Unreasonable Dicta -- Or Why Herring Stinks

Much in the law turns on the mental state of the the parties involved in a dispute. Three mental states matter both in terms of the criminal law and civil rights law: intent, recklessness and negligence. Confusing these can yield disastrous consequences.

Today's United States Supreme Court decision in Herring v. United States is illustrative. A police department reported that there was an arrest warrant for a man named Bennie Dean Herring. As a result, he was arrested and searched. Police found drugs and a gun on his person. Because Herring was already a convicted felon, he was convicted of drug and firearms charges.

But Mr. Herring's arrest was unlawful, the Court noted. It turns out there was no arrest warrant outstanding for Mr. Herring. There had not been such a warrant for five months; the warrant had been recalled almost immediately after it was issued. No one at the police department noticed or removed the bad warrant from its database. Bottom line? Herring should never have been arrested. And, had he not been arrested, he would not have lawfully been searched.

Mr. Herring moved to suppress the evidence arising from unlawful arrest. The District Court denied his motion, so he took an appeal to the Eleventh Circuit Court of Appeals. That court stumbled some with its words. It described the police failure to remove a bad warrant from its database as "at the very least negligence." It then went on to say the error was "a negligent failure to act, not a deliberate or tactical choice to act."

From these casual words, the Supreme Court sculpted a new limitation on the requirement that evidence seized as a result of a Fourth Amendment violation be suppressed. When cops are merely negligent, suppression isn't required. It is another in a series of 5-4 decisions of great constitutional import.

Intentional acts are those purposely done; the actor has a conscious objective in mind, such as to rape, pillage, plunder or seize evidence regardless of the law's limits. Reckless acts are those unjustifiably done knowing full well that there is an substantial risk of harm. Finally, a negligent act is one done without due regard for care we expect of folks under normal circumstance. Like it or not, these are lodestars in the law; lawyers and judges learn to navigate them through teethbreaking struggles over how best to assess and characterize life's chaos.

So what would you call a police department's failure to notice that it was holding a stale arrest warrant for five months? Understand that the significance of this act means that should the police ever confront the person for whom the warrant is maintained, whether it be at a routine traffice stop or otherwise, they will regard the warrant as a court order requiring an arrest. There is at least a powerful argument that a data entry system that fails to notice for five months that it carries an invalid order to arrest someone is reckless -- an innocent man can be harmed. This is more than a bookkeeping error.

The suppression of evidence unlawfully obtained is controversial. The words suppression do not appear in the Constitution; hence necromancers in love with the intentions of the framers cry foul. But the doctrine does serve as a powerful deterrent and incentive to Government to get it right. When we say that mere carelessness resulting in unlawful arrests is all right, it sounds a lot like telling surgeons that handwashing is merely optional.

Most troubling about the Herring decision is its reliance on the casual language of the Eleventh Circuit. That appeals court never held that the police conduct was mere negligence. It merely asserted that the conduct was not deliberate, i.e., intentional, or tactical. Referring to the conduct as "at the very least negligent" is what lawyers call dicta, language perhaps necessary to make a larger point, but not what a case stands for. One reason legal education takes a few years is that it takes time to distinguish mere dicta from a case's holding.

Herring looks an awful lot like a case decided on the basis of dicta. It is one thing to say that negligence is not enough to support suppression of negligence. It is quite another thing to rely on a throw away remark by an appellate court to conclude that a stale warrant was kept alive as a result of mere carelessness.

The better course would have been to remand to the trial court with instructions to make a finding about mental state of those officers, and the real tortfeasor is as yet unnamed, involved. This was too important an issue to be decided on the fly. Did the court really mean to suggest that when the police hold a bad warrant for five months and a person is harmed, all is well in this the best of all possible worlds?


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