Herring v. United States

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

HERRING v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

No. 07–513. Argued October 7, 2008—Decided January 14, 2009

Officers in Coffee County arrested petitioner Herring based on a war

rant listed in neighboring Dale County’s database. A search incident

to that arrest yielded drugs and a gun. It was then revealed that the

warrant had been recalled months earlier, though this information

had never been entered into the database. Herring was indicted on

federal gun and drug possession charges and moved to suppress the

evidence on the ground that his initial arrest had been illegal. As

suming that there was a Fourth Amendment violation, the District

Court concluded that the exclusionary rule did not apply and denied

the motion to suppress. The Eleventh Circuit affirmed, finding that

the arresting officers were innocent of any wrongdoing, and that Dale

County’s failure to update the records was merely negligent. The

court therefore concluded that the benefit of suppression would be

marginal or nonexistent and that the evidence was admissible under

the good-faith rule of United States v. Leon, 468 U. S. 897.

Held: When police mistakes leading to an unlawful search are the re

sult of isolated negligence attenuated from the search, rather than

systemic error or reckless disregard of constitutional requirements,

the exclusionary rule does not apply. Pp. 4–13.

(a) The fact that a search or arrest was unreasonable does not nec

essarily mean that the exclusionary rule applies. Illinois v. Gates,

462 U. S. 213, 223. The rule is not an individual right and applies

only where its deterrent effect outweighs the substantial cost of let

ting guilty and possibly dangerous defendants go free. Leon, 468

U. S., at 908–909. For example, it does not apply if police acted “in

objectively reasonable reliance” on an invalid warrant. Id., at 922.

In applying Leon’s good-faith rule to police who reasonably relied on

mistaken information in a court’s database that an arrest warrant

2 HERRING v. UNITED STATES

Syllabus

was outstanding, Arizona v. Evans, 514 U. S. 1, 14–15, the Court left

unresolved the issue confronted here: whether evidence should be

suppressed if the police committed the error, id., at 16, n. 5. Pp. 4–7.

(b) The extent to which the exclusionary rule is justified by its de

terrent effect varies with the degree of law enforcement culpability.

See, e.g., Leon, supra, at 911. Indeed, the abuses that gave rise to the

rule featured intentional conduct that was patently unconstitutional.

See, e.g., Weeks v. United States, 232 U. S 383. An error arising from

nonrecurring and attenuated negligence is far removed from the core

concerns that led to the rule’s adoption. Pp. 7–9.

(c) To trigger the exclusionary rule, police conduct must be suffi

ciently deliberate that exclusion can meaningfully deter it, and suffi

ciently culpable that such deterrence is worth the price paid by the

justice system. The pertinent analysis is objective, not an inquiry

into the arresting officers’ subjective awareness. See, e.g., Leon, su

pra, at 922, n. 23. Pp. 9–11.

(d) The conduct here was not so objectively culpable as to require

exclusion. The marginal benefits that might follow from suppressing

evidence obtained in these circumstances cannot justify the substan

tial costs of exclusion. Leon, supra, at 922. Pp. 11–13.

492 F. 3d 1212, affirmed.

ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA,

KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissent

ing opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined.

BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.

Cite as: 555 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–513

_________________

BENNIE DEAN HERRING, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[January 14, 2009]

CHIEF JUSTICE ROBERTS delivered the opinion of the

Court.

The Fourth Amendment forbids “unreasonable searches

and seizures,” and this usually requires the police to have

probable cause or a warrant before making an arrest.

What if an officer reasonably believes there is an out

standing arrest warrant, but that belief turns out to be

wrong because of a negligent bookkeeping error by an

other police employee? The parties here agree that the

ensuing arrest is still a violation of the Fourth Amend

ment, but dispute whether contraband found during a

search incident to that arrest must be excluded in a later

prosecution.

Our cases establish that such suppression is not an

automatic consequence of a Fourth Amendment violation.

Instead, the question turns on the culpability of the police

and the potential of exclusion to deter wrongful police

conduct. Here the error was the result of isolated negli

gence attenuated from the arrest. We hold that in these

circumstances the jury should not be barred from consid

ering all the evidence.

2 HERRING v. UNITED STATES

Opinion of the Court

I

On July 7, 2004, Investigator Mark Anderson learned

that Bennie Dean Herring had driven to the Coffee County

Sheriff’s Department to retrieve something from his im

pounded truck. Herring was no stranger to law enforce

ment, and Anderson asked the county’s warrant clerk,

Sandy Pope, to check for any outstanding warrants for

Herring’s arrest. When she found none, Anderson asked

Pope to check with Sharon Morgan, her counterpart in

neighboring Dale County. After checking Dale County’s

computer database, Morgan replied that there was an

active arrest warrant for Herring’s failure to appear on a

felony charge. Pope relayed the information to Anderson

and asked Morgan to fax over a copy of the warrant as

confirmation. Anderson and a deputy followed Herring as

he left the impound lot, pulled him over, and arrested him.

A search incident to the arrest revealed methampheta

mine in Herring’s pocket, and a pistol (which as a felon he

could not possess) in his vehicle. App. 17–23.

There had, however, been a mistake about the warrant.

The Dale County sheriff’s computer records are supposed

to correspond to actual arrest warrants, which the office

also maintains. But when Morgan went to the files to

retrieve the actual warrant to fax to Pope, Morgan was

unable to find it. She called a court clerk and learned that

the warrant had been recalled five months earlier. Nor

mally when a warrant is recalled the court clerk’s office or

a judge’s chambers calls Morgan, who enters the informa

tion in the sheriff’s computer database and disposes of the

physical copy. For whatever reason, the information about

the recall of the warrant for Herring did not appear in the

database. Morgan immediately called Pope to alert her to

the mixup, and Pope contacted Anderson over a secure

radio. This all unfolded in 10 to 15 minutes, but Herring

had already been arrested and found with the gun and

drugs, just a few hundred yards from the sheriff’s office.

