The court heard two more such cases on Tuesday, and, as usual, the justices struggled to identify clear rules to separate lawful searches from unconstitutional ones.
But these cases were more interesting than usual, thanks to a discussion of a larger theme that has engaged several Supreme Court justices in recent years: does the exclusionary rule, which requires the suppression of some evidence produced by police misconduct, still make sense?
The first case concerned an Alabama man named Bennie Dean Herring, who was arrested, searched and found with methamphetamines and a pistol. Mr. Herring argued that the evidence should be thrown out because the officers who arrested him, from Coffee County, Ala., had relied on false information from the computer files of the police in neighboring Dale County.
That database showed an outstanding warrant for Mr. Herring’s arrest. In fact, the warrant had been withdrawn five months before.
The case, Herring v. United States, No. 07-513, seems quite likely to turn on whether the court decides to extend a 1995 decision, Arizona v. Evans, which recognized an exception to the exclusionary rule for arrests resulting from erroneous computer records kept by court employees. Michael R. Dreeben, a deputy United States solicitor general, argued that the same rule should apply to records kept by police departments, at least so long as the errors are isolated rather than systemic.
Pamela S. Karlan, representing Mr. Herring, said the police and the courts should be treated differently. “As long as it’s police error,” Ms. Karlan said, “it counts against the police.”
“If you announce that police error is going to lead to the suppression of evidence,” she added, “the police will do a better job of maintaining their records.”
Chief Justice John G. Roberts Jr. suggested that asking for perfect record-keeping might be unrealistic. “They probably don’t have the latest version of WordPerfect, or whatever it is,” Chief Justice Roberts said. “They are probably making do with whatever they can under their budget and doing the best they can.”
Ms. Karlan responded by citing the bumbling deputy sheriff in “The Andy Griffith Show.”
“There’s not a Barney Fife defense to the violation of the Fourth Amendment,” she said.
Justices Antonin Scalia and David H. Souter had larger concerns, musing about the exclusionary rule itself.
“The theory of the exclusionary rule” as applied to Mr. Herring’s case, Justice Scalia said, sarcastically, is that “the police will not keep good records unless we let the criminals go.”
Justice Scalia repeated his view, expressed in Hudson v. Michigan in 2006, that police departments are more professional than they used to be, reducing the need for the exclusionary rule. “To apply the severe remedy that you propose,” he told Ms. Karlan, “in this area at this date seems to me excessive.”
Justice Souter pressed Mr. Dreeben in the opposite direction, asking what evidence showed that the costs of the exclusionary rule in freed criminals outweighed its benefits in better policing.
“Don’t you think that we ought to have a factual basis to know what that cost is?” he asked.
“If the court wants one in order to justify the exclusionary rule,” Mr. Dreeben replied, “then it probably needs to go back to scratch and start all over again.” He quickly added that the case did not require a re-examination of the exclusionary rule as such.
The second case, Arizona v. Gant, No. 07-542, arose from a search of Rodney J. Gant’s car after he had parked in the driveway of a private home. Tucson police officers, acting on an outstanding warrant, handcuffed him and locked him in the back of a squad car. They found cocaine in his car, and the Arizona Supreme Court suppressed the evidence, saying there had been no good reason to conduct a search without a warrant.
Joseph T. Maziarz, a state assistant attorney general, urged the Supreme Court to apply a “bright line” rule in the case, meaning one that does not require case-by-case justification. In 1981, the Supreme Court seemed to endorse such a rule, saying in New York v. Belton that the police may search the passenger compartment of a car without a warrant so long as they do so soon after the arrest of a recent occupant.
Several justices indicated that the Belton rule did not fit Mr. Gant’s circumstances particularly well. “It’s just silly,” Justice Scalia said of the argument that Mr. Gant continued to pose a threat.
Justice Stephen G. Breyer also expressed doubts.
“Although I don’t think Belton is very logical, it has been the law for 27 years,” Justice Breyer said. “And I take very seriously, as we all do, the principle of stare decisis” — the doctrine that precedents should not lightly be disturbed.