217 (1960) ("The
rule is calcu lated to prevent, not to repair.").4 Accordingly, "[t]he
ques tion whether the exclusionary rule's remedy is appropriate in a particular
context has long been regarded as an issue separate from the question whether
the Fourth Amend ment rights of the party seeking to invoke the rule were
violated by police conduct." Illinois v. Gates, 462 U.S. 213, 223 (1983).
The Court has repeatedly cautioned against the "reflex ive," Evans,
514 U.S. at 13, or "[i]ndiscriminate," Leon, 468 U.S. at 908,
application of the exclusionary rule. "[T]he exclusionary rule has
never been interpreted to proscribe the use of illegally seized evidence
in all proceedings or against all persons," Calandra, 414 U.S. at 348,
and "exclu sion may not be premised on the mere fact that a constitu
tional violation was a 'but-for' cause of obtaining evidence," Hudson
v. Michigan, 547 U.S. 586, 592 (2006). Rather, "[a]s with any remedial
device, the application of the [exclusionary] rule has been restricted to
those areas where its remedial objectives are thought most efficaciously
served." Calandra, 414 U.S. at 348. In particular, the Court has repeatedly
stated that an exclusionary remedy is "clearly * * * unwarranted"
unless its application will "result in appreciable deterrence"
beyond that provided by other mechanisms for preventing Fourth Amendment
viola tions. United States v. Janis, 428 U.S. 433, 454 (1976); see Hudson,
547 U.S. at 597-599; Evans, 514 U.S. at 11; Leon, 468 at 900.
At the same time, the Court has cautioned that suppres sion is not warranted
simply because applying the exclu sionary rule in a particular situation
would provide some incremental deterrence of Fourth Amendment violations.
See Scott, 524 U.S. at 368 ("We have never suggested that the exclusionary
rule must apply in every circumstance in which it might provide marginal
deterrence."); see also Hudson, 547 U.S. at 596; Leon, 468 U.S. at
910; Calandra, 414 U.S. at 350. The Court has recognized the compelling
"public interest in prosecuting those accused of crime and having them
acquitted or convicted on the basis of all the evidence which exposes the
truth." Alderman v. United States, 394 U.S. 165, 175 (1969). Exclusion
of inherently reliable and often highly probative evidence is an "extreme
sanction," Leon, 468 U.S. at 916, that "exacts a costly toll upon
the ability of courts to ascertain the truth," United States v. Payner,
447 U.S. 727, 734 (1980), and risks "set ting the guilty free and the
dangerous at large," Hudson, 547 U.S. at 591. In addition, because
"[t]he disparity in particular cases between the error committed by
the police officer and the windfall afforded a guilty defendant by ap plication
of the rule is contrary to the idea of proportional ity that is essential
to the concept of justice," the exclusion ary rule can "generat[e]
disrespect for the law and adminis tration of justice." Stone v. Powell,
428 U.S. 465, 490 (1976).
As a result, "[s]uppression of evidence * * * has al ways been [a]
last resort, not [a] first impulse," Hudson, 547 U.S. at 591, and any
"possible benefit" of applying the exclusionary rule in a given
situation "must be weighed
against the 'substantial social costs' exacted by" doing so, Illinois
v. Krull, 480 U.S. 340, 352 (1987) (quoting Leon, 468 U.S. at 907); cf.
United States v. Patane, 542 U.S. 630, 645 (2004) (Kennedy, J., concurring)
(in Fifth Amendment context, concluding that "[i]n light of the important
proba tive value of reliable physical evidence, it is doubtful that exclusion
can be justified by a deterrence rationale sensi tive to both law enforcement
interests and a suspect's rights during an in-custody interrogation").
2. In several contexts, this Court has held that the ex clusionary rule
should not be applied where an arresting officer acts in objectively reasonable
reliance on decisions of, or information received from, official actors
other than fellow police officers. In Leon, the Court concluded "that
the marginal or nonexistent benefits produced by suppress ing evidence obtained
in objectively reasonable reliance on a subsequently invalidated search
warrant cannot justify the substantial costs of exclusion." 468 U.S.
at 922. After determining that exclusion could not be justified by "its
behavioral effects on judges and magistrates," id. at 916; see id.
at 916-917, the Court rejected as "speculative" vari ous arguments
that suppression would "alter the behavior of individual law enforcement
officers or the policies of their departments," id. at 918. The Court
stated that the exclu sionary rule "cannot be expected, and should
not be applied, to deter objectively reasonable law enforcement activity,"
id. at 919, and it explained that mandating suppression in such circumstances
"can in no way affect [an officer's] fu ture conduct unless it is to
make him less willing to do his duty," id. at 919-920 (citation omitted).
In Massachusetts v. Sheppard, 468 U.S. 981 (1984), the Court applied the
good-faith exception recognized in Leon to a search warrant that had not
sufficiently described the items to be seized. The Court explained that
the arresting officers had taken "every step that could reasonably
be expected of them" by preparing a warrant affidavit, pre senting
it to a neutral judge, and relying on the judge's as surances that the resulting
warrant authorized them to conduct the search for which they had requested
permis sion in the affidavit. Id. at 989-991. The Court noted that "it
was the judge, not the police officers, who made the criti cal mistake,"
id. at 990, and stated that the "exclusionary rule was adopted to deter
unlawful searches by police, not to punish the errors of magistrates and
judges," ibid. (cita tion omitted).
In Krull, the Court held that the exclusionary rule should not be applied
where police officers conduct a search in reasonable reliance on a statute
that purports to autho rize such searches but is later declared unconstitutional.
480 U.S. at 349-361. The Court began by considering the effect of suppression
on the arresting officer. It concluded that, because "an officer cannot
be expected to question the judgment of the legislature" unless a statute
is "clearly un constitutional," mandating suppression when an
officer reasonably relies on a statute "will not deter future Fourth
Amendment violations by an officer who has simply fulfilled his responsibility
to enforce the statute as written." Id. at 349-350. The Court also
stated that the exclusionary rule was not designed to deter legislators
from enacting uncon stitutional statutes, id. at 350, and that no evidence
indi cated that suppression would significantly deter the actions of legislators,
id. at 351-352.
Finally, in Evans, this Court applied the same analysis to evidence seized
by a police officer who had acted in reli ance on an erroneous entry in
a police computer system indicating that there was an outstanding warrant
for the defendant's arrest. 514 U.S. at 3-4, 14-16. Assuming for purposes
of its decision that "the erroneous information resulted from an error
committed by an employee of the office of the Clerk of Court," id.
at 4, the Court concluded that "the exclusion of evidence at trial
would not sufficiently deter future errors so as to warrant such a severe
sanc tion," id. at 14. The Court explained that "the exclusionary
rule was historically designed as a means of deterring po lice misconduct,
not mistakes by court employees," and it noted that the party seeking
exclusion had "offer[ed] no evidence that court employees are inclined
to ignore or sub vert the Fourth Amendment or that lawlessness among th[o]se
actors require[d] the extreme sanction of exclusion," id. at 14-15.
The Court also concluded that application of the exclusionary rule "could
not be expected to alter the behavior of the arresting officer," because
nothing indicated that he did not act "objectively reasonably when
he relied upon the police computer record." Id. at 15-16. To the con
trary, the Court agreed with the district court's assessment that the arresting
officer had been "bound to arrest" and "would [have been]
derelict in his duty if he failed to ar rest." Ibid. (citation omitted;
brackets in original).
7. B. Suppression Is Not Warranted Here
1. The arresting officers could not, and should not have, been deterred
This case does not involve "any disputed issues of fact regarding the
arrest and search." Pet. 19. Investigator Anderson saw petitioner,
a person he knew, at the Coffee County Sheriff's Department. Pet. App. 2a.
Although In vestigator Anderson "had reason to suspect that there might
be an outstanding warrant for [petitioner's] arrest," he neither confronted
petitioner nor detained him immedi ately. Ibid. Instead, Investigator Anderson
asked Coffee County warrant clerk Pope to check the Coffee County records.
Ibid. When Pope reported that there were no outstanding warrants in Coffee
County, Anderson asked her to call her counterpart in Dale County. Ibid.
Pope spoke with Dale County warrant clerk Morgan, who told her that there
was an outstanding warrant for petitioner's arrest in that county. Ibid.
Pope then relayed the informa tion to Anderson, who "[a]ct[ed] quickly"
to pursue peti tioner as he departed from the Coffee County Sheriff's De
partment, and, along with Deputy Bradley, arrested peti tioner minutes later
and before the officers or anyone else in the Coffee County Sheriff's Department
learned that the warrant had been recalled. Id. at 1a-3a.
This Court has recognized that it is generally reasonable for police officers
to rely on information received from dis patchers and other officers. United
States v. Ventresca, 380 U.S. 102, 111 (1965). And here, as in Evans, "[t]here
is no indication that the arresting officer[s] [were] not acting objectively
reasonably when [they] relied upon" the infor mation they had received.
