The End of an Era: Closing the Exclusionary Debate Under Herring v. United States

For nearly a century, aggressive judicial correction of government abuses has protected individual privacy rights. Favoring result over method, many of the Supreme Court’s remedies attract harsh criticism for their heavy-handed but uncertain application—subject to constant metamorphoses while maintaining a distinctive bite. Perhaps most galling to critics is the policy of exclusion, inciting spirited debate since its inception. 1 Despite the name of the doctrine, the exclusionary “rule” of the Fourth Amendment looks nothing like a “rule” at all thanks to its numerous and expansive exceptions. Historically amorphous, even slight variations on fact patterns reap widely disparate judgments when the suppression of evidence is at stake. Indeed, the rule’s good faith exception, incontrovertibly established in United States v. Leon, 2 has been consistently redrafted to account for those wrinkles encountered in the unpredictable realm of law enforcement. 3 Such ambiguity has likely been tolerated because all incarnations of the exception have thus far hinged upon one unifying principle: those members of the police department involved in disputed searches and seizures have acted with objective reasonableness. This stasis is now threatened, however, by the Court’s 5-4 decision in Herring v. United States, where officers who sought to invoke the exception, despite error on the part of internal personnel, were granted immunity from exclusionary tenets.

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