In a strong reaffirmation of the exclusionary rule as necessary to enforce the Fourth Amendment, the NJ Supreme Court held that a dispatcher’s unreasonable error about the defendant’s similarly spelled name and wrong DOB made the arrest unreasonable and exclusion was required under the Fourth Amendment and the N.J. Constitution. Herring is inapplicable. State v. Handy, 206 N.J. 39, 18 A.3d 179 (2011), affg 412 N.J. Super. 492, 991 A.2d 281 (2010):
There was nothing reasonable about that conduct in light of what the dispatcher actually knew. Indeed, there were two reasonable paths for her: one was to tell Officer Drogo about the information on the warrant she had before her so that he could probe the issue further with Handy, the other was to say that there was no warrant matching the information she had been given. She chose neither course, deciding instead to tell Officer Drogo that there was an outstanding warrant against the errant Millville bicyclist who had been stopped for riding on the sidewalk, thus precipitating the arrest that could not otherwise have occurred in the face of an ordinance violation, and the cascade of events that followed.
When the actions of the dispatcher, given the facts she knew at the time, are tested against the “touchstone of reasonableness,” Ramirez, supra, 523 U.S. at 71, 118 S. Ct. at 996, 140 L. Ed. 2d at 198, her conduct fell short. Although she had before her every reason to doubt the existence of a warrant for this defendant, she reported the opposite and did not make Officer Drogo aware of the real facts in the matter. Like the courts below, we have no difficulty in concluding that that conduct was constitutionally infirm.
B.
Alternatively, the State contends that even if the dispatcher’s conduct is deemed unreasonable, suppression is unwarranted. In particular the State, citing Herring v. United States, 555 U.S. 135, ___, 129 S. Ct. 695, 702, 172 L. Ed. 2d 496, 507 (2009), argues that the conduct was not deliberate, reckless, grossly negligent, or evidential of systemic carelessness and, under those circumstances, the deterrence rationale of the exclusionary rule would not be advanced by suppression.
. . .
The State properly concedes that this is not an Arizona v. Evans case in that the dispatcher was not attenuated from the arrest, but was an integral link in the law enforcement chain. …
It is axiomatic that our interpretation of our own constitution will not always conform with the view of the federal courts. Indeed, although we look to federal interpretation of the United States Constitution as a guide, we do not view it as requiring lockstep. Thus, we often interpret our own constitution in such a way as to provide greater protections for our citizens than would its federal counterpart. …
We make that point in light of the robust criticism that Herring has drawn. Indeed, many scholars and treatise writers fault Herring for unjustifiably watering down Fourth Amendment protections and, in particular, for failing to consider the non-deterrent rationales underlying the exclusionary rule. See, e.g., Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463, 463 (2009); Thomas K. Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 Chi.-Kent L. Rev. 191, 191-92 (2010); George M. Dery, III, Good Enough for Government Work: The Court’s Dangerous Decision, In Herring v. United States, to Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 Geo. Mason U. C.R. L.J. 1, 27-28 (2009); Wayne R. LaFave, The Smell of Herring: A Critique of the Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. Crim. L. & Criminology 757, 758, 765-66 (2009); see also Wayne R. LaFave, Search and Seizure, § 1.6 at 40-41 (rev. 4th ed. Supp. 2010-11).
. . .
We need not assess whether Herring can be reconciled with our own constitutional standards for, like the Appellate Division, we conclude that this case would not be governed by Herring, in any event. …