514 U.S. at 15-16; see id. at 17 (O'Connor, J., concurring). Investigator
Anderson specifi cally testified that, although Coffee County and Dale Coun
ty are adjacent to one another and relying on information from Dale County
was "just something that we do," he had never previously in his
sixteen years in law enforcement had cause "to question a Dale County
warrant" or "to ques tion information coming out of Dale County."
J.A. 27; see J.A. 16.5
Nor is there anything about this particular case that should have led the
arresting officers to question the reli ability of the information they
had received from Dale County. Dale County warrant clerk Morgan stated un
equivocally that there was a warrant for petitioner's arrest, and that report
was consistent with what Investigator An derson had previously been told
by another officer. J.A. 18. Petitioner claims that he himself "explained
[to the arrest ing officers] that he had recently seen the Dale County Cir
cuit Judge and that no such warrant existed," Pet. Br. 5; see id. at
44, but self-serving assertions by suspects are both common and easy to
make, and this Court has recog nized that police officers in the field are
not required to credit or investigate a suspect's protestations of innocence
before proceeding in a manner that would otherwise be justified. Baker v.
McCollan, 443 U.S. 137, 145-146 (1979); see United States v. Grubbs, 547
U.S. 90, 98-99 (2006) (stat ing that the Fourth Amendment does not require
an "exe cuting officer * * * [to] present [a] property owner with a
copy of the warrant before conducting his search" and does not grant
"property owners * * * license to engage the police in a debate over
the basis for the warrant"); Curley v. Village of Suffern, 268 F.3d
65, 70 (2d Cir. 2001) ("the arresting officer does not have to prove
[an arrestee's] ver sion wrong before arresting him").
The exclusionary rule "cannot be expected, and should not be applied,
to deter objectively reasonable law enforce ment activity." Leon, 468
U.S. at 919. Here, Investigator Anderson and Deputy Bradley "took every
step that could reasonably be expected of them," Sheppard, 468 U.S.
at 989, and did what reasonable officers would have done un der the circumstances.
As in Evans, they "[were] bound to arrest" and "would [have
been] derelict in [their] duty if [they] failed to arrest." 514 U.S.
at 15 (citation omitted). Suppressing the evidence seized from petitioner's
person and truck "can in no way affect [arresting officers'] future
conduct unless it is to make [them] less willing to do [their] duty."
Leon, 468 U.S. at 920 (citation omitted).
2. Suppression is not warranted in order to deter other police employees
For the reasons explained in the previous section, appli cation of the exclusionary
rule in the circumstances pre sented here cannot be justified by an interest
in "alter[ing] the behavior of the arresting officer." Evans,
514 U.S. at 15. Accordingly, the question becomes whether "the exclu
sion of evidence at trial would * * * sufficiently deter fu ture errors"
by other persons "so as to warrant such a se vere sanction." Id.
at 14. The answer is no.
a. "In evaluating the need for a deterrent sanction, one must first
identify those who are to be deterred." Janis, 428 U.S. at 448. Here,
the evidence reflects that the recordkeeping error was an isolated mistake,
rather than the result of a systemic inattention to the need to to main
tain accurate databases. To the extent, therefore, that sup pression would
be designed to send a message to policy makers to improve their systems
and training of personnel, nothing in this case suggests anything more than
a single instance of human error by an employee. Accordingly, the only person
the exclusionary rule could reasonably be in tended to deter is that unknown
individual in the Dale County Sheriff's Department who negligently failed
to up date that Department's records to reflect the recall of the warrant
for petitioner's arrest.
Suppression would not-and should not be expected to-deter a person in the
position of Coffee County warrant clerk Pope, who testified that in five
years she had "[n]e ver" previously "had a reason to doubt
information that came from Dale County." J.A. 33. Nor would suppression
be appropriate to deter a person in the position of Dale County warrant
clerk Morgan, because the district court expressly found that "there
is no credible evidence of rou tine problems with disposing of recalled
warrants" in Dale County, and that the Dale County Sheriff's Department's
recordkeeping system was "reliable." Pet. App. 17a-18a; cf. Hudson,
547 U.S. at 604 (Kennedy, J., concurring in part and concurring in the judgment)
(noting that the case be fore the Court did not involve "any demonstrated
pattern of knock-and-announce violations").6
b. Fourth Amendment violations vary considerably in both their severity
and their amenability to deterrence. "[T]he deterrent value of the
exclusionary rule is most likely to be effective" in situations where
a violation of the Fourth Amendment is "flagrantly abusive," Brown
v. Illi nois, 422 U.S. 590, 610-611 (1975) (Powell, J. concurring in part),
or "substantial and deliberate," Franks v. Delaware, 438 U.S.
154, 174 (1978). The converse is also true: the "extreme sanction"
of exclusion (Leon, 468 U.S. at 916) is both less necessary and less appropriate
in situations, like this one, that involve only "a negligent failure
to act." Pet. App. 10a.
Petitioner is of course correct (Br. 43) that even negli gent conduct is
capable of being deterred to a point and that "[m]uch of the edifice
of modern tort law is built upon the understanding that the prospect of
future liability will provide incentives for regulated actors to take the
appro priate level of care." But that same body of law recognizes that
certain kinds of conduct-most notably, deliberate violations of another's
rights or reckless wrongdoing-may require greater deterrents than a negligent
and apparently isolated mistake. For example, deterrence is one of two primary
justifications for permitting punitive damages for certain torts, but "[t]he
prevailing rule" limits the availabil ity of that remedy to cases "where
a defendant's conduct is outrageous, owing to gross negligence, willful,
wanton, and reckless indifference for the rights of others, or behavior
even more deplorable." Exxon Shipping Co. v. Baker, 128 S. Ct. 2605,
2621 (2008) (internal quotation marks and cita tions omitted); see Smith
v. Wade, 461 U.S. 30, 51 (1983) (requiring showing of "reckless or
callous disregard for the plaintiff's rights" to authorize punitive
damages under 42 U.S.C. 1983); Restatement (Second) of Torts § 908
cmt. b, at 464-465 (1979).
The same is true of substantive criminal law. Deterrence is one of "the
two primary objectives of criminal punish ment," Kansas v. Hendricks,
521 U.S. 346, 361-362 (1997), and "our criminal law is to no small
extent justified by the assumption of deterrence." Breithaupt v. Abram,
352 U.S. 432, 439 (1957). Yet both the magnitude of a criminal sanc tion-and,
indeed, the difference between criminal and purely civil liability-often
depends on whether the defen dant had a particularly culpable state of mind.
The same basic point holds true when assessing the need for "the harsh
deterrent of exclusion." Scott, 524 U.S. at 369.7
c. "[T]he value of [the] deterrence" provided by the exclusionary
rule also "depends upon the strength of the incentive to commit the
forbidden act." Hudson, 547 U.S. at 596. Where there is no "forbidden
act" in the first place, only a negligent and apparently isolated failure
to update a local police department's records, the value of any deter rence
provided by applying the exclusionary rule is likely to be extremely low.
Even when they receive their paycheck from a police department, clerical
employees whose job responsibilities include maintaining records are simply
not "engaged in the often competitive enterprise of ferreting out crime"
(Leon, 468 U.S. at 914 (citations omitted)) in the same way as officers
in the field. Rather, they are likely to view their jobs in much the same
way as their counterparts who maintain similar records for courts.
In addition, police departments, like other organizations, have built-in
incentives to keep accurate records. That common-sense proposition is supported
by Federal Rule of Evidence 803(6), which creates an exception to the general
prohibition on hearsay for records created and "kept in the course
of a regularly conducted business activity." That Rule defines "business"
to include "business, institution, as sociation, profession, occupation,
and calling of every kind, whether or not conducted for profit," Rule
803(6), and its advisory committee note makes clear that it encompasses
otherwise qualifying records created and kept by police departments, see
Rule 803(6), advisory committee note, 1972 Proposed Rules. The very premise
of Rule 803(6) is that such records have "unusual reliability,"
because of "systematic checking, * * * regularity and continuity which
produce habits of precision, * * * actual experience of business in relying
upon them, or * * * a duty to make an accurate record as part of a continuing
job or occupa tion." Ibid.
Petitioner contends (Br. 37-38) that failure to require suppression here
"would give law enforcement a perverse incentive" to structure
their recordkeeping to indicate rou tinely that there is a basis for an
arrest when there is not. Petitioner cites no evidence that the sort of
thing he posits is actually occurring, and there is no suggestion that it
hap pened here. Cf. Missouri v. Seibert, 542 U.S. 600, 605-606 (2004) (plurality
opinion) (citing testimony by an interrogat ing officer "that he made
a 'conscious decision' to withhold Miranda warnings, thus resorting to an
interrogation tech nique he had been taught") (citation omitted); id.
at 608 n.1, 609-611 (citing evidence of that technique's widespread use).
