Justices on the current Supreme Court have made no secret of their desire to carve more exceptions out of the nearly 100-year-old exclusionary rule. On Tuesday, the court accepted a new case that could provide a route toward that goal.
The question in the case is whether the list of exceptions should be expanded to include evidence obtained from a search undertaken by officers relying on a careless record-keeping error by the police.
In this instance, officers in Coffee County, Ala., arrested a man, Bennie Dean Herring, in 2004 after being informed by the Sheriff’s Department in neighboring Dale County that he was the subject of an outstanding warrant. But the warrant, although still in Dale County’s computerized database, had in fact been withdrawn five months earlier. In the 10 or 15 minutes it took for the Dale County officers to realize their error, the Coffee County officers had already stopped Mr. Herring, handcuffed him, and searched him and his truck, finding methamphetamine and an unloaded pistol.
He was convicted in a federal prosecution, with both the Federal District Court in Montgomery, Ala., and the United States Court of Appeals for the 11th Circuit, in Atlanta, refusing his request to suppress the evidence.
There was no dispute that Mr. Herring’s arrest lacked probable cause, and that both the arrest and the search were therefore unconstitutional. But the 11th Circuit, citing the Supreme Court’s most recent discussion of the exclusionary rule, in a case from 2006, said suppression of reliable evidence placed a heavy toll on the criminal justice system and should be used as a last resort.
Often in the past, the Supreme Court’s acceptance of a criminal defendant’s appeal suggested that the court was inclined to overturn the conviction. But this appeal, Herring v. United States, No. 07-513, which was prepared as a student project of Stanford Law School’s Supreme Court litigation clinic, might turn out to be a case for Mr. Herring of “watch out what you wish for.”
In the 2006 decision to which the 11th Circuit referred, Hudson v. Michigan, five justices expressed deep reservations about the utility of the exclusionary rule. That 5-to-4 decision refused to apply the exclusionary rule to evidence found by police officers who burst into a Detroit man’s home to execute a search warrant without first knocking and giving the man a chance to respond. Justice Antonin Scalia’s majority opinion appeared written to solicit further challenges to the rule’s application.
These were among the other developments on Tuesday as the justices returned from a monthlong recess:
Wiretapping Case
Without comment, the court turned down a challenge to the National Security Agency’s program of electronic surveillance without warrants. The program, devised to intercept communications into and out of the United States with people linked to Al Qaeda, began in 2001, shortly after the Sept. 11 attacks, and was conducted in secrecy until The New York Times revealed its existence in December 2005.
The American Civil Liberties Union brought a lawsuit in early 2006 on behalf of a group of lawyers, writers and organizations, arguing that the program violated federal law and chilled their ability to communicate with their clients and overseas contacts. Judge Anna Diggs Taylor of Federal District Court in Detroit ordered the government to stop the surveillance in a decision that the United States Court of Appeals for the Sixth Circuit overturned last July.
The appeals court ruled that because the government had properly withheld information about the program by invoking a doctrine known as the state secrets program, the plaintiffs could not show that their communications had been monitored and therefore lacked standing to bring the case.
The Bush administration discontinued the program in early 2007 and resumed it with Congressional authorization several months later. It urged the Supreme Court to turn down the appeal, American Civil Liberties Union v. National Security Agency, No. 07-468, on the ground that not only was the Sixth Circuit correct, but also that the case was now moot.
The statute authorizing the program expired last week in a Congressional standoff over immunity for telecommunications companies that participated in the surveillance. The justices might have been reluctant to enter a debate that remains a live issue. Another case challenging the program, and several dozen suits against the telecommunications companies, remain pending in federal courts in California.
Union Dues
The court agreed to decide whether a public employees’ labor union must deduct certain litigation expenses from the “agency fee” that nonunion members must pay in lieu of full union dues. Twenty nonunion employees who work in Maine’s state government assert that they have been improperly charged for litigation expenses that did not directly relate to the bargaining unit.
The case, Locke v. Karass, No. 07-610, is the latest in a long series of
cases brought by the National Right to Work Legal Defense Foundation, an
antiunion organization, disputing various financial obligations placed on
employees who are covered by a collective bargaining agreement but who
object to union activities.