Cite as: 555 U. S. ____ (2009) 3

Opinion of the Court

Id., at 26, 35–42, 54–55.

Herring was indicted in the District Court for the Mid

dle District of Alabama for illegally possessing the gun

and drugs, violations of 18 U. S. C. §922(g)(1) and 21

U. S. C. §844(a). He moved to suppress the evidence on

the ground that his initial arrest had been illegal because

the warrant had been rescinded. The Magistrate Judge

recommended denying the motion because the arresting

officers had acted in a good-faith belief that the warrant

was still outstanding. Thus, even if there were a Fourth

Amendment violation, there was “no reason to believe that

application of the exclusionary rule here would deter the

occurrence of any future mistakes.” App. 70. The District

Court adopted the Magistrate Judge’s recommendation,

451 F. Supp. 2d 1290 (2005), and the Court of Appeals for

the Eleventh Circuit affirmed, 492 F. 3d 1212 (2007).

The Eleventh Circuit found that the arresting officers in

Coffee County “were entirely innocent of any wrongdoing

or carelessness.” id., at 1218. The court assumed that

whoever failed to update the Dale County sheriff’s records

was also a law enforcement official, but noted that “the

conduct in question [wa]s a negligent failure to act, not a

deliberate or tactical choice to act.” Ibid. Because the

error was merely negligent and attenuated from the ar

rest, the Eleventh Circuit concluded that the benefit of

suppressing the evidence “would be marginal or nonexis

tent,” ibid. (internal quotation marks omitted), and the

evidence was therefore admissible under the good-faith

rule of United States v. Leon, 468 U. S. 897 (1984).

Other courts have required exclusion of evidence ob

tained through similar police errors, e.g., Hoay v. State,

348 Ark. 80, 86–87, 71 S. W. 3d 573, 577 (2002), so we

granted Herring’s petition for certiorari to resolve the

conflict, 552 U. S. ___ (2008). We now affirm the Eleventh

Circuit’s judgment.

4 HERRING v. UNITED STATES

Opinion of the Court

II

When a probable-cause determination was based on

reasonable but mistaken assumptions, the person sub

jected to a search or seizure has not necessarily been the

victim of a constitutional violation. The very phrase

“probable cause” confirms that the Fourth Amendment

does not demand all possible precision. And whether the

error can be traced to a mistake by a state actor or some

other source may bear on the analysis. For purposes of

deciding this case, however, we accept the parties’ as

sumption that there was a Fourth Amendment violation.

The issue is whether the exclusionary rule should be

applied.

A

The Fourth Amendment protects “[t]he right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures,” but

“contains no provision expressly precluding the use of

evidence obtained in violation of its commands,” Arizona v.

Evans, 514 U. S. 1, 10 (1995). Nonetheless, our decisions

establish an exclusionary rule that, when applicable,

forbids the use of improperly obtained evidence at trial.

See, e.g., Weeks v. United States, 232 U. S. 383, 398 (1914).

We have stated that this judicially created rule is “de

signed to safeguard Fourth Amendment rights generally

through its deterrent effect.” United States v. Calandra,

414 U. S. 338, 348 (1974).

In analyzing the applicability of the rule, Leon admon

ished that we must consider the actions of all the police

officers involved. 468 U. S., at 923, n. 24 (“It is necessary

to consider the objective reasonableness, not only of the

officers who eventually executed a warrant, but also of the

officers who originally obtained it or who provided infor

mation material to the probable-cause determination”).

The Coffee County officers did nothing improper. Indeed,

Cite as: 555 U. S. ____ (2009) 5

Opinion of the Court

the error was noticed so quickly because Coffee County

requested a faxed confirmation of the warrant.

The Eleventh Circuit concluded, however, that some

body in Dale County should have updated the computer

database to reflect the recall of the arrest warrant. The

court also concluded that this error was negligent, but did

not find it to be reckless or deliberate. 492 F. 3d, at 1218.1

That fact is crucial to our holding that this error is not

enough by itself to require “the extreme sanction of exclu

sion.” Leon, supra, at 916.

B

1. The fact that a Fourth Amendment violation oc

curred—i.e., that a search or arrest was unreasonable—

does not necessarily mean that the exclusionary rule

applies. Illinois v. Gates, 462 U. S. 213, 223 (1983). In

deed, exclusion “has always been our last resort, not our

first impulse,” Hudson v. Michigan, 547 U. S. 586, 591

(2006), and our precedents establish important principles

that constrain application of the exclusionary rule.

First, the exclusionary rule is not an individual right

and applies only where it “ ‘result[s] in appreciable deter

rence.’ ” Leon, supra, at 909 (quoting United States v.

Janis, 428 U. S. 433, 454 (1976)). We have repeatedly

rejected the argument that exclusion is a necessary conse

quence of a Fourth Amendment violation. Leon, supra, at

905–906; Evans, supra, at 13–14; Pennsylvania Bd. of

Probation and Parole v. Scott, 524 U. S. 357, 363 (1998).

Instead we have focused on the efficacy of the rule in

——————

1 At an earlier point in its opinion, the Eleventh Circuit described the

error as “ ‘at the very least negligent,’ ” 492 F. 3d 1212, 1217 (2007)

(quoting Michigan v. Tucker, 417 U. S. 433, 447 (1974)). But in the

next paragraph, it clarified that the error was “a negligent failure to

act, not a deliberate or tactical choice to act,” 492 F. 3d, at 1218. The

question presented treats the error as a “negligen[t]” one, see Pet. for

Cert. i; Brief in Opposition (I), and both parties briefed the case on that

basis.

6 HERRING v. UNITED STATES

Opinion of the Court

deterring Fourth Amendment violations in the future. See

Calandra, supra, at 347–355; Stone v. Powell, 428 U. S.