To the contrary, the error in this case appears to have been entirely inadvertent,
and it was detected and cor rected within 15 minutes of Dale County warrant
clerk Mor gan's original report. Pet. App. 3a.
Petitioner acknowledges (Br. 36-37) that this Court's decisions already
establish that officers in the field are not entitled to make an arrest
based on information they know to be false or in reliance on a record-keeping
system they have cause to know is inaccurate. See Evans, 514 U.S. at 15-16;
id. at 17 (O'Connor, J., concurring); Leon, 468 U.S. at 923. Accordingly,
petitioner must further posit (Br. 37- 38)-again, without any evidence or
even intuitive force- that police departments will conspire "to leave
officers in the field ignorant of the deficiencies in police record man
agement" and thus "manufacture * * * good faith." Peti tioner
provides no explanation for how this sort of far- fetched scheme would actually
work, and it would seem bound to be short-lived because it is difficult
to see how officers in a department that regularly arrested people without
legitimate basis could maintain "plausible deniabil ity about inaccuracies
in police records." Id. at 38.8
Finally, petitioner's argument on this point rests on the implausible-and
entirely unproven-assumption that po lice officers in the field invariably
benefit from being told that people for whom there is no valid arrest warrant
are actually subject to arrest. It is of course true that, in this particular
case, "[p]olice negligence * * * enabled the discovery of evidence
that would otherwise have been out side the reach of the police." Pet.
Br. 34; see id. at 48. But officers could not predict that having expired
warrants in a recordkeeping system would usually produce that result. And
"the appropriate perspective from which to consider the deterrent effects
of excluding evidence based on police department negligence is ex ante,
not ex post." Id. at 44.
In the typical situation, an arrest based on inaccurate information or a
recalled warrant will result in nothing more than a fruitless waste of police
resources, a matter of particular concern given the inability of most departments
to devote adequate resources to pursuing genuine leads and ensuring execution
of valid warrants. See Pet. Br. 42 (acknowledging that "many * * *
searches" conducted as a result of inaccurate or outdated information
"will produce no incriminating evidence"). In such cases, improper
ar rests may bring negative attention to the police, inspire the ire of
citizens, and erode the trust and good will that a po lice department normally
seeks to cultivate. In addition, a flawed recordkeeping system is likely
to make mistakes that cut both ways, including expired warrants and omitting
current ones. Erroneous information that no warrant ex ists when one is
outstanding will not only forestall justified arrests, but also deprive
officers of information that could enhance their ability to protect their
own safety. Cf. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186
(2004). The court of appeals was thus on solid ground when it stated that
"[i]nacccurate or outdated information in police files is just as likely,
if not more likely, to hinder police investiga tions as it is to aid them."
Pet. App. 10a.
d. Whether the exclusionary rule can be expected to provide appreciable
marginal deterrence is also a function of other deterrents that are already
in place. See Scott, 524 U.S. at 368 (framing inquiry as what "additional
deter rence" would be provided by application of the exclusionary rule).
It is true that this Court has concluded that criminal remedies are inadequate
as the sole means of safeguarding Fourth Amendment requirements. See Mapp
v. Ohio, 367 U.S. 643, 651-653 (1961). But the Court should not "assume
that exclusion in this context is necessary deterrence sim ply because [it]
found that it was necessary deterrence in different contexts and long ago."
Hudson, 547 U.S. at 597. As explained, see pp. 23-25, supra, police departments
have a strong incentive to maintain adequate records. In addi tion, substantial
deterrents to sloppy recordkeeping al ready exist, even without "the
harsh deterrent of exclu sion." Scott, 524 U.S. at 369.
i. One deterrent is "the possibility of reprimand or other job discipline
for carelessness in record keeping." Pet. App. 10a. Petitioner faults
the court of appeals (Br. 45) for "fail [ing] to offer any factual
support for its assertion that inter nal discipline might address the problem
here." But as early as 1980, this Court "felt it proper to 'assume'
that unlawful police behavior would 'be dealt with appropriately' by the
authorities." Hudson, 547 U.S. at 598-599 (quoting Payner, 447 U.S.
at 733-734 n.5). More recently, the Court recognized that "modern police
forces are staffed with pro fessionals" and stated that "it is
not credible to assert that internal discipline, which can limit successful
careers, will not have a deterrent effect." Id. at 599; accord Nix
v. Wil liams, 467 U.S. 431, 446 (1984) ("Significant disincentives
to obtaining evidence illegally-including the possibility of departmental
discipline * * *-also lessen the likelihood that the ultimate or inevitable
discovery exception will pro mote police misconduct."). At any rate,
virtually all employ ees are subject to reprimand and discipline for negligent
performance of their jobs, and there is no reason to assume, particularly
without any actual evidence, that police depart ment employees are somehow
uniquely immune from con sequences for slipshod recordkeeping.
Petitioner invokes "common sense" in support of his as sertion
(Br. 45) that internal discipline is unlikely to follow "[i]f employees'
negligence leads to the discovery of admis sible evidence that otherwise
would be unavailable." Like petitioner's earlier erroneous argument
about the nature of a police department's incentives to keep accurate records,
however, that contention overlooks that most instances of lax recordkeeping
will not lead to the discovery of admissi ble evidence, and it is impossible
for a given employee to know ahead of time whether a particular instance
of laxity will do so.
Petitioner also contends (Br. 45) that the fact that "the employee
who failed to make the proper change to Dale County's records has not been
identified" means that em ployee discipline cannot be an effective
deterrent against future mistakes. There are at least two problems with
that argument. The first is that it overreads the existing record. The most
recent evidentiary hearing in this case was held on October 21, 2005, the
only witness from the Dale County Sheriff's Department was warrant clerk
Morgan, and peti tioner never asked Morgan if she knew what internal steps
had been taken to identify or discipline the person who re turned the physical
warrant but failed to update the com puter record. The Court cannot assume
that the Dale County Sheriff's Department would be unable to discover which
employee was responsible for the error, particularly if this single and
apparently isolated one were to develop into a more substantial problem.
The second problem is that petitioner's argument proves far too much. If
the potential difficulty of identifying the most directly responsible employee
meant that internal discipline procedures could not be effective in deterring
future errors, then suppression would be unlikely to be an effective deterrent
for the same reason. And if petitioner were to respond that suppression
could underscore the need for better training and monitoring throughout
the Dale County Sheriff's Department, that position would assume that the
department would be relatively indifferent to errors in its warrant system
absent the deterrence force of exclusion. As discussed above, nothing supports
that assumption, and much common sense contradicts it. In deed, the diligence
of warrant clerk Morgan in discovering the error and promptly remedying
it suggests that inter agency law enforcement cooperation is built on reasonable
efforts at accuracy, not based on systematic carelessness.
ii. Petitioner's argument that police departments have an incentive to tolerate
or even encourage bad recordkeep ing is also belied by the fact that such
conduct could poten tially subject both the department and its employees
to civil liability. Cf. Hudson, 547 U.S. at 597, 599; INS v. Lopez-Mendoza,
468 U.S. 1032, 1045 (1984) (stating that "the availability of alternative
remedies" undermines "the deterrent value of the exclusionary
rule"). Regardless of whether civil remedies were available or adequate
in the past, this Court's more recent decisions establish that it is now
appropriate to presume that "civil liability is an effec tive deterrent."
Hudson, 547 U.S. at 598.
Petitioner and his amici contend that actions under 42 U.S.C. 1983 are unlikely
to provide an effective deter rent with respect to the type of error at
issue here, but their arguments largely depend on petitioner's earlier erro
neous claim that suppression is essential because plaintiffs could not identify
the responsible employee (Pet. Br. 46) and on claims that this Court has
already rejected in other contexts. Petitioner and his amici invoke the
prospect that individual government officials would be entitled to quali
fied immunity. Pet. Br. 47; ACLU Amicus Br. 4-5, 8-9; NACDL Amicus Br. 14.
This Court has already deter mined, however, that "the threat of litigation
and liability will adequately deter [individual government officials from
committing constitutional violations] no matter that they may enjoy qualified
immunity." Correctional Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001).
At any rate, the relevant inquiry for qualified-immunity purposes is whether
a reasonable officer in the defendant's position "could have believed"
that a given course of action was lawful. Anderson v. Creighton, 483 U.S.
635, 641 (1987). Officers who deliberately "tell colleagues that a
warrant [i]s in force, when in fact, it had not yet been sought," or
direct that a database be "set up * * * to re turn indications that
warrants exist" when they do not "in the hope that [it] would
permit a broader range of search es" (Pet. Br. 38), are not likely
to meet that standard. Ex perience also indicates "that the lower courts
are allowing colorable * * * suits to go forward, unimpeded by asser tions
of qualified immunity," Hudson, 547 U.S. at 598, or the concerns about
causation identified by petitioner (Pet. Br. 46) and his amici (ACLU Amicus
A person who is arrested based on an erroneous entry in a government recordkeeping
system may also be able to recover from "the deep pocket of municipalities."
