I don't know the facts of the New Jersey case, but it seems to me the Secret Service agent either made up a story about porn found on DVD's, or some other law enforcement agent lied to the Secret Service agent so that the warrant could be issued. Even if there is a more innocent explanation for the agent's false representation, this hardly seems analogous to a clerical error that kept a withdrawn warrant in a police database.
Judge Stanley Chesler, declining to suppress the results of the search despite the erroneous information upon which the search warrant application was based, apparently relied upon this language in Herring:
“To trigger the exclusionary rule,” [Chief Justice Roberts] wrote, “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.” That price, the chief justice wrote, “is, of course, letting guilty and possibly dangerous defendants go free.”
Roberts' language suggests that police "culpability" should in some unspecified way be balanced against the risk of "letting guilty and possibly dangerous defendants go free." Framed in that language, Roberts seems to be asking: Which is worse? A law-violating (but probably not dangerous) police officer or a law-violating (but possibly dangerous) criminal? How does the Fourth Amendment ever win if that's the question?
The price of not suppressing evidence when police violate the law is the loss of our Fourth Amendment protections. How do we put a pricetag on constitutional privacy rights, other than to remember the wars our nation has fought to protect our Constitution and the freedom it ensures?
If there is no remedy when the police invent facts to secure a search warrant, we can be certain that's what the police will do. If there is no remedy when the police don't bother with a warrant and simply bust down our doors, we can be certain that's what the police will do. The framers were certain that individuals needed protection from their government; that's why the Fourth Amendment is in our Bill of Rights.
Justice Scalia's argument, recently advanced in Hudson v. Michigan (violations of knock-and-announce rules when executing search warrants do not justify suppression), is that individuals whose rights are violated can sue the police (which Justice Scalia apparently views as an effective deterrent to lawlessness), and in any event police agencies have become more "professional" since the exclusionary rule came into effect, making it no longer necessary. The notion that police worry about being sued is laughable (particularly if they think the person whose rights they're violating is guilty, since juries have little sympathy for criminals and will side with the righteous cop every time), and the Justice's faith in police professionalism (faith that TL writers challenged here and here) is undermined by reality:
Justice Scalia cited the work of a criminologist, Samuel Walker, to support his point about increased police professionalism. Professor Walker responded with an opinion article in The Los Angeles Times saying that Justice Scalia had misrepresented his work. Better police work, Professor Walker said, was a consequence of the exclusionary rule rather than a reason to do away with it.
In this article, the indispensable Adam Liptak asks whether the Court is on course to dispense with the exclusionary rule entirely. He notes the probability that four votes already exist to overturn Mapp v. Ohio and sees the holdings in Herring and Hudson as handwriting on the wall.
Justice Kennedy, as usual these days, is the swing vote. He seems prepared to let the Court chip away at the exclusionary rule but has also signaled an unwillingness to abandon it entirely.
Justice Kennedy signed the majority decision [in Hudson], adopting Justice Scalia’s sweeping language. Oddly, though, he also wrote separately to say that “the continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”
Despite the irritating individuals who didn't think it would matter whether Obama or McCain won the election, Liptak reminds us how important the Obama election might turn out to be to the composition of the Supreme Court -- and to the exclusionary rule:
“From the point of view of a liberal concerned about criminal procedure,” said Yale Kamisar, a law professor at the University of San Diego, “we were saved by Barack Obama in the nick of time. If ever there was a court that was establishing the foundations for overthrowing the exclusionary rule, it was this one.”