465, 486 (1976).2

In addition, the benefits of deterrence must outweigh

the costs. Leon, supra, at 910. “We have never suggested

that the exclusionary rule must apply in every circum

stance in which it might provide marginal deterrence.”

Scott, supra, at 368. “[T]o the extent that application of

the exclusionary rule could provide some incremental

deterrent, that possible benefit must be weighed against

[its] substantial social costs.” Illinois v. Krull, 480 U. S.

340, 352–353 (1987) (internal quotation marks omitted).

The principal cost of applying the rule is, of course, letting

guilty and possibly dangerous defendants go free—

something that “offends basic concepts of the criminal

justice system.” Leon, supra, at 908. “[T]he rule’s costly

toll upon truth-seeking and law enforcement objectives

presents a high obstacle for those urging [its] application.”

Scott, supra, at 364–365 (internal quotation marks omit

ted); see also United States v. Havens, 446 U. S. 620, 626–

627 (1980); United States v. Payner, 447 U. S. 727, 734

(1980).

These principles are reflected in the holding of Leon:

When police act under a warrant that is invalid for lack of

probable cause, the exclusionary rule does not apply if the

police acted “in objectively reasonable reliance” on the

subsequently invalidated search warrant. 468 U. S., at

922. We (perhaps confusingly) called this objectively

——————

2 JUSTICEGINSBURG’s dissent champions what she describes as “ ‘a

more majestic conception’ of . . . the exclusionary rule,” post, at 5

(quoting Arizona v. Evans, 514 U. S. 1, 18 (1995) (STEVENS, J., dissent

ing)), which would exclude evidence even where deterrence does not

justify doing so. Majestic or not, our cases reject this conception, see,

e.g., United States v. Leon, 468 U. S. 897, 921, n. 22 (1984), and perhaps

for this reason, her dissent relies almost exclusively on previous dis

sents to support its analysis.

Cite as: 555 U. S. ____ (2009) 7

Opinion of the Court

reasonable reliance “good faith.” Ibid., n. 23. In a com

panion case, Massachusetts v. Sheppard, 468 U. S. 981

(1984), we held that the exclusionary rule did not apply

when a warrant was invalid because a judge forgot to

make “clerical corrections” to it. Id., at 991.

Shortly thereafter we extended these holdings to war

rantless administrative searches performed in good-faith

reliance on a statute later declared unconstitutional.

Krull, supra, at 349–350. Finally, in Evans, 514 U. S. 1,

we applied this good-faith rule to police who reasonably

relied on mistaken information in a court’s database that

an arrest warrant was outstanding. We held that a mis

take made by a judicial employee could not give rise to

exclusion for three reasons: The exclusionary rule was

crafted to curb police rather than judicial misconduct;

court employees were unlikely to try to subvert the Fourth

Amendment; and “most important, there [was] no basis for

believing that application of the exclusionary rule in

[those] circumstances” would have any significant effect in

deterring the errors. Id., at 15. Evans left unresolved

“whether the evidence should be suppressed if police

personnel were responsible for the error,”3 an issue not

argued by the State in that case, id., at 16, n. 5, but one

that we now confront.

2. The extent to which the exclusionary rule is justified

by these deterrence principles varies with the culpability

of the law enforcement conduct. As we said in Leon, “an

——————

3 We thus reject JUSTICE BREYER’s suggestion that Evans was entirely

“premised on a distinction between judicial errors and police errors,”

post, at 1 (dissenting opinion). Were that the only rationale for our

decision, there would have been no reason for us expressly and care

fully to leave police error unresolved. In addition, to the extent Evans

is viewed as presaging a particular result here, it is noteworthy that

the dissent’s view in that case was that the distinction JUSTICE BREYER

regards as determinative was instead “artificial.” 514 U. S., at 29

(GINSBURG, J., dissenting).

8 HERRING v. UNITED STATES

Opinion of the Court

assessment of the flagrancy of the police misconduct con

stitutes an important step in the calculus” of applying the

exclusionary rule. 468 U. S., at 911. Similarly, in Krull

we elaborated that “evidence should be suppressed ‘only if

it can be said that the law enforcement officer had knowl

edge, or may properly be charged with knowledge, that the

search was unconstitutional under the Fourth Amend

ment.’ ” 480 U. S., at 348–349 (quoting United States v.

Peltier, 422 U. S. 531, 542 (1975)).

Anticipating the good-faith exception to the exclusionary

rule, Judge Friendly wrote that “[t]he beneficent aim of

the exclusionary rule to deter police misconduct can be

sufficiently accomplished by a practice . . . outlawing

evidence obtained by flagrant or deliberate violation of

rights.” The Bill of Rights as a Code of Criminal Proce

dure, 53 Calif. L. Rev. 929, 953 (1965) (footnotes omitted);

see also Brown v. Illinois, 422 U. S. 590, 610–611 (1975)

(Powell, J., concurring in part) (“[T]he deterrent value of

the exclusionary rule is most likely to be effective” when

“official conduct was flagrantly abusive of Fourth Amend

ment rights”).

Indeed, the abuses that gave rise to the exclusionary

rule featured intentional conduct that was patently un

constitutional. In Weeks, 232 U. S. 383, a foundational

exclusionary rule case, the officers had broken into the

defendant’s home (using a key shown to them by a

neighbor), confiscated incriminating papers, then returned

again with a U. S. Marshal to confiscate even more. Id., at

386. Not only did they have no search warrant, which the

Court held was required, but they could not have gotten

one had they tried. They were so lacking in sworn and

particularized information that “not even an order of court

would have justified such procedure.” Id., at 393–394.

Silverthorne Lumber Co. v. United States, 251 U. S. 385

(1920), on which petitioner repeatedly relies, was similar;

federal officials “without a shadow of authority” went to

Cite as: 555 U. S. ____ (2009) 9

Opinion of the Court

the defendants’ office and “made a clean sweep” of every

paper they could find. Id., at 390. Even the Government

seemed to acknowledge that the “seizure was an outrage.”

