On Tuesday, the Supreme Court heard argument in two Fourth Amendment cases, one involving the application of the exclusionary rule to cases in which an arrest and search are based on police error, and the other concerning justification for the exception to the warrant requirement in the case of a vehicular search incident to arrest.
In Herring v. United States, Bennie Dean Herring challenged a search incident to an arrest that was made based on the erroneous information that he had a warrant on file. At issue was whether the evidence found during that search should be excluded because the warrantless arrest violated the petitioner's Fourth Amendment rights.
The arguing attorneys clashed over how one of the central objectives of the exclusionary rule, the deterrence of police misconduct, should affect the outcome of the case.
Deputy Solicitor General Michael R. Dreeben, arguing for the United States, said deterrence objective would not be achieved through suppression of the evidence in the case, because it involved only an "isolated clerical error in the maintenance of warrants."
In contrast, Stanford Law School professor Pamela S. Karlan, who represented Herring, told the justices, "if you announce that police error is going to lead to the suppression of evidence, the police will do a better job of maintaining their records."
Chief Justice John Roberts Jr. raised the issue of limited police resources in the area of computer recordkeeping: "They probably don't have the latest version of WordPerfect, or whatever it is. They are probably making do with whatever they can under their budget and doing the best they can."
"But there's not a Barney Fife defense to the violation of the Fourth Amendment either," Karlan answered.
Justices asked both attorneys to provide a workable bright-line rule to govern the exclusion of evidence in cases involving police error. Dreeben said that "an isolated and negligent police clerical error in the maintenance of warrant records should not lead to suppression," while Karlan argued for a rule that negligent error by police officers should trigger suppression.
Justice Antonin Scalia seemed concerned by Karlan's statement that the rule the petitioner proposes might require more detailed hearings to determine negligence.
"We have to decide today whether we are going to adopt a rule that down the road will turn every exclusionary request into a pre-trial investigation of the procedures of the police," Scalia said.
FRISKING MOTHER TERESA AND SEARCHING THOMAS JEFFERSON'S CARRIAGE
The other Fourth Amendment case argued Tuesday, Arizona v. Gant, asks whether the warrantless search of a vehicle incident to arrest requires proof of a threat to the safety of police officers or a need to preserve evidence.
After Rodney Gant was arrested and handcuffed in the back of a patrol car, police officers searched his car and found a weapon and cocaine. Gant moved to suppress the evidence found in the search, arguing that neither the safety nor evidence preservation concerns were present because the scene was secure and he was immobilized in the police car. The state of Arizona appealed to the high court an Arizona Supreme Court ruling in favor of Gant.
Arizona Assistant Attorney General Joseph T. Maziarz told the justices that the Court's 1981 decision in New York v. Belton established the "workable straightforward rule" that police officers may search the passenger compartment of vehicles incident to arrest. Requiring justification for the search "is anathema to a bright-line rule," he said.
But the justices questioned Maziarz about the safety rationale underlying the rule, expressing doubt that a suspect handcuffed in the back of a patrol car would truly pose a danger to officers.
Maziarz stated that there were 93 reported cases where arrestees cuffed in the back of a patrol car escaped, and that in one of the cases the arrestee went to his vehicle and led police on a high-speed chase.
Justice David Souter seemed intrigued: "Did he ... have his hands handcuffed behind his back?"
"Yes," Mariaz told him.
"And he was able to drive the car?"
Mariarz replied: "Yes. Well, Your Honor, it's my understanding -- I'm not an expert on this, but it's my understanding from reading some of these cases ..."
"I'd really like to meet him," Souter said, prompting laughter in the courtroom.
"I wouldn't," Scalia quipped. "I'll bet you that in most of those cases ... the felon got out the ... other door of the car while the policeman was searching the vehicle."
Roberts expressed concern that a ruling for Gant would replace a uniform standard with fact-specific analysis of each case.
"The whole point of a bright-line rule is that you don't look at the specific facts," Roberts said to Thomas F. Jacobs, who argued on behalf of Gant. "Here you say the guy is handcuffed and in the back of the car? Well what if he is in the back of the car but not handcuffed? What if there are five people around who might break open the police car and free him? What if there are three people around? You have exactly the same case-by-case inquiry that Belton said we are not going to do."
In response to Maziarz' argument that the Belton rule is workable because officers have applied it for 27 years, Scalia asked for an even more historical perspective.
"That's not a long time," Scalia said. "What was the situation when the Fourth Amendment was adopted? Do you know? If you stopped Thomas Jefferson's carriage to arrest Thomas Jefferson and you pulled him off to the side of the road, could you ... then go and search his carriage?"
Scalia invoked another unlikely figure when contrasting the officer safety concern in vehicular searches to that in searches of a person, in which "no matter how elderly, how eminent, how virtuous the person is, you can frisk."
"I mean, if the police arrest Mother Teresa, they are still entitled to frisk her," Scalia said.
Justice Stephen Breyer was one of several members of the Court who seemed reluctant to fashion a new rule.
"I am finding this case very, very difficult," Breyer told Jacobs. "And the reason is that although I don't think Belton is very logical, it has been the law for 27 years; and I take very seriously, as we all do, the principle of stare decisis."
"I don't know about Thomas Jefferson's automobile. But, nonetheless, no disaster has occurred, and so why would we overrule an earlier case?" Breyer asked.
The also Court heard argument in a third case on Tuesday, Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, which which concerns whether a Qualified Domestic Relations Order is the exclusive means by which a party can waive the right to receive an ex-spouse's pension benefits under the Employee Retirement Income Security Act.
The three-case schedule caused a moment of confusion when, at the beginning of the second argument hour, the chief justice announced the Kennedy case instead of Arizona v. Gant.
"It's still early in the term," he said after he caught his mistake, and then invited Maziarz to the podium to argue.
"Do you have any views on the other case?" Kennedy asked Maziarz.
"None whatsoever, Your Honor," he answered.
Laurel Newby is a senior editor with Law.com.