See Hud son, 547 U.S. at 597; see Monell v. New York City Dep't of Soc.
Servs., 436 U.S. 658, 690 (1978). Unlike individual offi cers, local governments
cannot assert qualified immunity, see Owen v. City of Independence, 445
U.S. 622, 638 (1980), and they may be held liable if a constitutional violation
is attributable to their own policies, customs, or usages, see Monell, 436
U.S. at 690-691, such as the sort of deliberate failure to maintain accurate
records hypothesized by peti tioner, or sufficiently serious failures to
train or supervise, see City of Canton v. Harris, 489 U.S. 378, 387 (1989).
Here too, there is evidence "that the lower courts are allow ing colorable
* * * suits to go forward." Hudson, 547 U.S. at 598.10
The other arguments raised by petitioner's amici fare no better. They contend
that potential plaintiffs "lack * * * resources to litigate civil rights
claims" (NACLD Amicus Br. 15), and that "few attorneys will be
willing to undertake [such a] case" (ACLU Amicus Br. 7). The number
of re ported decisions suggests otherwise. See notes 9-10, supra. At any
rate, 42 U.S.C. 1988(b), which "authorize[s] attor ney's fees for civil-rights
plaintiffs," "answers this objec tion." Hudson, 547 U.S.
at 597. Amici also contend that civil actions cannot provide adequate deterrence
because of the limited size of the likely damages awards. ACLU Ami cus Br.
14-15; NACDL Amicus Br. 15. But Section 1983 actions are designed to deter
constitutional violations "through a mechanism of damages that are
compensa tory-damages grounded in determinations of plaintiffs' actual losses,"
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 307 (1986)- and a jury's
failure to award sizeable monetary relief would reflect only the jury's
appraisal of quantifiable injuries. That those injuries may be limited in
a particular case provides scant reason to award criminal defendants the
windfall of suppression.
Finally, petitioner and his amici complain that various forms of civil liability
may not be available in every State or in every circumstance. But Fourth
Amendment protections and remedies do not "vary from place to place."
Virginia v. Moore, 128 S. Ct. 1598, 1605 (2008) (citation omitted). It would
likewise be inappropriate to mandate nationwide suppression because a particular
State's generally applica ble law makes a county sheriff a state officer
who cannot be sued under Section 1983, Pet. Br. 46-47; ACLU Amicus Br. 5,
11,11 or fails to provide state law grounds for recovery, ACLU Amicus Br.
5-6, 15-20. If the citizens of Alabama conclude that additional deterrence
is necessary to deter mistaken arrests based on officers' good-faith reliance
on negligently maintained records, they are, of course, free to amend their
own State's law. See Hudson, 547 U.S. at 603 (Kennedy, J., concurring in
part and concurring in the judg ment) (stating that if existing measures
for deterring Fourth Amendment violations "prove ineffective, they
can be fortified with more detailed regulations or legislation.").
Alabama's failure to do so, however, does not supply a basis for expanding
the scope of the exclusionary rule throughout the Nation.12
e. The lack of appreciable deterrent effects that would flow from requiring
suppression in this case is further con firmed by the fact that the employee
who made the negli gent error in recordkeeping works for an entirely different
police department than the officers who made the arrest. Cf. Lopez-Mendoza,
468 U.S. at 1043 (stating that "the ex clusionary rule is likely to
be most effective when applied to * * * 'intrasovereign' violations").
Petitioner does not con tend that the Coffee County Sheriff's Department,
whose officers made the arrest, has any control over recordkeep ing in Dale
County, or any mechanism for identifying, disci plining, or providing further
training to the particular Dale County employee who made the error at issue
here. Ac cordingly, "the deterrent effect of the exclusion of relevant
evidence" from petitioner's trial would likely have been both indirect
and "highly attenuated." Janis, 428 U.S. at 458.
3. The costs of exclusion cannot be justified
Although the "existence" of appreciable "deterrence benefits
* * * is a necessary condition for exclusion," Hudson, 547 U.S. at
596, this Court has "never suggested that the exclusionary rule must
apply in every circumstance in which it might provide marginal deterrence,"
Scott, 524 U.S. at 368; accord Hudson, 547 U.S. at 596-597 (deter rence
is a necessary, not "sufficient condition"); Leon, 468 U.S. at
910; Alderman, 394 U.S. at 174. Instead, the Court must also determine whether
any "incremental deterrent effect," Calandra, 414 U.S. at 351,
of applying the ex clusionary rule would be "outweighed by the acknowledged
costs to other values vital to a rational system of justice," Stone,
428 U.S. at 494. The Court has declined to depart from this balancing approach
even where the failure to ap ply the exclusionary rule will leave certain
types of Fourth Amendment violations undeterred by any suppression rem edy.
See, e.g., Hudson, 547 U.S. at 596 (knock-and-an nounce violations). Here,
the result of the required balanc ing cuts decisively against suppression.
First, "an assessment of the flagrancy of the police mis conduct constitutes
an important step in the calculus" of whether the costs of applying
the exclusionary rule out weigh its benefits. Leon, 468 U.S. at 911; accord
Brown, 422 U.S. at 604. The decisions that initially crafted the exclusionary
rule and then applied it to the States involved intentional conduct that
directly violated a suspect's Fourth Amendment rights, see Weeks v. United
States, 232 U.S. 383, 386, 393-394 (1914); Mapp, 367 U.S. at 644-645, and
the Court has stated that suppression is most justified "where a Fourth
Amendment violation has been substantial and deliberate," Franks, 438
U.S. at 171. In this case, in con trast, any Fourth Amendment violation
occurred notwith standing the objective good faith of everyone involved,
and only as a result of several separate acts and omissions that occurred
over the course of months. To require suppres sion of the very instrumentalities
of the offenses with which petitioner is charged would bestow upon petitioner
an ex traordinary windfall, "contrary to the idea of proportional ity
that is essential to the concept of justice." Stone, 428 U.S. at 490;
see United States v. Cazares-Olivas, 515 F.3d 726, 728 (7th Cir. 2008) (Easterbrook,
C.J.) ("permitting people to get away with crime is too high a price
to pay for errors that * * * stem from negligence rather than dis dain for
constitutional requirements"), petition for cert. pending, No. 07-10647
(filed Apr. 28, 2008).
Second, this Court has recognized that some latitude must be allowed for
honest mistakes. Courts cannot rea sonably expect anyone-including the police-to
make no errors whatsoever. Illinois v. Rodriguez, 497 U.S. 177, 186 (1990);
Maryland v. Garrison, 480 U.S. 79, 87 & n.11 (1987); Hill v. California,
401 U.S. 797, 803-804 (1971); Brinegar v. United States, 338 U.S. 160, 176
(1949); see Groh v. Ramirez, 540 U.S. 551, 568 (2004) (Kennedy, J., dissenting).
The district court expressly held-and peti tioner does not contest-that
"there [was] no credible evi dence of routine problems with disposing
of recalled war rants and updating records in Dale County," Pet. App.
12a (internal quotation marks omitted); in fact, there is no evi dence in
the record that this particular kind of error had ever occurred before this
case. The error that led to peti tioner's arrest was detected within 15
minutes of the check of the in-office computer system that revealed an outstand
ing warrant for petitioner's arrest, and it came to light as quickly as
it did because of warrant clerk Morgan's diligent efforts to locate the
physical copy of the warrant. Morgan had no way of knowing that petitioner
had already been arrested when she called the Coffee County Sheriff's De
partment to alert its officers of the error, and the most rea sonable explanation
of Morgan's actions is that she was attempting to update her earlier report
before petitioner was apprehended. No sanction-no matter how severe- can
deter every possible error, no matter how isolated or brief in duration,
and requiring suppression in a case such as this one would be entirely unwarranted.
8. C. That The Person Who Made The Negligent Error In This Case Works For
The Dale County Sheriff's Department Does Not By Itself Require Suppression
The "categorical exception to the exclusionary rule" that this
Court announced in Evans, 514 U.S. at 16, does not apply here, because both
the district court (Pet. App. 15a, 18a) and the court of appeals (id. at
9a n.1, 11a) proceeded on the assumption that petitioner's arrest resulted
from an error by the Dale County Sheriff's Department rather than the Dale
County Clerk's Office. See Evans, 514 U.S. at 16 n.5 ("declin[ing]
to address" whether a similar analysis "would apply in order to
determine whether the evidence should be suppressed if police personnel
were responsible for the error"). Petitioner and his amici contend
that that distinction alone mandates suppression. Pet. Br. 9-11, 18, 24-32;
NACDL Amicus Br. 2, 7, 17-20. They are mistaken.
