February 17, 2009

Overreacting to Herring

Since the Supreme Court handed down the opinion in Herring v. United States there has been incessant hand wringing on the left that it some how signaled the end of the exclusionary rule as the knew and loved it. They have taken every chance to remind the public of a memo written by Justice Roberts, as a young lawyer in the Reagan administration, voicing his criticism of the rule as evidence of its future demise. Matthew Franck at Bench Memos provides some context and urges them to stop hyperventilating. In taking the New York Times to task Franck writes,

"Breathe into the paper bag, boys. The Herring decision is really pretty ordinary, and simply applies a principle established a quarter century ago in United States v. Leon: that when law enforcement officers rely in good faith on what they believe to be a valid warrant, and that warrant is subsequently found to be invalid, the evidence the officers obtain by virtue of it will not be excluded. The exclusionary rule is not, the Court emphasized in the Leon case, a command of the Constitution itself. It is a remedial rule the Court itself invented as a deterrent to police misconduct. When its application would have no deterrent effect, its use is inappropriate. Leon and Herring are practically indistinguishable."

But as Franck notes, "facts are no deterrent to New York Times writers."