Orin Kerr on Herring v. U.S., in the Eleventh Circuit.
Dude gets arrested because the cop has reason to think there's a warrant out on him, only it turns out that there is no warrant. Problem is, a "search incident to arrest" turned up contraband. Should the dude go to jail for having the contraband?
On the one hand, if the cops don't follow the rules, innocent people are fucked, and we become a three-tier citizenry (cops on the top, not-cops in the middle, subject to being jerked around and ordered around by the cops whenever they get a whim, and people cops don't like on the bottom, in jail).
On the other hand, bad guys should go to jail, and the cop thought he was following the rules.
Except that while the individual cop was following the rules, the cop system, it turns out, wasn't (because it reported a bogus warrant), so giving him credit for following the rules doesn't seem fair, because more than just one cop was involved here.
What do you think?
Me, I don't want the cops to search me, even if I'm not carrying contraband, so I want them to have to have a good reason, and that means that if they search somebody without a good reason, that somebody goes free, even if they are carrying contraband. I think that's a result that increases personal liberty without signficantly diminishing public safety and order. That is, I'll argue that simply carrying contraband doesn't particularly threaten safety and order; it's when you do something with contraband that there's a signficant threat, and the cop can be watching you for that overt act.
Posted by Greg at May 15, 2008 2:23 PM
100% agreed with you. And if decisions like this DO significantly diminish public safety and order, then shouldn't that be a reason to fix the system being used by the cops, rather than a reason to erode personal liberties? I think so.
The problem is our inability to respect the Constitution; it's quite clear that these searches are bogus.
Just read the Fourth Amendment:
"The 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The problem child in the Fourth Amendment is that word "unreasonable". What's "unreasonable"?
Unreasonable is probably best defined as the custom of the land, or the general consensus of people.
If a cop follows the rules, even if it turns out the warrant is due to an adminstrative error, then I say the arrest sticks. If we don't, it seems to me we are saying that the system must work 100% of the time or the bad guys win. I don't think requiring perfection is reasonable.
The alternative is for cops to not follow up on warrants because - who knows, they might be wrong anyway? That leads to a situation where cops don't do their jobs because it doesn't matter anyway. That is straying too far into 1970s silly territory.
If the warrant system has so many problems that it keeps producing lots of bogus warrants, then there's a problem that needs fixing. But I don't know if the solution to that problem is to let criminals go free at that point. Instead, it needs to be fixed administratively through the proper legislative and executive organs.
The counter-argument is that if bogus warrants have no consequences, there's no motivations for the cops or executive department or legislature to do anything about fixing them. The only motivation that will work is if bad guys go free.
E.g., nobody complains about a system that is so screwed up that cops can't get the warrants they need, because that problem is the first one to get fixed.
Also, there are lots of degrees in which a warrant can be wrong. A typo in the address is one thing--if the police kick in the right door but the wrong address is on the warrant due to a typo, nobody's going to bitch too much. But if they go to the wrong door and kick it in because of the same typo, that's more serious, because they're using police power against the wrong people. And it gets worse from there--warrants issued in bad faith, for lies, for uncorroborated statements from paid informants, leading up to circumstances like the case of Cory Maye.
So there's a lot of room to strike a balance between perfection and clusterfuckery.