U.S. v. Herring

• Decision Date: 17 July 2007
• Docket Number: No. 06-10795.,06-10795.
• Citation: 492 F.3d 1212
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bennie Dean HERRING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

492 F.3d 1212

UNITED STATES of America, Plaintiff-Appellee, v. Bennie Dean HERRING, Defendant-Appellant.

No. 06-10795.

United States Court of Appeals, Eleventh Circuit.

July 17, 2007.

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

Verne H. Speirs, 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.

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?

I.

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 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 sentenced to 27 months imprisonment. His sole contention on appeal is that the district court erred in denying his motion to suppress the drugs and firearm that were found during the search of his truck.

II.

The parties agree on the central facts. The Coffee County officers made the arrest and carried out the searches incident to it based on their good faith, reasonable belief that there was an outstanding warrant for Herring in Dade County. They found the drugs and firearm before learning that the warrant had been recalled. The erroneous information about the warrant resulted from the negligence of someone in the Dale County Sheriff's Department, and no one in Coffee County contributed to the mistake. The only dispute is whether, under these facts, the exclusionary rule requires the suppression of the firearm and drugs.

A.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." United States Const. Amend. IV. The searches of Herring's person and truck cannot be justified as incident to a lawful arrest because the arrest was not lawful. There was no probable cause for the arrest and the warrant had been rescinded. That means the searches violated Herring's Fourth Amendment rights, but it does not mean that the evidence obtained through them must be suppressed. As the Supreme Court has told us on more than one occasion, whether to apply the exclusionary rule is "an issue separate from the question [of] whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct." United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 3412, 82 L.Ed.2d 677 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 2324, 76 L.Ed.2d 527 (1983)).

The Leon case is the premier example of the distinction between finding a constitutional violation and excluding evidence based on that violation. Leon held that the exclusionary rule does not bar the use of evidence obtained by officers acting in good faith reliance on a warrant which is later found not to be supported by probable cause. Id. at 922, 104 S.Ct. at 3420. The Court's analysis of whether the exclusionary rule should be applied to constitutional violations stemming from mistakes by judicial officers carried out by law enforcement officers proceeded in two steps. First, the Court considered whether the rule should be applied because it might improve the performance of judges and magistrate judges, and the Court concluded that was not a good enough reason for applying it. See id. at 916-17, 104 S.Ct. at 3417-18 ("[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates."); see also Illinois v. Krull, 480 U.S. 340, 348, 107 S.Ct. 1160, 1166, 94 L.Ed.2d 364 (1987). Second, the Court considered whether, and if so how much, application of the exclusionary rule in that circumstance might be expected to improve the behavior of law enforcement officers, and it concluded that any slight deterrent benefit provided by applying the rule would be outweighed by the heavy costs of excluding relevant and material evidence. Leon, 468 U.S. at 920-22, 104 S.Ct. at 3419-20 ("We conclude that the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion."); see also Krull, 480 U.S. at 348, 107 S.Ct. at 1166; United States v. Accardo, 749 F.2d 1477, 1480 (11th Cir.1985) (characterizing Leon as establishing that the exclusionary rule "remains viable only as a deterrent to police misconduct").

A decade later, in Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995), the Court extended Leon's "good faith exception" to the exclusionary rule to circumstances in which officers rely in good faith on a court employee's representation that a valid warrant existed when, in fact, the warrant has previously been quashed. Id. at 14, 115 S.Ct. at 1193. The government contends that Evans involved essentially the same situation as this case and that the Evans decision standing alone justifies the admission of the illegally obtained evidence here. We think, however, that this effort by the government to justify its capture of Herring red-handed relies on a red herring. The Supreme Court in Evans expressly declined to address whether the exclusionary rule should be applied when police personnel rather than court employees are the source of the error, id. at 15 n. 5, 115 S.Ct. at 1194 n. 5, thereby disavowing any decision on the issue the government argues the Court decided.

For guidance on this issue we return to Leon. The opinion in that case instructs us that "[w]hether the exclusionary sanction is appropriately imposed in a particular case . . . must be resolved by weighing the costs and benefits of preventing the use in the prosecution's case in chief of inherently trustworthy tangible evidence." 468 U.S. at 906, 104 S.Ct. at 3412. A rule that denies the jury access to probative evidence "must be carefully limited to the circumstances in which it will pay its way by deterring official lawlessness." Gates,...