1. This Court has repeatedly stated that "the exclusion ary rule [is]
aimed at deterring police misconduct," and that other government officials,
including magistrates, court employees, and legislators, "are not the
focus of the rule." Krull, 480 U.S. at 350; see Evans, 514 U.S. at
14; Leon, 468 U.S. at 916. Those cases thus establish that the exclusion
ary rule's deterrent rationale does not apply outside of the police force;
they do not hold that the deterrent rationale applies with equal force whenever
a Fourth Amendment violation is caused by the actions of any person who
works for a police department. And no decision of this Court holds that
the deterrent rationale applies to clerical work ers who engage in back-office
police recordkeeping. In deed, the Court has repeatedly declined to apply
the exclusionary rule when a Fourth Amendment violation was attributable
solely to the actions of even police officers in the field.
For example, the Court has "repeatedly declined to ex tend the exclusionary
rule to proceedings other than crimi nal trials," Scott, 524 U.S. at
363, and it has done so without regard to the identity of the government
officials who were responsible for the underlying Fourth Amendment viola
tion. The Court has determined, for example, that the exclusionary rule
should not apply in grand jury proceed ings, Calandra, 414 U.S. at 347-352;
on federal habeas cor pus in situations where a state prisoner has already
been afforded a full and fair opportunity to litigate a Fourth Amendment
claim, Stone, 428 U.S. at 494; in parole revoca tion proceedings, Scott,
524 U.S. at 364-369; in civil deporta tion proceedings, Lopez-Mendoza, 468
U.S. at 1050; and in federal civil tax proceedings where evidence was illegally
seized by state officials, Janis, 428 U.S. at 459-460. In all but one of
those cases, the underlying conduct that was alleged to violate the Fourth
Amendment had been commit ted by law enforcement officers. Scott, 524 U.S.
at 360; Stone, 428 U.S. at 469-470, 472; Janis, 428 U.S. at 434-437; Calandra,
414 U.S. at 340-341; see also Lopez-Mendoza, 468 U.S. at 1035 (immigration
Even in criminal prosecutions, the Court has never ac cepted the notion
that suppression is appropriate whenever the person most directly responsible
for a Fourth Amend ment violation was affiliated with the police. See Scott,
524 U.S. at 364 n.4 (stating that the Court has "significantly limited
[the exclusionary rule's] application even in" the context of criminal
trials). The Court has repeatedly reaf firmed that a criminal defendant
who was not the victim of an unlawful search may not invoke the exclusionary
rule to obtain suppression of evidence seized in violation of another person's
Fourth Amendment rights. See, e.g., Rakas v. Illinois, 439 U.S. 128, 133-134
(1978); Alderman, 394 U.S. at 171-176. The Court has likewise declined to
order sup pression of evidence unlawfully seized by police officers in situations
where the evidence independently was, or inevi tably would have been, discovered
anyway, Murray v. United States, 487 U.S. 533, 541 (1988); Nix, 467 U.S.
at 444, and it has held that violations by police officers of the constitutional
"knock-and-announce" rule do not require suppression of evidence
found during the resulting search, Hudson, 547 U.S. at 590-599. Even when
illegally seized evidence is excluded from the government's case in chief,
the Court has held that the evidence may still be used to impeach a defendant's
own testimony on direct examina tion, Walder v. United States, 347 U.S.
62, 65 (1954), or to impeach a defendant's statements made in response to
proper cross-examination reasonably suggested by the de fendant's direct
examination, United States v. Havens, 446 U.S. 620, 627-628 (1980).
In short, the Court has declined to adopt any sort of "per se"
or "'but for' rule" (Brown, 422 U.S. at 603 (citation omit ted))
that evidence must invariably be suppressed when ever police personnel are
at fault. Rather, in the context of police errors as elsewhere, "application
of the [exclusion ary] rule has been restricted to those areas where its
reme dial objectives are thought most efficaciously served." Calandra,
414 U.S. at 348.
2. Police officers are generally entitled to rely upon in formation they
receive from fellow officers. See, e.g., Ven tresca, 380 U.S. at 111. In
some situations, police may be charged with the knowledge of certain of
their fellow offi cers. Petitioner errs in asserting (Br. 29), however,
that "settled Fourth Amendment precedent" establishes any "general
principle" that a police officer who makes an ar rest or conducts a
search "is charged with [the] collective knowledge" of every other
law enforcement official.
a. Petitioner relies most heavily (Br. 26-28) on Whiteley v. Warden, 401
U.S. 560 (1971). This Court has expressly stated, however, that Whiteley's
"precedential value re garding application of the exclusionary rule
is dubious." Evans, 514 U.S. at 13; see Overton v. Ohio, 534 U.S. 982,
985 (2001) (Breyer, J., respecting the denial of the petition for a writ
of certiorari) (describing Evans as "casting doubt on Whiteley's exclusionary
In any event, the situation presented here differs from Whiteley in at least
two significant respects. First, White ley involved a decision by a county
sheriff to seek an arrest warrant based on a complaint that manifestly failed
to es tablish probable cause. 401 U.S. at 561-569; see Leon, 468 U.S. at
923 n.24 (describing the warrant application at issue in Whiteley as a "'bare
bones' affidavit"). This case, in con trast, involves a negligent failure
by an unknown clerical employee in the Dale County Sheriff's Department
to up date the department's records. See id. at 911 (stating that "an
assessment of the flagrancy of the police misconduct constitutes an important
step in the calculus" of whether the costs of applying the exclusionary
rule outweigh its ben efits).
Second, the connection between the underlying culpable conduct and the ultimate
arrest is far more attenuated here than in Whiteley. In Whiteley, the sheriff
who had obtained the invalid warrant immediately broadcast a statewide bul
letin that led directly to the defendant's arrest on the very same day that
the invalid warrant had been issued. 401 U.S. at 562-563. Here, in contrast,
a substantial delay separated the underlying negligent mistake and petitioner's
arrest, see J.A. 60 (stating that the warrant for petitioner's arrest had
been recalled on February 2, 2004), and no "in stigating officer"
"rel[ied] on fellow officers to make the arrest," Whiteley, 401
U.S. at 568; see Illinois v. Andreas, 463 U.S. 765, 771 n.5 (1983) (describing
Whiteley's holding as applicable to situations "where law enforcement
authori ties are cooperating in an investigation"). "Whiteley
and its progeny do not support [the] broad proposition that all information
received by a police department * * * must be imputed to every officer in
the department," United States v. Santa, 180 F.3d 20, 28 (2d Cir.),
cert. denied, 528 U.S. 943 (1999), much less to officers in a wholly different
department who never spoke with, or received any commu nication from, the
person with the relevant knowledge.13
b. Petitioner also partially quotes (Br. 28) this Court's statement in United
States v. Hensley, 469 U.S. 221 (1985), that "Whiteley supports the
proposition that, when evi dence is uncovered during a search incident to
an arrest in reliance merely on a flyer or bulletin, its admissibility turns
on whether the officers who issued the flyer pos sessed probable cause to
make the arrest." Id. at 231 (first emphasis added). As noted previously,
however, this case does not involve a situation in which an officer who
lacked information sufficient to establish probable cause sought to evade
the Fourth Amendment's requirements by directing a fellow officer to make
an arrest. In addition, "[b]ecause the Hensley Court determined that
there had been no Fourth Amendment violation, the Court never considered
whether the seized evidence should have been excluded." Evans, 514
U.S. at 12 (citation omitted). Finally, to the extent that language in Hensley
can be read to equate the admissibility of a given piece of evidence with
the determi nation of whether that evidence was acquired in violation of
the Fourth Amendment, the Court has "long since rejected that approach."
Hudson, 547 U.S. at 591; see Evans, 514 U.S. at 13.
c. Petitioner's reliance (Br. 28-29) on Elkins v. United States, 364 U.S.