Id., at 391.

Equally flagrant conduct was at issue in Mapp v. Ohio,

367 U. S. 643 (1961), which overruled Wolf v. Colorado,

338 U. S. 25 (1949), and extended the exclusionary rule to

the States. Officers forced open a door to Ms. Mapp’s

house, kept her lawyer from entering, brandished what

the court concluded was a false warrant, then forced her

into handcuffs and canvassed the house for obscenity. 367

U. S., at 644–645. See Friendly, supra, at 953, and n. 127

(“[T]he situation in Mapp” featured a “flagrant or deliber

ate violation of rights”). An error that arises from nonre

curring and attenuated negligence is thus far removed

from the core concerns that led us to adopt the rule in the

first place. And in fact since Leon, we have never applied

the rule to exclude evidence obtained in violation of the

Fourth Amendment, where the police conduct was no more

intentional or culpable than this.

3. To trigger the exclusionary rule, police conduct must

be sufficiently deliberate that exclusion can meaningfully

deter it, and sufficiently culpable that such deterrence is

worth the price paid by the justice system. As laid out in

our cases, the exclusionary rule serves to deter deliberate,

reckless, or grossly negligent conduct, or in some circum

stances recurring or systemic negligence. The error in this

case does not rise to that level.4

Our decision in Franks v. Delaware, 438 U. S. 154

——————

4 We do not quarrel with JUSTICE GINSBURG’s claim that “liability for

negligence . . . creates an incentive to act with greater care,” post, at 7,

and we do not suggest that the exclusion of this evidence could have no

deterrent effect. But our cases require any deterrence to “be weighed

against the ‘substantial social costs exacted by the exclusionary rule,’ ”

Illinois v. Krull, 480 U. S. 340, 352–353 (1987) (quoting Leon, 468 U. S.,

at 907), and here exclusion is not worth the cost.

10 HERRING v. UNITED STATES

Opinion of the Court

(1978), provides an analogy. Cf. Leon, supra, at 914. In

Franks, we held that police negligence in obtaining a

warrant did not even rise to the level of a Fourth Amend

ment violation, let alone meet the more stringent test for

triggering the exclusionary rule. We held that the Consti

tution allowed defendants, in some circumstances, “to

challenge the truthfulness of factual statements made in

an affidavit supporting the warrant,” even after the war

rant had issued. 438 U. S., at 155–156. If those false

statements were necessary to the Magistrate Judge’s

probable-cause determination, the warrant would be

“voided.” Ibid. But we did not find all false statements

relevant: “There must be allegations of deliberate false

hood or of reckless disregard for the truth,” and

“[a]llegations of negligence or innocent mistake are insuf

ficient.” Id., at 171.

Both this case and Franks concern false information

provided by police. Under Franks, negligent police mis

communications in the course of acquiring a warrant do

not provide a basis to rescind a warrant and render a

search or arrest invalid. Here, the miscommunications

occurred in a different context—after the warrant had

been issued and recalled—but that fact should not require

excluding the evidence obtained.

The pertinent analysis of deterrence and culpability is

objective, not an “inquiry into the subjective awareness of

arresting officers,” Reply Brief for Petitioner 4–5. See also

post, at 10, n. 7 (GINSBURG, J., dissenting). We have

already held that “our good-faith inquiry is confined to the

objectively ascertainable question whether a reasonably

well trained officer would have known that the search was

illegal” in light of “all of the circumstances.” Leon, 468

U. S., at 922, n. 23. These circumstances frequently in

clude a particular officer’s knowledge and experience, but

that does not make the test any more subjective than the

one for probable cause, which looks to an officer’s knowl

Cite as: 555 U. S. ____ (2009) 11

Opinion of the Court

edge and experience, Ornelas v. United States, 517 U. S.

690, 699–700 (1996), but not his subjective intent, Whren

v. United States, 517 U. S. 806, 812–813 (1996).

4. We do not suggest that all recordkeeping errors by

the police are immune from the exclusionary rule. In this

case, however, the conduct at issue was not so objectively

culpable as to require exclusion. In Leon we held that “the

marginal or nonexistent benefits produced by suppressing

evidence obtained in objectively reasonable reliance on a

subsequently invalidated search warrant cannot justify

the substantial costs of exclusion.” 468 U. S., at 922. The

same is true when evidence is obtained in objectively

reasonable reliance on a subsequently recalled warrant.

If the police have been shown to be reckless in maintain

ing a warrant system, or to have knowingly made false

entries to lay the groundwork for future false arrests,

exclusion would certainly be justified under our cases

should such misconduct cause a Fourth Amendment viola

tion. We said as much in Leon, explaining that an officer

could not “obtain a warrant on the basis of a ‘bare bones’

affidavit and then rely on colleagues who are ignorant of

the circumstances under which the warrant was obtained

to conduct the search.” Id., at 923, n. 24 (citing Whiteley v.

Warden, Wyo. State Penitentiary, 401 U. S. 560, 568

(1971)). Petitioner’s fears that our decision will cause

police departments to deliberately keep their officers

ignorant, Brief for Petitioner 37–39, are thus unfounded.

The dissent also adverts to the possible unreliability of a

number of databases not relevant to this case. Post, at 8–

9. In a case where systemic errors were demonstrated, it

might be reckless for officers to rely on an unreliable

warrant system. See Evans, 514 U. S., at 17 (O’Connor,

J., concurring) (“Surely it would not be reasonable for the

police to rely . . . on a recordkeeping system . . . that rou

tinely leads to false arrests” (second emphasis added));

Hudson, 547 U. S., at 604 (KENNEDY, J., concurring) (“If a

12 HERRING v. UNITED STATES

Opinion of the Court

widespread pattern of violations were shown . . . there

would be reason for grave concern” (emphasis added)).

