Fourth Amendment, exclusionary rule, Herring v. United States, police, authority, deterrence, local agency, good faith, accountability


The debate sparked by Herring v. United States is a microcosm of the quintessential debate about the scope of the Fourth Amendment’s exclusionary rule and ultimately the appropriate breadth of police authority and constitutional review by courts. Offering a new reading of the decision, this article argues that Herring reflects a healthy dosage of real politic and an acknowledgment that American policing is characterized by a fragmented, localized structure with little overview and control, and much reliance on local agencies. Part I presents the authors’ interpretation of Herring as a case hinging upon the question “who made the mistake?” as the decisive element in establishing good faith. The authors rely on the actual holding of Herring in light of its facts, on the Court’s previous decision in Evans, and on the current circuit split with regard to illegal predicate searches to conclude that a narrow and reasonable reading of the Herring doctrine is appropriate. Part II discusses problematic implications, detailing potential abuses and disincentives of not holding one police agency accountable for the mistakes of another. The authors argue that a “moving target” government party to the criminal process is fundamentally unfair to defendants without proper safeguards. Part III offers a solution: a multivariate analysis of the proper deterrence incentives, which will not only provide protection to the citizen tackling “moving targets,” but also clearer and more detailed guidelines for future decisions.

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