206 (1960), fares no better. Elkins was decided a year before Mapp, whose
"[e]xpansive dicta" about the scope of the exclusionary rule have
been rejected by later decisions. Hudson, 547 U.S. 591. Like Mapp, Elkins
expressly equated the question of whether the Fourth Amendment has been
violated with whether the exclusionary rule should be applied, 364 U.S.
at 213-215, and it cited "the imperative of judicial integrity"
as an inde pendent reason for requiring suppression of evidence, id. at
222. Neither proposition has survived later review. See Hudson, 547 U.S.
at 591; note 4, supra. And to the extent that Elkins suggested that suppression
is warranted when ever it would "serve the central deterrent purposes
of the exclusionary rule," Pet. Br. 29, later cases recognize that
the existence of some possible deterrence benefits repre sents the beginning,
not the end, of the analysis about whether suppression is warranted in a
particular situation. Hudson, 547 U.S. at 596; Leon, 468 U.S. at 910; Calandra,
414 U.S. at 350.
d. Petitioner also contends that "this Court's approach to other areas
of criminal procedure" (Br. 29)-specifically, the doctrines associated
with Brady v. Maryland, 373 U.S. 83 (1963), and Edwards v. Arizona, 451
U.S. 477 (1981)- suggests that it is appropriate to charge an arresting
officer with the knowledge of all other law enforcement personnel for purposes
of the Fourth Amendment exclusionary rule. See Pet. 28-29 (making the same
claim with respect juris prudence under Miranda v. Arizona, 384 U.S. 436
(1966)). This Court's decisions, however, confirm that jurisprudence developed
under different constitutional provisions is not interchangeable. See Brown,
422 U.S. at 601 ("The exclus ionary rule * * * when utilized to effectuate
the Fourth Amendment, serves interests and polices that are distinct from
those it serves under the Fifth."); Dickerson v. United States, 530
U.S. 428, 441 (2000) ("unreasonable searches under the Fourth Amendment
are different from unwarned interrogation under the Fifth Amendment");
Withrow v. Williams, 507 U.S. 680, 686-695 (1993) (restrictions on ex ercise
of federal habeas jurisdiction in Fourth Amendment cases do not apply to
claims under Miranda); Oregon v. Elstad, 470 U.S. 298, 303-304 (1985) (refusing
to apply the traditional "fruits" doctrine developed in Fourth
Amend ment cases to the Miranda context, due to the "fundamen tal differences"
between two doctrines).
Even if non-Fourth Amendment decisions were relevant here, the doctrines
on which petitioner relies are not analo gous to this situation. Brady and
Kyles v. Whitley, 514 U.S. 419 (1995) (Pet. Br. 29), involved a prosecutor's
obligation "to disclose evidence favorable to the defendant."
Kyles, 514 U.S. at 432; see id. at 437. This case, in contrast, in volves
no "affirmative duty." Id. at 432; see Santa, 180 F.3d at 28 n.3.
In addition, although a prosecutor has a duty under Brady "to learn
of any favorable evidence known to the others acting on the government's
behalf in the case, including the police," Kyles, 514 U.S. at 437,
that duty "does not extend to information possessed by govern ment
agents not working with the prosecution," United States v. Hall, 434
F.3d 42, 55 (1st Cir. 2006). Because the unknown clerical employee who failed
to update the Dale County Sheriff's Department computer system was not "working
with" the Coffee County Sheriff's Department officers who made the
arrest-much less the United States Attorney's Office that ultimately brought
this prosecu tion-this Court's Brady jurisprudence provides no support to
petitioner, even by analogy.
Finally, both of the examples cited by petitioner involve situations where
the conduct in question-failure to disclo sure exculpatory evidence to the
defense, and introduction of statements obtained from a suspect who has
expressed a desire to deal with the police only through counsel, re spectively-violates
the commands of the Constitution as construed by this Court. See Kyles,
514 U.S. at 434 (noting the prosecutor's "constitutional duty"
to disclose material exculpatory evidence); Janis, 428 U.S. at 443 (noting
"the Fifth Amendment's direct command against the admission of compelled
testimony"). In contrast, "the government's use of evidence obtained
in violation of the Fourth Amend ment does not itself violate the Constitution,"
Scott, 524 U.S. at 362, and "[t]he exclusionary rule provides no rem
edy for completed wrongs," Lopez-Mendoza, 468 U.S. at 1046.
9. D. This Case Presents No Opportunity To Consider Large-Scale Information
Systems Accessible By Multiple Law Enforce ment Agencies
Petitioner and his amici contend that suppression is nec essary here because
of the increasing use of large-scale computerized databases that are accessible
by multiple law enforcement agencies. Pet. Br. 35-37 & nn.12-13, 40-42
& n.15; EPIC Amicus Br. 8-36; NACDL Amicus Br. 21-24. In Evans, various
members of this Court noted that develop ment as well. 514 U.S. at 17-18
(O'Connor, J., concurring); id. at 18 (Souter, J., concurring); id. at 22
(Stevens, J., dis senting); id. at 23, 26-29 (Ginsburg, J., dissenting).
The use of computer technology in law enforcement raises impor tant issues.
But those issues are not presented by the facts of this case. No record
was developed or findings made about them below. And the presentations by
petitioner and its amici are both incomplete and skewed. Accordingly, the
Court should reject petitioner's invitation to fashion a broad rule of exclusion
based on considerations that are inapplica ble to the facts of this case.
Br. in Opp. 24.
1. The record indicates that the Dale County Sheriff's Department created
a database for in-office use in order to keep track of outstanding warrants
in that county. Neither the Dale County Clerk's Office (which is in the
same build ing as the Dale County Sheriff's Department, J.A. 59), nor Coffee
County Sheriff's Department personnel are able to access the Dale County
Sheriff's Department database. J.A. 34, 39-41, 45, 55. Accordingly, the
use of computer technology in this case did not "generate * * * new
possi bilities of error" or "amplif[y] [the] effect" of the
record keeping error that resulted in petitioner's arrest. Evans, 514 U.S.
at 26 (Ginsburg, J., dissenting). The events of this case presumably would
have played out precisely the same if Dale County had used handwritten notecards
in a file box to keep track of its own outstanding warrants. See J.A. 59-
61 (error occurred because unidentified person who re turned the warrant
to the Clerk's Office failed to update the database to reflect that the
warrant had been recalled).
Not only does this case itself not involve a "powerful, computer-based
recordkeeping system," Evans, 514 U.S. at 17 (O'Connor, J., concurring),
no record was made below about such systems. The testimony at the two suppression
hearings focused exclusively on the circumstances of peti tioner's arrest
and the non-computer-based ways informa tion is shared between the Dale
County Clerk's Office, the Dale County Sheriff's Department, and the Coffee
County Sheriff's Department. Petitioner presented no testimony or other
evidence about the FBI's National Crime Informa tion Center (NCIC), state
fusion centers (EPIC Amicus Br. 9-13), or any of the various other databases
discussed by Amicus EPIC (at 16-28), nor did the district court make any
findings on such issues. Because this Court is one "of re view, not
of first view," Cutter v. Wilkinson, 544 U.S. 709, 718 n.7 (2005),
it would be inappropriate to craft a rule based on factual contentions that
are not at issue here and that have not been subject to adversarial testing
in the courts below.
2. The soundness of not deciding this case by reference to factual contentions
that were not tested below, and that have no bearing on the particular police
conduct at issue, is confirmed by the incomplete and skewed presentation
about various FBI databases presented by petitioner and amicus EPIC. We
provide the following account based on information from the FBI in order
to give the Court a more balanced picture.
a. The FBI's Criminal Justice Information Services (CJIS) Division manages
two recordkeeping systems: the NCIC, and the Fingerprint Identification
Records System (FIRS). The NCIC is supported by the NCIC System, and the
FIRS is supported by Integrated Automated Finger print Identification System
(IAFIS) and the Interstate Identification Index (III).
The NCIC is an automated database of criminal justice information that operates
under a shared management con cept between the FBI and state and federal
criminal justice agencies. It is available to nearly every law enforcement
agency in the Nation. The FBI maintains the host com puter while providing
a telecommunications network to other federal criminal justice agencies
and state criminal justice agencies in all 50 States, four territories,
and the District of Columbia. Criminal justice agencies enter re cords into
the NCIC, and those records are, in turn, acces sible to law enforcement
agencies nationwide. The NCIC consists of a number of separate files. Seven
property files contain records for articles, boats, guns, license plates,
se curities, vehicles, and vehicle and boat parts. The NCIC also includes
11 "person files," including Foreign Fugitive, Missing Person,
Violent Gang and Terrorist Organization, and Wanted Person files. NCIC person
files are organized by name and other descriptive data.
IAFIS, III, and FIRS are fingerprint-based systems, though III is accessed
using name-based queries. The overwhelming majority of information in those
systems consists of criminal history information on arrests and con victions,
but they also contain identification information on certain other persons,
including members of the military and federal civilian employees.
b. Petitioner and his amici fail to distinguish between the NCIC's name-based
Wanted Person File, the system in which outstanding warrants are tracked,
and fingerprint- based criminal history record systems.14 A number of the
statements cited by petitioner and EPIC about problems in recordkeeping
involve criminal history records, rather than the NCIC's Wanted Person File.15
In addition, one of the studies cited by petitioner (Br. 36 n.13) involved
state-man aged rather than federally-managed criminal history sys tems.