But there is no evidence that errors in Dale County’s

system are routine or widespread. Officer Anderson testi

fied that he had never had reason to question information

about a Dale County warrant, App. 27, and both Sandy

Pope and Sharon Morgan testified that they could remem

ber no similar miscommunication ever happening on their

watch, id., at 33, 61–62. That is even less error than in

the database at issue in Evans, where we also found reli

ance on the database to be objectively reasonable. 514

U. S., at 15 (similar error “every three or four years”).

Because no such showings were made here, see 451

F. Supp. 2d, at 1292,5 the Eleventh Circuit was correct to

affirm the denial of the motion to suppress.

* * *

Petitioner’s claim that police negligence automatically

triggers suppression cannot be squared with the principles

underlying the exclusionary rule, as they have been ex

plained in our cases. In light of our repeated holdings that

the deterrent effect of suppression must be substantial

and outweigh any harm to the justice system, e.g., Leon,

468 U. S., at 909–910, we conclude that when police mis

takes are the result of negligence such as that described

here, rather than systemic error or reckless disregard of

——————

5 JUSTICE GINSBURG notes that at an earlier suppression hearing Mor

gan testified—apparently in confusion—that there had been miscom

munications “[s]everal times.” Post, at 3, n. 2 (quoting App. to Pet. for

Cert. 17a). When she later realized that she had misspoken, Morgan

emphatically corrected the record. App. 61–62. Noting this, the Dis

trict Court found that “Morgan’s ‘several times’ statement is confusing

and essentially unhelpful,” and concluded that there was “no credible

evidence of routine problems with disposing of recalled warrants.” 451

F. Supp. 2d, at 1292. This factual determination, supported by the

record and credited by the Court of Appeals, see 492 F. 3d, at 1219, is of

course entitled to deference.

Cite as: 555 U. S. ____ (2009) 13

Opinion of the Court

constitutional requirements, any marginal deterrence does

not “pay its way.” Id., at 907–908, n. 6 (internal quotation

marks omitted). In such a case, the criminal should not

“go free because the constable has blundered.” People v.

Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion

of the Court by Cardozo, J.).

The judgment of the Court of Appeals for the Eleventh

Circuit is affirmed.

It is so ordered.

Cite as: 555 U. S. ____ (2009) 1

GINSBURG, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–513

_________________

BENNIE DEAN HERRING, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[January 14, 2009]

JUSTICE GINSBURG, with whom JUSTICE STEVENS,

JUSTICE SOUTER, and JUSTICE BREYER join, dissenting.

Petitioner Bennie Dean Herring was arrested, and

subjected to a search incident to his arrest, although no

warrant was outstanding against him, and the police

lacked probable cause to believe he was engaged in crimi

nal activity. The arrest and ensuing search therefore

violated Herring’s Fourth Amendment right “to be secure

. . . against unreasonable searches and seizures.” The

Court of Appeals so determined, and the Government does

not contend otherwise. The exclusionary rule provides

redress for Fourth Amendment violations by placing the

government in the position it would have been in had

there been no unconstitutional arrest and search. The

rule thus strongly encourages police compliance with the

Fourth Amendment in the future. The Court, however,

holds the rule inapplicable because careless recordkeeping

by the police—not flagrant or deliberate misconduct—

accounts for Herring’s arrest.

I would not so constrict the domain of the exclusionary

rule and would hold the rule dispositive of this case: “[I]f

courts are to have any power to discourage [police] error of

[the kind here at issue], it must be through the application

of the exclusionary rule.” Arizona v. Evans, 514 U. S. 1,

22–23 (1995) (STEVENS, J., dissenting). The unlawful

2 HERRING v. UNITED STATES

GINSBURG, J., dissenting

search in this case was contested in court because the

police found methamphetamine in Herring’s pocket and a

pistol in his truck. But the “most serious impact” of the

Court’s holding will be on innocent persons “wrongfully

arrested based on erroneous information [carelessly main

tained] in a computer data base.” Id., at 22.

I

A warrant for Herring’s arrest was recalled in February

2004, apparently because it had been issued in error. See

Brief for Petitioner 3, n. 1 (citing App. 63). The warrant

database for the Dale County Sheriff’s Department, how

ever, does not automatically update to reflect such

changes. App. 39–40, 43, 45. A member of the Dale

County Sheriff’s Department—whom the parties have not

identified—returned the hard copy of the warrant to the

County Circuit Clerk’s office, but did not correct the De

partment’s database to show that the warrant had been

recalled. Id., at 60. The erroneous entry for the warrant

remained in the database, undetected, for five months.

On a July afternoon in 2004, Herring came to the Coffee

County Sheriff’s Department to retrieve his belongings

from a vehicle impounded in the Department’s lot. Id., at

17. Investigator Mark Anderson, who was at the Depart

ment that day, knew Herring from prior interactions:

Herring had told the district attorney, among others, of

his suspicion that Anderson had been involved in the

killing of a local teenager, and Anderson had pursued

Herring to get him to drop the accusations. Id., at 63–64.

Informed that Herring was in the impoundment lot,

Anderson asked the Coffee County warrant clerk whether

there was an outstanding warrant for Herring’s arrest.

Id., at 18. The clerk, Sandy Pope, found no warrant. Id.,

at 19.

Anderson then asked Pope to call the neighboring Dale

County Sheriff’s Department to inquire whether a warrant

Cite as: 555 U. S. ____ (2009) 3

GINSBURG, J., dissenting

to arrest Herring was outstanding there. Upon receiving

Pope’s phone call, Sharon Morgan, the warrant clerk for

the Dale County Department, checked her computer data

base. As just recounted, that Department’s database

preserved an error. Morgan’s check therefore showed—

incorrectly—an active warrant for Herring’s arrest. Id., at

41. Morgan gave the misinformation to Pope, ibid., who

relayed it to Investigator Anderson, id., at 35. Armed with

the report that a warrant existed, Anderson promptly

arrested Herring and performed an incident search min

utes before detection of the error.

