Murderers, thieves, rapists and drug dealers walk freely among us. We count on the police to do the best they can to catch as many of these people as possible, but do not expect that every case will be solved nor every criminal apprehended. The best we can hope for is that those that are caught, whether by their own carelessness or by diligent police work, are brought to justice. For this reason we encourage the police to engage in crime fighting as a competitive and adversarial enterprise. We want them to be relentless, clever, thorough and even aggressive, lest the criminals escape by these same virtues. The Fourth Amendment, however, is concerned not with the effectiveness of police activity, but with its potential to infringe upon individual rights.

Bennie Dean Herring was convicted for illegal possession of drugs and a gun. Police had been watching Herring as he entered the police impound to retrieve something from his truck, and called around to see if there were any outstanding warrants that would allow them to arrest him. Based on an outstanding arrest warrant from a neighboring county, Herring was arrested, and the search incident to arrest revealed the conclusive evidence that resulted in his conviction. The only problem: the arrest warrant had been rescinded five months earlier, and the neighboring police department had failed to make the correction in its computer database. Nevertheless, the Supreme Court held that where probable cause is based on reasonable but mistaken assumptions, the exclusionary rule does not require the suppression of the evidence obtained. The Court reasoned that the minimal deterrent value that an application of the exclusionary rule would serve was outweighed by the costs to society of letting the criminal go free.

The Supreme Court might have waited for a more inflammatory case, but the facts of Herring were sufficient to accomplish what the New York Times referred to as the Roberts Court's "campaign" to abolish the exclusionary rule. I recently spoke with Professor Butler, who stated that the decision was "predictable," since "the Court has been watering down the exclusionary rule for some time." When asked whether this case would mean a measurable erosion of Fourth Amendment protections in practice, Professor Butler explained that "it depends on whether the decision is interpreted narrowly or broadly by the lower courts." Indeed, the Herring decision was interpreted broadly within days, when a federal court in New Jersey refused to suppress evidence of child pornography obtained from a computer, after a warrant had been issued upon false information. The crucial distinction between the New Jersey case and prior exclusionary rule cases: the information had been provided by a Secret Service agent.

The gut reaction of any decent person is probably that the sexual predator does not deserve protection, and that if it takes a false statement from one police agency to another to put him behind bars, so be it. If we accept the Herring decision's view of the exclusionary rule as a balancing of costs and benefits, it would seem that the New Jersey court got it right. But Justice Ginsburg put forward a critical, if understated, answer to the cost/benefit approach in her dissent in Herring. She argued that an absolute application of the exclusionary rule (at least where the origin of the error or violation is the police) is justified on a rightful position theory. That is, by suppressing the fruits of an unconstitutional search or seizure, the police are merely put into the same position they would have been had they not engaged in the unlawful conduct.

The idea seems circular until you take it to its logical end. Imagine if there were no constitutional bar to police freely entering and searching homes at random. Without a doubt, police would be able to uncover substantial criminal activity that would have otherwise gone unnoticed. They would find murder weapons, drugs, gambling activity, and so forth, and the corresponding criminals would be brought to justice. I think the gut reaction of the decent person might be different under these circumstances. It's an extreme example, but Justice Ginsburg would argue that it is different only in degree, not in kind, from the rationale in Herring.

The Fourth Amendment provides no remedy for its violation. Yet early on the Supreme Court realized that to give any effect at all to the Amendment, a rule was necessary to exclude the fruits of police conduct obtained in violation of the Amendment. Of course the reason this is a proper remedy is because it has a deterrent effect on unlawful police conduct. But it seems like the Supreme Court's recent jurisprudence, culminating in the Herring decision, has confused the mechanics of the exclusionary rule with its underlying purpose. By focusing exclusively on the deterrent effect at work in a given case, the Court accepts, and even assumes, that certain unconstitutional police activity is to be tolerated.

When I asked him whether he agreed with Justice Ginsburg's analysis, Professor Butler responded, as professors do, with a question: "When people complain about the exclusionary rule, are they complaining about the rule or about the Fourth Amendment?" Experience and a changing world may have revealed inherent flaws in the Fourth Amendment. Maybe we can no longer afford to share our liberty with thieves and murderers. But if that is the case, the answer is not in gradually chipping away at the Constitution by carefully worded Supreme Court opinions. Rather, as Justice Douglas reasoned in his dissenting opinion in Terry v. Ohio, the answer is and always has been in Constitutional amendment.