Bureau of Justice Statistics, U.S. Dep't of Justice, Survey of State Criminal
History Information Systems, 2003, at 8 (Feb. 2006) <http://www.ojp.usdoj.gov/bjs/pub/
c. With respect to the NCIC Wanted Person File, the three reports cited
by petitioner and his amici are all at least two decades old,16 and they
predate a number of im portant reforms that are expressly designed to prevent
the sort of mistaken arrest that occurred here. In 1975, the FBI established
what is now known as the Criminal Justice Information Services Advisory
Policy Board (Policy Board), which consists of representatives from state
and local crimi nal justice agencies; judges, prosecutors, and corrections
officials; a representative of federal agencies participating in the CJIS
systems; and representatives of criminal justice professional associations.
28 C.F.R. 20.35(b); 40 Fed. Reg. 22,114-22,115 (1975). The purposes of the
Policy Board is "to recommend to the FBI Director general policy with
respect to the philosophy, concept, and operational princi ples of various
criminal justice information systems man aged by the FBI's CJIS Division."
28 C.F.R. 20.35(a). The Policy Board, in turn, employs numerous working
groups and subcommittees made up of subject-matter experts that meet biannually
and continuously forward recommenda tions to the Policy Board. In 1999,
the FBI completed a major overhaul of the NCIC, which resulted in the issuance
of a new operating manual, which is itself continuously be ing updated.
Under the current system, numerous checks are de signed to prevent mistaken
arrests. Only approved crimi nal justice agencies may enter information
about outstand ing criminal warrants into the NCIC's Wanted Person File,
and there is no requirement that a participating criminal justice agency
enter all of its outstanding warrants. In ad dition, NCIC policy requires
a law enforcement agency that receives a record as a result of an NCIC inquiry
to make contact with the entering agency to verify that the informa tion
is accurate and up-to-date before making an arrest.
When warrants are entered, several safeguards seek to ensure that information
is accurately entered. The data base itself is programed to recognize and
reject certain kinds of common errors with regard to data entry (for ex
ample, an invalid vehicle identification number), and to prompt the entering
official to correct those errors before proceeding. NCIC policy also requires
a "Second Party Check" where an individual other than the person
who ini tially entered the information must double-check all infor mation
upon its entry into the database.
Once a record has been entered into the Wanted Person File, the FBI uses
a rolling validation system to ensure its continuing accuracy. Every 30
days, the NCIC System generates lists of all active records that were entered
within 60-90 days previously and sends those lists to the appropriate CJIS
systems agency, which serves as the FBI's point of contact in each state
and various federal agencies. The entering agency is then required to verify
the record's accuracy, completeness, and continuing valid ity, the last
step of which requires it to check with other entities, including courts
and prosecutors. If a record is not properly validated, the relevant CJIS
systems agency is required to cancel it. After this initial round of validation,
NCIC policy requires entering agencies to re-validate each active record
on a yearly basis.
FBI staff also conduct regular audits to ensure informa tion accuracy. Every
three years, the FBI conducts a com prehensive audit of every state CJIS
systems agency. The auditors visit the CJIS systems agency itself, as well
as a number of local agencies within the State. In 2007, for ex ample, the
FBI conducted 23 audits and visited 273 local agencies. During the audits,
the audit team conducts an administrative interview and reviews a random
sample of NCIC records to ensure that they are complete, accurate, and valid.
As part of the data quality review, the audit team also contacts courts
to ensure the validity of the information contained in the random sample.
Statistics maintained by the FBI demonstrate that these and other procedures
lead to the regular purging of out-of- date information and have significantly
reduced the number of errors in the NCIC's Wanted Person File. Although
the total number of records is continuously changing, the FBI advises that,
as of July 1, 2008, the Wanted Person File contained 1,543,493 records.
The FBI further advises that, in 2007 alone, 1,799,462 records were cleared
or cancelled from the Wanted Person File. Finally, the FBI advises that
records reviewed during the current audit cycle sug gest that the Wanted
Person File currently has an error rate of 2.86%, with errors being defined
to include situa tions where the warrant was invalid, the record contained
inaccurate data, or the case file supporting the warrant could not be located.
Thus, although the record here is not adequate to permit a comprehensive
review of all federal and state record keeping systems, the available information
undermines rather than supports petitioner's contention about the in centives
of law enforcement officials to ensure the accuracy of computerized arrest
records and the need for the "severe sanction" of exclusion. Evans,
514 U.S. at 14. The available information, consistent with the record in
this case, instead supports the conclusion that suppressing evidence because
of a one-time clerical error in a generally reliable law en forcement system
cannot be justified by any need for incre mental deterrence. Therefore,
as in Evans, no sufficient benefits of suppression outweigh the high cost
of excluding probative evidence of criminal conduct.
The judgment of the court of appeals should be affirmed. Respectfully submitted.
GREGORY G. GARRE
Acting Solicitor General
MATTHEW W. FRIEDRICH
Acting Assistant Attorney
MICHAEL R. DREEBEN
Deputy Solicitor General
TOBY J. HEYTENS
Assistant to the Solicitor
1 After being pulled over, petitioner exited his truck and walked towards
the officers, at which point Deputy Bradley stated that peti tioner was
under arrest. J.A. 20. Petitioner then turned and started walking back towards
his truck, but he was stopped by Investigator Anderson. J.A. 20. The search
of petitioner's truck occurred after petitioner had been handcuffed and
placed in the officers' car. J.A. 20- 22.
On October 7, 2008, this Court will hear argument in Arizona v. Gant, No.
07-542, which presents the following question: "Does the Fourth Amendment
require law enforcement officers to demonstrate a threat to their safety
or a need to preserve evidence related to the crime of arrest in order to
justify a warrantless vehicular search incident to ar rest conducted after
the vehicle's recent occupants have been arrested and secured?" Petitioner
has not made a separate challenge to the search of his vehicle at any point
during this litigation, including in his brief on the merits in this Court,
which was filed more than two months after the Court granted certiorari
2 At the initial suppression hearing, Dale County warrant clerk Mor gan
answered "[s]everal times" when asked "how many times have
you had or has Dale County had problems, any problems with
communicat[ing] about warrants." J.A. 42. At the supplemental hearing,
Morgan denied having made that statement, and stated: "I have never,
that I can immediately remember ever had any problem with communication
whatsoever between Coffee County Sheriff's Office, Sandy [Pope], and myself."
J.A. 61-62. After reviewing the court reporter's tape, the district court
concluded that Morgan's state ments were "confusing and essentially
unhelpful" because "it is unclear whether Morgan and her questioner
were talking about communication problems between the Dale County Sheriff's
Department and the Coffee County Sheriff's Department or between the Dale
County Sheriff's Department and the Dale County Clerk's Office." Pet.
3 This case has been litigated on the assumption that the question is whether
the exclusionary rule may properly be applied in the circum stances presented
here; the government has not contended that peti tioner's arrest was constitutional.
Br. in Opp. 7-25. The Court should "take the case as it comes to [it]."
United States v. Leon, 468 U.S. 897, 905 (1984); accord Arizona v. Evans,
514 U.S. 1, 6 n.1 (1995).
4 In earlier cases, the Court suggested that the exclusionary rule is also
justified by principles of "judicial integrity." Terry v. Ohio,
392 U.S. 1, 12 (1968); Elkins, 364 U.S. at 222-223. The Court has since
explained, however, that those principles require "essentially the
same [inquiry] as the inquiry into whether exclusion would serve a deterrent
purpose," United States v. Janis, 428 U.S. 433, 459 n.35 (1976), and
that the judicial integrity rationale does not furnish "an independent
basis for excluding challenged evidence," Michigan v. Tucker, 417 U.S.
433, 450 n.25 (1974). See United States v. Peltier, 422 U.S. 531, 536-539
(1975); Calandra, 414 U.S. at 355-356 & n.11.
5 Petitioner asserts (Br. 47 n.16) that "[i]t would be difficult for
a defendant in an individual criminal proceeding to ascertain the internal
recordkeeping procedures of the arresting agency and establish that the
recordkeeping system had a sufficiently well-known history of errors to
render reliance on it by the arresting officer objectively unreasonable."
Nothing precludes a defendant, however, from asking the arresting officers
about their knowledge of recordkeeping errors or from questioning warrant
clerks about the rate of errors in the relevant system. Indeed, the government
elicited that information here. J.A. 27, 33, 46, 61-62. This Court in Evans,
moreover, seemingly contemplated that a showing could have been made that
an officer's reliance on a court record system was unreasonable, 514 U.S.
at 15-16, and Justice O'Connor's concurrence explicitly stated that "it
would not be reason able for the police to rely, say, on a recordkeeping
system, their own or some other agency's, that has no mechanism to ensure
its accuracy over time and that routinely leads to false arrests,"
id. at 17 (O'Connor, J., concurring). This Court thus envisioned the feasibility
of proving objec tive unreasonableness based on systemic problems in a recordkeeping
system. In any event, there is no evidence of any systemic problems with
regard to the recordkeeping system in this case, and to the extent that
building a record of systemic problems may be difficult in a single criminal
case, that point underscores that such issues would be better addressed
through a civil action, with its more wide-ranging discovery, than through
a suppression motion.