The Court of Appeals concluded, and the Government

does not contest, that the “failure to bring the [Dale

County Sheriff’s Department] records up to date [was] ‘at

the very least negligent.’ ” 492 F. 3d 1212, 1217 (CA11

2007) (quoting Michigan v. Tucker, 417 U. S. 433, 447

(1974)). And it is uncontested here that Herring’s arrest

violated his Fourth Amendment rights. The sole question

presented, therefore, is whether evidence the police ob

tained through the unlawful search should have been

suppressed.1 The Court holds that suppression was un

warranted because the exclusionary rule’s “core concerns”

are not raised by an isolated, negligent recordkeeping

error attenuated from the arrest. Ante, at 9, 12.2 In my

view, the Court’s opinion underestimates the need for a

forceful exclusionary rule and the gravity of recordkeeping

——————

1 That the recordkeeping error occurred in Dale County rather than

Coffee County is inconsequential in the suppression analysis. As the

Court notes, “we must consider the actions of all the police officers

involved.” Ante, at 4. See also United States v. Leon, 468 U. S. 897,

923, n. 24 (1984).

2 It is not altogether clear how “isolated” the error was in this case.

When the Dale County Sheriff’s Department warrant clerk was first

asked: “[H]ow many times have you had or has Dale County had

problems, any problems with communicating about warrants,” she

responded: “Several times.” App. to Pet. for Cert. 17a (internal quota

tion marks omitted).

4 HERRING v. UNITED STATES

GINSBURG, J., dissenting

errors in law enforcement.

II

A

The Court states that the exclusionary rule is not a

defendant’s right, ante, at 5; rather, it is simply a remedy

applicable only when suppression would result in appre

ciable deterrence that outweighs the cost to the justice

system, ante, at 12. See also ante, at 9 (“[T]he exclusion

ary rule serves to deter deliberate, reckless, or grossly

negligent conduct, or in some circumstances recurring or

systemic negligence.”).

The Court’s discussion invokes a view of the exclusion

ary rule famously held by renowned jurists Henry J.

Friendly and Benjamin Nathan Cardozo. Over 80 years

ago, Cardozo, then seated on the New York Court of Ap

peals, commented critically on the federal exclusionary

rule, which had not yet been applied to the States. He

suggested that in at least some cases the rule exacted too

high a price from the criminal justice system. See People

v. Defore, 242 N. Y. 13, 24–25, 150 N. E. 585, 588–589

(1926). In words often quoted, Cardozo questioned

whether the criminal should “go free because the constable

has blundered.” Id., at 21, 150 N. E., at 587.

Judge Friendly later elaborated on Cardozo’s query.

“The sole reason for exclusion,” Friendly wrote, “is that

experience has demonstrated this to be the only effective

method for deterring the police from violating the Consti

tution.” The Bill of Rights as a Code of Criminal Proce

dure, 53 Calif. L. Rev. 929, 951 (1965). He thought it

excessive, in light of the rule’s aim to deter police conduct,

to require exclusion when the constable had merely “blun

dered”—when a police officer committed a technical error

in an on-the-spot judgment, id., at 952, or made a “slight

and unintentional miscalculation,” id., at 953. As the

Court recounts, Judge Friendly suggested that deterrence

Cite as: 555 U. S. ____ (2009) 5

GINSBURG, J., dissenting

of police improprieties could be “sufficiently accomplished”

by confining the rule to “evidence obtained by flagrant or

deliberate violation of rights.” Ibid.; ante, at 8.

B

Others have described “a more majestic conception” of

the Fourth Amendment and its adjunct, the exclusionary

rule. Evans, 514 U. S., at 18 (STEVENS, J., dissenting).

Protective of the fundamental “right of the people to be

secure in their persons, houses, papers, and effects,” the

Amendment “is a constraint on the power of the sovereign,

not merely on some of its agents.” Ibid. (internal quota

tion marks omitted); see Stewart, The Road to Mapp v.

Ohio and Beyond: The Origins, Development and Future

of the Exclusionary Rule in Search-and-Seizure Cases, 83

Colum. L. Rev. 1365 (1983). I share that vision of the

Amendment.

The exclusionary rule is “a remedy necessary to ensure

that” the Fourth Amendment’s prohibitions “are observed

in fact.” Id., at 1389; see Kamisar, Does (Did) (Should)

The Exclusionary Rule Rest On A “Principled Basis”

Rather Than An “Empirical Proposition”? 16 Creighton

L. Rev. 565, 600 (1983). The rule’s service as an essential

auxiliary to the Amendment earlier inclined the Court to

hold the two inseparable. See Whiteley v. Warden, Wyo.

State Penitentiary, 401 U. S. 560, 568–569 (1971). Cf.

Olmstead v. United States, 277 U. S. 438, 469–471 (1928)

(Holmes, J., dissenting); id., at 477–479, 483–485

(Brandeis, J., dissenting).

Beyond doubt, a main objective of the rule “is to deter—

to compel respect for the constitutional guaranty in the

only effectively available way—by removing the incentive

to disregard it.” Elkins v. United States, 364 U. S. 206,

217 (1960). But the rule also serves other important

purposes: It “enabl[es] the judiciary to avoid the taint of

partnership in official lawlessness,” and it “assur[es] the

6 HERRING v. UNITED STATES

GINSBURG, J., dissenting

people—all potential victims of unlawful government

conduct—that the government would not profit from its

lawless behavior, thus minimizing the risk of seriously

undermining popular trust in government.” United States

v. Calandra, 414 U. S. 338, 357 (1974) (Brennan, J., dis

senting). See also Terry v. Ohio, 392 U. S. 1, 13 (1968) (“A

rule admitting evidence in a criminal trial, we recognize,

has the necessary effect of legitimizing the conduct which

produced the evidence, while an application of the exclu

sionary rule withholds the constitutional imprimatur.”);

Kamisar, supra, at 604 (a principal reason for the exclu

sionary rule is that “the Court’s aid should be denied ‘in

order to maintain respect for law [and] to preserve the

judicial process from contamination’ ” (quoting Olmstead,

277 U. S., at 484 (Brandeis, J., dissenting)).

The exclusionary rule, it bears emphasis, is often the

only remedy effective to redress a Fourth Amendment

violation. See Mapp v. Ohio, 367 U. S. 643, 652 (1961)

(noting “the obvious futility of relegating the Fourth

Amendment to the protection of other remedies”); Amster

dam, Perspectives on the Fourth Amendment, 58 Minn.

