IL: Use of an old warrant list obviates Herring

Where the police intentionally used an old warrant list, they could not rely on Herring to avoid application of the exclusionary rule. People v. Morgan, 388 Ill. App. 3d 252, 327 Ill. Dec. 316, 901 N.E.2d 1049 (2009):

In this case, the State failed to meet its burden of proof that the good-faith exception should apply, and exclusion was the proper remedy. The first consideration in determining whether the exclusionary rule should apply–misconduct by the police–clearly applies here. See Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (“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”). Although the trial court found the officers acted reasonably and without any negligence, that conclusion was against the manifest weight of the evidence. The officers testified that they typically obtained a warrant list printed the same day as their visit to the police department. In this instance, they knew they were relying on a warrant list that was up to three days old. They made no attempt to verify the continued existence of the warrant before approaching defendant’s residence. Doing so apparently would have indicated that the warrant was inactive. Deputy Brooke testified that less than five minutes passed between obtaining the warrant list and arriving at defendant’s house. The events at defendant’s house appeared to have occurred over a short period of time. Nonetheless, when Deputy Brooke called the communications center, LivCom, he immediately learned the warrant was no longer valid. The reliance on the old warrant list and the failure to check on the continued validity of the warrant constituted, at the very least, gross negligence, if not reckless or wilful misconduct. See, e.g., Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 702 (noting that “the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence” but concluding that the failure to update the warrant system was not “so objectively culpable as to require exclusion”); Michigan v. Tucker, 417 U.S. 433, 447, 41 L. Ed. 2d 182, 194, 94 S. Ct. 2357, 2365 (1974) (“The deterrent purpose of the exclusionary rule necessarily assumes that the police have engaged in wilful, or at the very least negligent, conduct which has deprived the defendant of some right”).

The second condition necessary to warrant application of the exclusionary rule–whether application of the rule would result in appreciable deterrence–also applies here. See Herring I, 492 F.3d at 1217 (listing the “three conditions that must occur to warrant application of the exclusionary rule”). Unlike court employees, as was the case in Evans, police officers are the very actors the exclusionary rule was meant to deter. See, e.g., People v. Boyer, 305 Ill. App. 3d 374, 379, 713 N.E.2d 655, 658, 239 Ill. Dec. 124 (1999) (applying the exclusionary rule where the prosecutor failed to get a stale warrant recalled, noting that excluding the evidence would deter similar constitutional violations). Moreover, the officers’ reliance on an up to three-day-old warrant list is conduct that can be deterred.

Third, the deterrent benefit of excluding the evidence outweighs the social costs. Specifically, the cost of excluding the evidence is outweighed by the strong deterrent effect of exclusion. See, e.g., Herring II, U.S. at , 172 L. Ed. 2d at 507, 129 S. Ct. at 703 (“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”).