Evidence rule to be reviewed

Times Staff Writer

The Supreme Court agreed Tuesday to reconsider the reach of the “exclusionary rule,” a doctrine that has been controversial since the 1960s because it requires judges to throw out evidence if it was obtained improperly by the police.

Several of the court’s conservatives, including Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, have signaled they would like to rein in this rule.

Every day, police officers stop cars or make arrests by relying on information in the files or on the computers of a police department. On occasion, the information is outdated or inaccurate. What should be done, then, if the officer finds drugs or guns in a stopped car, only to learn later that he relied on faulty information when he stopped the vehicle?

Judges have been divided on that question. Some have said the evidence is tainted and should be suppressed. Others have said the evidence should be used if the officer was not to blame for the error.

The high court said it would hear next fall a drug case from Alabama, Herring vs. United States, to decide the question.


In July 2004, Bennie D. Herring went to a police station to retrieve several items from an impounded car. Investigator Mark Anderson saw him and began calling around to see if there were any outstanding warrants against Herring.

A police employee from a neighboring county said there was such a warrant, and then Anderson and another officer set off in pursuit of Herring. They pulled him over, arrested him and found methamphetamine in his pocket and a gun in his car. Minutes later, the police employee called back to say there was a mistake. The warrant against Herring had been revoked, but the entry in the computer file had not been updated.

When Herring went to trial on federal drug charges, a judge refused to suppress the evidence against him. The U.S. Court of Appeals in Atlanta agreed, saying it made no sense “to scuttle a case” when the arresting officer was “entirely innocent of any wrongdoing or carelessness.”

Two Stanford law professors appealed on Herring’s behalf. They argued the that court should not allow arrests and prosecutions that were triggered by computer errors and faulty record-keeping by the police.

The high court first announced the exclusionary rule in a 1914 case involving a federal prosecution for illegally sending lottery tickets in the mail. The rule was meant to enforce the 4th Amendment’s ban on “unreasonable searches and seizures.”

Its aim was to deter officers from breaking the law to obtain evidence.

It gained wide attention only after 1961 when the court extended the rule to cover state troopers and local police.

The rule has always had its share of skeptics. As Benjamin N. Cardozo, then a New York state judge, famously put it: “The criminal goes free because the constable has blundered.”