L. Rev. 349, 360 (1974) (describing the exclusionary rule

as “the primary instrument for enforcing the [F]ourth

[A]mendment”). Civil liability will not lie for “the vast

majority of [F]ourth [A]mendment violations—the fre

quent infringements motivated by commendable zeal, not

condemnable malice.” Stewart, 83 Colum. L. Rev., at

1389. Criminal prosecutions or administrative sanctions

against the offending officers and injunctive relief against

widespread violations are an even farther cry. See id., at

1386–1388.

III

The Court maintains that Herring’s case is one in which

the exclusionary rule could have scant deterrent effect and

therefore would not “pay its way.” Ante, at 13 (internal

Cite as: 555 U. S. ____ (2009) 7

GINSBURG, J., dissenting

quotation marks omitted). I disagree.

A

The exclusionary rule, the Court suggests, is capable of

only marginal deterrence when the misconduct at issue is

merely careless, not intentional or reckless. See ante, at 9,

11. The suggestion runs counter to a foundational premise

of tort law—that liability for negligence, i.e., lack of due

care, creates an incentive to act with greater care. The

Government so acknowledges. See Brief for United States

21; cf. Reply Brief 12.

That the mistake here involved the failure to make a

computer entry hardly means that application of the

exclusionary rule would have minimal value. “Just as the

risk of respondeat superior liability encourages employers

to supervise . . . their employees’ conduct [more carefully],

so the risk of exclusion of evidence encourages policymak

ers and systems managers to monitor the performance of

the systems they install and the personnel employed to

operate those systems.” Evans, 514 U. S., at 29, n. 5

(GINSBURG, J., dissenting).

Consider the potential impact of a decision applying the

exclusionary rule in this case. As earlier observed, see

supra, at 2, the record indicates that there is no electronic

connection between the warrant database of the Dale

County Sheriff’s Department and that of the County Cir

cuit Clerk’s office, which is located in the basement of the

same building. App. 39–40, 43, 45. When a warrant is

recalled, one of the “many different people that have ac

cess to th[e] warrants,” id., at 60, must find the hard copy

of the warrant in the “two or three different places” where

the department houses warrants, id., at 41, return it to

the Clerk’s office, and manually update the Department’s

database, see id., at 60. The record reflects no routine

practice of checking the database for accuracy, and the

failure to remove the entry for Herring’s warrant was not

8 HERRING v. UNITED STATES

GINSBURG, J., dissenting

discovered until Investigator Anderson sought to pursue

Herring five months later. Is it not altogether obvious

that the Department could take further precautions to

ensure the integrity of its database? The Sheriff’s De

partment “is in a position to remedy the situation and

might well do so if the exclusionary rule is there to remove

the incentive to do otherwise.” 1 W. LaFave, Search and

Seizure §1.8(e), p. 313 (4th ed. 2004). See also Evans, 514

U. S., at 21 (STEVENS, J., dissenting).

B

Is the potential deterrence here worth the costs it im

poses? See ante, at 9. In light of the paramount impor

tance of accurate recordkeeping in law enforcement, I

would answer yes, and next explain why, as I see it,

Herring’s motion presents a particularly strong case for

suppression.

Electronic databases form the nervous system of con

temporary criminal justice operations. In recent years,

their breadth and influence have dramatically expanded.

Police today can access databases that include not only the

updated National Crime Information Center (NCIC), but

also terrorist watchlists, the Federal Government’s em

ployee eligibility system, and various commercial data

bases. Brief for Electronic Privacy Information Center

(EPIC) et al. as Amicus Curiae 6. Moreover, States are

actively expanding information sharing between jurisdic

tions. Id., at 8–13. As a result, law enforcement has an

increasing supply of information within its easy electronic

reach. See Brief for Petitioner 36–37.

The risk of error stemming from these databases is not

slim. Herring’s amici warn that law enforcement data

bases are insufficiently monitored and often out of date.

Brief for Amicus EPIC 13–28. Government reports de

Cite as: 555 U. S. ____ (2009) 9

GINSBURG, J., dissenting

scribe, for example, flaws in NCIC databases,3 terrorist

watchlist databases,4 and databases associated with the

Federal Government’s employment eligibility verification

system.5

Inaccuracies in expansive, interconnected collections of

electronic information raise grave concerns for individual

liberty. “The offense to the dignity of the citizen who is

arrested, handcuffed, and searched on a public street

simply because some bureaucrat has failed to maintain

an accurate computer data base” is evocative of the use

of general warrants that so outraged the authors of our

Bill of Rights. Evans, 514 U. S., at 23 (STEVENS, J.,

dissenting).

C

The Court assures that “exclusion would certainly be

justified” if “the police have been shown to be reckless in

maintaining a warrant system, or to have knowingly

made false entries to lay the groundwork for future false

arrests.” Ante, at 11. This concession provides little

comfort.

First, by restricting suppression to bookkeeping errors

that are deliberate or reckless, the majority leaves Her

ring, and others like him, with no remedy for violations of

——————

3 See Dept. of Justice, Bureau of Justice Statistics, P. Brien, Improv

ing Access to and Integrity of Criminal History Records, NCJ 200581

(July 2005), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/iaichr.pdf

(All Internet materials as visited Jan. 12, 2009, and included in Clerk

of Court’s case file.).