6 Petitioner has not challenged "the objective reasonableness"
of the actions of any officers "who originally obtained [the later
recalled war rant for petitioner's arrest] or who provided information material
to the probable-cause determination," Leon, 468 U.S. at 923 n.24, so
there is no need to consider deterrence with respect to them.
7 In Michigan v. Tucker, 417 U.S. 433, 447 (1974), the Court ob served that
"[t]he deterrent purpose of the exclusionary rule necessar ily assumes
that the police have engaged in willful, or at very least negligent, conduct
which has deprived the defendant of some right." The Court did not
state that deterrence works equally well with respect to those fundamentally
different kinds of wrongdoing, and it did not say that the existence of
any degree of negligence, no matter how minor or isolated, invariably justifies
the "massive remedy" (Hudson, 547 U.S. at 599) of suppression.
"Negligence in law ranges from inadvertence that is hardly more than
accidental to sinful disregard of the safety of others." Black's Law
Dictionary 1062 (8th ed. 2004) (citation omitted). In its customary and
ordinary sense, the term "negligent" connotes more a habitual
failure to exercise proper care than a single isolated mistake. Webster's
Third New International Dictionary 1513 (1993) (defining "negligent"
as "that is marked by or given to neglect: that is neglectful esp.
habitually or culpably").
8 Petitioner also posits (Br. 38) a scenario where one police officer "tell[s]
colleagues that a warrant was in force, when in fact, it had not yet even
been sought." This Court has made clear, however, that "an assessment
of the flagrancy of the police misconduct constitutes an important step
in the calculus" of whether the costs of applying the exclusionary
rule outweigh its benefits. Leon, 468 U.S. at 911. A case involving a law
enforcement officer's deliberate deception of another officer differs entirely
from a case involving an isolated and negligent error in recordkeeping,
on which an officer reasonably relies.
9 See, e.g., Peña-Borrero v. Estremeda, 365 F.3d 7, 13 (1st Cir.
2004) (reversing dismissal where officers arrested "[d]espite facially
authen tic documentary evidence that [a previously issued] warrant was no
longer effective, and with knowledge that they had failed to follow pre
cautionary procedure to assure its vitality"); Clanton v. Cooper, 129
F.3d 1147, 1156-1157 (10th Cir. 1997) (affirming denial of summary judgment
to fire marshal agent who knowingly transmitted false state ments via the
National Crime Information Center); Milligan v. United States, No. 3:07:1053,
2008 WL 2280178, at *10 (M.D. Tenn. May 30, 2008) (denying summary judgment
where "[a]n objective reading of the arrest file reveals that the officers'
reliance on that file, and their failure to check on the warrants themselves,
was unreasonable"); Willis v. Mullins, 517 F. Supp. 2d 1206, 1227 (E.D.
Cal. 2007) (denying qualified immunity because whether reliance on a list
stating that plaintiff was still on parole "was reasonable under the
circumstances cannot be de termined as a matter of law from the facts provided");
McMurry v. Sheahan, 927 F. Supp. 1082, 1088 (N.D. Ill. 1996) (denying motion
to dismiss where plaintiff had sufficiently alleged that defendants were
aware "of the many problems which plague[d]" the relevant data
sys tems but "chose to ignore those problems"); Gray v. Sheahan,
No. 96 C 220, 1996 WL 672255, at *3 (N.D. Ill. Nov. 17, 1996) (denying motion
to dismiss where plaintiff had sufficiently alleged that defendant "knew
that the computer system inaccurately reported the status of war rants,"
but "did nothing to correct the situation"); Kirk v. Hesselroth,
707 F. Supp. 1149, 1152, 1155 (N.D. Cal. 1988) (denying summary judgment
to police inspector who caused plaintiff's subsequent arrest by entering
inaccurate information into a computer database), aff'd, 914 F.2d 262 (9th
10 See, e.g., Berg v. County of Allegheny, 219 F.3d 261, 275-277 (3d Cir.
2000) (per curiam) (holding municipality not entitled to summary judgment
where it employed a system for issuing warrants "where the slip of
a finger could result in wrongful arrest and imprisonment"), cert.
denied, 531 U.S. 1072, and 531 U.S. 1145 (2001); McMurry, 927 F. Supp. at
1091 (denying motion to dismiss where plaintiff had pled that a mu nicipality's
policymakers had "actual knowledge" for more than a dec ade "that
the warrant computer systems at issue [were] not reliable" but "fail[ed]
to train its officers to check for" errors before making arrests and
took "no steps to remedy its procedures for investigating the validity
of warrants shown by its computer to be outstanding"); Rogan v. City
of Los Angeles, 668 F. Supp. 1384, 1387-1398 (C.D. Cal. 1987) (holding that
city was responsible as a matter of law for plaintiff's repeated arrests
pursuant to a computer record that failed to describe suspect with particularity).
11 This Court has noted that efforts by "state and local governments
[to] manipulate the titles of local officials in a blatant effort to shield
the local governments from liability [under Section 1983] * * * are al ready
foreclosed by" City of St. Louis v. Praprotnik, 485 U.S. 112 (1988).
See McMillian v. Monroe County, 520 U.S. 781, 796 (1997).
12 For the same reason, petitioner errs in suggesting (Br. 39-40) that this
Court should require suppression to avoid undermining efforts by state courts
"to regulate [state] police departments" and ensure com pliance
with "the state constitution, evidence code, or judicial policy."
This Court rejected an analogous claim in Moore, concluding that man dating
suppression as a matter of federal law in order to deter viola tions of
state law would undermine a State's ability to tailor its reme dies for
violations of its own law. 128 S. Ct. at 1606. A State may elect to suppress
evidence in its own courts in order to deter violations of state law, but
that would provide no justification for varying federal law protections
or requiring every other State to do the same. In any event, the state court
decisions cited by petitioner (Br. 39-40) are based on those courts' erroneous
reading of this Court's decisions in Leon and Evans.
13 The courts of appeals have generally followed the same approach in determining
whether information possessed by one officer may be considered in determining
whether an arrest by another officer was supported by probable cause. Although
the lower courts employ some what different verbal formulations, "even
courts that impute knowledge among officers working closely together will
not do so absent a close working nexus between the officers during the stop
or arrest." United States v. Shareef, 100 F.3d 1491, 1504 (10th Cir.
1996). Cf. United States v. Colon, 250 F.3d 130, 135-137 (2d Cir. 2001)
(declining to impute knowledge of a civilian 911 operator employed by the
police department to dispatching or arresting officers).
14 Amicus EPIC cites nothing in support of its flat assertion (at 14) that
"State criminal history records * * * are fed into the NCIC."
The FBI advises that, in at least one State, certain biographical data on
a subject for whom a state criminal history record has previously been established
may be used to populate certain biographical fields in a state-maintained
wanted person file, which could, in turn, potentially be forwarded to the
NCIC Wanted Person File. In all cases, however, only the criminal justice
agency that actually obtained a warrant may enter information about that
warrant into the NCIC's Wanted Person File.
15 Bureau of Justice Statistics, U.S. Dep't of Justice, National Crim inal
History Improvement Program (last modified May 21, 2008) <http://www.ojp.usdoj.gov/bjs/nchip.htm>
(EPIC Amicus Br. 15 & n.4); Bureau of Justice Statistics, U.S. Dep't
of Justice, Improving Criminal History Records for Background Checks: National
Criminal History Improvement Program (NCHIP) (May 2003) <http://www.
ojp.gov/bjs/ pub/pdf/ichrbc.pdf> (EPIC Amicus Br. 15-16 & n.5); Peter
M. Brien, U.S. Dep't of Justice, Improving Access to and Integrity of Criminal
History Records, 11, 13 (July 2005) <http://www.ojp.usdoj. gov/bjs/pub/
pdf/iaichr.pdf>(EPIC Amicus Br. 14-15); Bureau of Justice Statistics,
U.S. Dep't of Justice, Use and Management of Crim inal History Record Information:
A Comprehensive Report, 2001 Up date 38 (Dec. 2001) <http://www.ojp.usdoj.gov/bjs/abstract/umchri01.
htm> (EPIC Amicus Br. 14-15).
16 Congress of the United States, Office of Technology Assessment, Federal
Government Information Technology: Electronic Record Sys tems and Individual
Privacy 133-134 (June 1986) (Pet. Br. 36 n.13); Kenneth C. Laudon, Data
Quality and Due Process in Large Interor ganizational Record Systems, Communications
of the ACM, Vol. 29, No.1, at 4, 8 (Jan. 1986) (Pet. Br. 35 n.12); Secretary's
Advisory Comm. on Automated Personal Data Systems, Dep't of Health, Educ.
& Wel fare, Records, Computers and the Rights of Citizens 17-19 (July
1973) (EPIC Amicus Br. 29-30).