CA11: One jurisdiction’s reliance on a recalled warrant from another saved by Evans and good faith exception

The Eleventh Circuit holds that the exclusionary rule would not be applied because of the good faith exception to a situation where the police in one jurisdiction called another to ask about a warrant on the defendant, and they were told that there was a warrant. It turned out, however, that the warrant had been recalled. The court engaged in a sensitive discussion of the issues and comes out in favor of the government and engaging in a cost-benefits analysis and applying the good faith exception because Leon counseled its application. The District Court sustained the search. United States v. Herring, 492 F.3d 1212 (11th Cir. 2007). The court states the issue:

The facts of this case present an interesting issue involving whether to apply the exclusionary rule. Officers in one jurisdiction check with employees of a law enforcement agency in another jurisdiction and are told that there is an outstanding warrant for an individual. Acting in good faith on that information the officers arrest the person and find contraband. It turns out the warrant had been recalled. The erroneous information that led to the arrest and search is the result of a good faith mistake by an employee of the agency in the other jurisdiction. Does the exclusionary rule require that evidence of the contraband be suppressed, or does the good faith exception to the rule permit use of the evidence?

For want of another way to put it, I’ll call this “Arizona v. Evans once removed”:

There is also 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 negligent 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 innocent of any wrongdoing or carelessness. We do not mean to suggest that Dale County law enforcement agencies are not interested in the successful prosecution of crime throughout the state, but their primary responsibility and interest lies in their own cases. Hoping to gain a beneficial deterrent effect on Dale County personnel by excluding evidence in a case brought by Coffee County officers would be like telling a student that if he skips school one of his classmates will be punished. The student may not exactly relish the prospect of causing another to suffer, but human nature being what it is, he is unlikely to fear that prospect as much as he would his own suffering. For all of these reasons, we are convinced that this is one of those situations where “[a]ny incremental deterrent effect which might be achieved by extending the rule … is uncertain at best,” Calandra, 414 U.S. at 348, 94 S. Ct. at 620, where the benefits of suppression would be “marginal or nonexistent,” Leon, 468 U.S. at 920-22, 104 S. Ct. at 3420, and where the exclusionary rule would not “pay its way by deterring official lawlessness,” Gates, 462 U.S. at 257-58, 103 S. Ct. at 2342.

Turning to the third Leon condition, any minimal deterrence that might result from applying the exclusionary rule in these circumstances would not outweigh the heavy cost of excluding otherwise admissible and highly probative evidence. Leon, 468 U.S. at 910, 104 S. Ct. at 3413.

In closing, we note, as the Supreme Court did in Leon, that the test for reasonable police conduct is objective. 468 U.S. at 919 n.20, 104 S. Ct. at 3419 n.20. The district court found that “there [was] no credible evidence of routine problems with disposing of recalled warrants” and updating records in Dale County, and Herring does not contest that finding. If faulty record-keeping were to become endemic in that county, however, officers in Coffee County might have a difficult time establishing that their reliance on records from their neighboring county was objectively reasonable. The good faith exception to the exclusionary rule does not shelter evidence that was obtained in an unconstitutional arrest or search that was based on objectively unreliable information. See Evans, 514 U.S. at 17, 115 S.Ct. at 1194-95 (O’Connor, J., concurring).