4 See Dept. of Justice, Office of Inspector General, Audit of the U. S.

Department of Justice Terrorist Watchlist Nomination Processes, Audit

Rep. 08–16 (Mar. 2008), http://www.usdoj.gov/oig/reports/plus/a0816/

final.pdf.

5 See Social Security Admin., Office of Inspector General, Congres

sional Response Report: Accuracy of the Social Security Administra

tion’s Numident File, A–08–06–26100 (Dec. 2006), http://www.ssa.gov/

oig/ADOBEPDF/A–08–06–26100.pdf.

10 HERRING v. UNITED STATES

GINSBURG, J., dissenting

their constitutional rights. See supra, at 6. There can be

no serious assertion that relief is available under 42

U. S. C. §1983. The arresting officer would be sheltered by

qualified immunity, see Harlow v. Fitzgerald, 457 U. S.

800 (1982), and the police department itself is not liable

for the negligent acts of its employees, see Monell v. New

York City Dept. of Social Servs., 436 U. S. 658 (1978).

Moreover, identifying the department employee who com

mitted the error may be impossible.

Second, I doubt that police forces already possess suffi

cient incentives to maintain up-to-date records. The Gov

ernment argues that police have no desire to send officers

out on arrests unnecessarily, because arrests consume

resources and place officers in danger. The facts of this

case do not fit that description of police motivation. Here

the officer wanted to arrest Herring and consulted the

Department’s records to legitimate his predisposition. See

App. 17–19.6

Third, even when deliberate or reckless conduct is afoot,

the Court’s assurance will often be an empty promise: How

is an impecunious defendant to make the required show

ing? If the answer is that a defendant is entitled to dis

covery (and if necessary, an audit of police databases), see

Tr. of Oral Arg. 57–58, then the Court has imposed a

considerable administrative burden on courts and law

enforcement.7

——————

6 It has been asserted that police departments have become suffi

ciently “professional” that they do not need external deterrence to avoid

Fourth Amendment violations. See Tr. of Oral Arg. 24–25; cf. Hudson

v. Michigan, 547 U. S. 586, 598–599 (2006). But professionalism is a

sign of the exclusionary rule’s efficacy—not of its superfluity.

7 It is not clear how the Court squares its focus on deliberate conduct

with its recognition that application of the exclusionary rule does not

require inquiry into the mental state of the police. See ante, at 10;

Whren v. United States, 517 U. S. 806, 812–813 (1996).

Cite as: 555 U. S. ____ (2009) 11

GINSBURG, J., dissenting

IV

Negligent recordkeeping errors by law enforcement

threaten individual liberty, are susceptible to deterrence

by the exclusionary rule, and cannot be remedied effec

tively through other means. Such errors present no occa

sion to further erode the exclusionary rule. The rule “is

needed to make the Fourth Amendment something real; a

guarantee that does not carry with it the exclusion of

evidence obtained by its violation is a chimera.” Ca

landra, 414 U. S., at 361 (Brennan, J., dissenting). In

keeping with the rule’s “core concerns,” ante, at 9, sup

pression should have attended the unconstitutional search

in this case.

* * *

For the reasons stated, I would reverse the judgment of

the Eleventh Circuit.

Cite as: 555 U. S. ____ (2009) 1

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 07–513

_________________

BENNIE DEAN HERRING, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[January 14, 2009]

JUSTICE BREYER, with whom JUSTICE SOUTER joins,

dissenting.

I agree with JUSTICE GINSBURG and join her dissent. I

write separately to note one additional supporting factor

that I believe important. In Arizona v. Evans, 514 U. S. 1

(1995), we held that recordkeeping errors made by a court

clerk do not trigger the exclusionary rule, so long as the

police reasonably relied upon the court clerk’s recordkeep

ing. Id., at 14; id., at 16–17 (O’Connor, J., concurring).

The rationale for our decision was premised on a distinc

tion between judicial errors and police errors, and we gave

several reasons for recognizing that distinction.

First, we noted that “the exclusionary rule was histori

cally designed as a means of deterring police misconduct,

not mistakes by court employees.” Id., at 14 (emphasis

added). Second, we found “no evidence that court employ

ees are inclined to ignore or subvert the Fourth Amend

ment or that lawlessness among these actors requires

application of the extreme sanction of exclusion.” Id., at

14–15. Third, we recognized that there was “no basis for

believing that application of the exclusionary rule. . .

[would] have a significant effect on court employees re

sponsible for informing the police that a warrant has been

quashed. Because court clerks are not adjuncts to the law

enforcement team engaged in the often competitive enter

2 HERRING v. UNITED STATES

BREYER, J., dissenting

prise of ferreting out crime, they have no stake in the

outcome of particular criminal prosecutions.” Id., at 15

(citation omitted). Taken together, these reasons explain

why police recordkeeping errors should be treated differ

ently than judicial ones.

Other cases applying the “good faith” exception to the

exclusionary rule have similarly recognized the distinction

between police errors and errors made by others, such as

judicial officers or legislatures. See United States v. Leon,

468 U. S. 897 (1984) (police reasonably relied on magis

trate’s issuance of warrant); Massachusetts v. Sheppard,

468 U. S. 981 (1984) (same); Illinois v. Krull, 480 U. S. 340

(1987) (police reasonably relied on statute’s constitutional

ity).

Distinguishing between police recordkeeping errors and

judicial ones not only is consistent with our precedent, but

also is far easier for courts to administer than THE CHIEF

JUSTICE’s case-by-case, multifactored inquiry into the

degree of police culpability. I therefore would apply the

exclusionary rule when police personnel are responsible

for a recordkeeping error that results in a Fourth Amend

ment violation.

The need for a clear line, and the recognition of such a

line in our precedent, are further reasons in support of the

outcome that JUSTICE GINSBURG’s dissent would reach.