492 F.3d 1212 (11th Cir. 2007), 06-10795, United States v. Herring

Docket Nº:06-10795.
Citation:492 F.3d 1212
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bennie Dean HERRING, Defendant-Appellant.
Case Date:July 17, 2007
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

Page 1212

492 F.3d 1212 (11th Cir. 2007)

UNITED STATES of America, Plaintiff-Appellee,


Bennie Dean HERRING, Defendant-Appellant.

No. 06-10795.

United States Court of Appeals, Eleventh Circuit.

July 17, 2007

Page 1213

Ronald W. Wise (Court-Appointed), Montgomery, AL, for Herring.

Verne H. Spears, Montgomery, AL, for U.S.

Appeal from the United States District Court for the Middle District of Alabama

Before CARNES, PRYOR and FARRIS, [*] Circuit Judges.

Page 1214

CARNES, Circuit Judge:

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?


On a July afternoon in 2004, Bennie Dean Herring drove his pickup truck to the Coffee County, Alabama Sheriff's Department to check on another of his trucks, which was impounded in the Department's lot. As Herring was preparing to leave the Sheriff's Department, Coffee County Investigator Mark Anderson arrived at work. Anderson knew Herring and had reason to suspect that there might be an outstanding warrant for his arrest. Anderson asked Sandy Pope, the warrant clerk for the Coffee County Sheriff's Department, to check the county database. She did and told Anderson that she saw no active warrants for Herring in Coffee County.

Investigator Anderson asked Pope to call the Sheriff's Department in neighboring Dale County to see if there were any outstanding warrants for Herring there. Pope telephoned Sharon Morgan, the Dale County warrant clerk, who checked her database and told Pope that there was an active warrant in that county charging Herring with failure to appear on a felony charge. Pope relayed that information to Anderson.

Acting quickly on the information, Investigator Anderson and a Coffee County deputy sheriff followed Herring as he drove away from the Sheriff's Department. They pulled Herring over and arrested him pursuant to the Dale County warrant, and they searched both his person and the truck incident to the arrest. The search turned up some methamphetamine in Herring's pocket and a pistol under the front seat of his truck. All of that happened in Coffee County.

Meanwhile back in Dale County, Warrant Clerk Morgan was trying in vain to locate a copy of the actual warrant for Herring's arrest. After she could not find one, she checked with the Dale County Clerk's Office, which informed her that the warrant had been recalled. Morgan immediately called Pope, her counterpart in Coffee County, to relay this information, and Pope transmitted it to the two Coffee County arresting officers. Only ten to fifteen minutes had elapsed between the time that Morgan in Dale County had told Pope that an active warrant existed and the time that Morgan called her back to correct that statement. In that short interval, however, the Coffee County officers had acted on the initial information by arresting Herring and carrying out the searches incident to that arrest.

As a result of the contraband found during the searches, Herring was indicted on charges of possessing methamphetamine in violation of 21 U.S.C. § 844(a), and being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He moved to suppress any evidence of the methamphetamine and firearm on grounds

Page 1215

that the searches that turned them up were not incident to a lawful arrest, because the arrest warrant on which the officers acted had been rescinded.

The magistrate judge recommended denying the motion to suppress. He found that the arresting officers conducted their search in a good faith belief that the arrest warrant was still outstanding, and that they had found the drugs and firearm before learning the warrant had been recalled. The magistrate judge concluded that there was "simply no reason to believe that application of the exclusionary rule here would deter the occurrence of any future mistakes." The district court adopted the magistrate judge's recommendation and made the additional finding that the erroneous warrant information appeared to be the fault of Dale County Sheriff's Department personnel instead of anyone in Coffee County.

A jury convicted Herring of both counts, and he was...

To continue reading