OPINION OF THE COURT HERRING V. UNITED STATES 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-513 BENNIE DEAN HERRING, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states court of
appeals for the eleventh circuit

															[January 14, 2009]

															   Chief Justice Roberts delivered
the opinion of the Court.

															   The Fourth Amendment forbids
“unreasonable searches and seizures,” and this usually requires the
police to have probable cause or a warrant before making an arrest.
What if an officer reasonably believes there is an outstanding
arrest warrant, but that belief turns out to be wrong because of a
negligent bookkeeping error by another police employee? The parties
here agree that the ensuing arrest is still a violation of the
Fourth Amendment, but dispute whether contraband found during a
search incident to that arrest must be excluded in a later
prosecution.

															   Our cases establish that such suppression is
not an automatic consequence of a Fourth Amendment violation.
Instead, the question turns on the culpability of the police and
the potential of exclusion to deter wrongful police conduct. Here
the error was the result of isolated negligence attenuated from the
arrest. We hold that in these circumstances the jury should not be
barred from considering all the evidence.

															I

															   On July 7, 2004, Investigator
Mark Anderson learned that Bennie Dean Herring had driven to the
Coffee County Sheriff’s Department to retrieve something from his
impounded truck. Herring was no stranger to law enforcement, and
Anderson asked the county’s warrant clerk, Sandy Pope, to check for
any outstanding warrants for Herring’s arrest. When she found none,
Anderson asked Pope to check with Sharon Morgan, her counterpart in
neighboring Dale County. After checking Dale County’s computer
database, Morgan replied that there was an active arrest warrant
for Herring’s failure to appear on a felony charge. Pope relayed
the information to Anderson and asked Morgan to fax over a copy of
the warrant as confirmation. Anderson and a deputy followed Herring
as he left the impound lot, pulled him over, and arrested him. A
search incident to the arrest revealed methamphetamine in Herring’s
pocket, and a pistol (which as a felon he could not possess) in his
vehicle. App. 17–23.

															   There had, however, been a
mistake about the warrant. The Dale County sheriff’s computer
records are supposed to correspond to actual arrest warrants, which
the office also maintains. But when Morgan went to the files to
retrieve the actual warrant to fax to Pope, Morgan was unable to
find it. She called a court clerk and learned that the warrant had
been recalled five months earlier. Normally when a warrant is
recalled the court clerk’s office or a judge’s chambers calls
Morgan, who enters the information in the sheriff’s computer
database and disposes of the physical copy. For whatever reason,
the information about the recall of the warrant for Herring did not
appear in the database. Morgan immediately called Pope to alert her
to the mixup, and Pope contacted Anderson over a secure radio. This
all unfolded in 10 to 15 minutes, but Herring had already been
arrested and found with the gun and drugs, just a few hundred yards
from the sheriff’s office. Id., at 26, 35–42, 54–55.

															   Herring was indicted in the District Court for
the Middle District of Alabama for illegally possessing the gun and
drugs, violations of 18 U. S. C. §922(g)(1) and 21 U.
S. C. §844(a). He moved to suppress the evidence on the ground
that his initial arrest had been illegal because the warrant had
been rescinded. The Magistrate Judge recommended denying the motion
because the arresting officers had acted in a good-faith belief
that the warrant was still outstanding. Thus, even if there were a
Fourth Amendment violation, there was “no reason to believe that
application of the exclusionary rule here would deter the
occurrence of any future mistakes.” App. 70. The District Court
adopted the Magistrate Judge’s recommendation, 451 F. Supp. 2d
1290 (2005), and the Court of Appeals for the Eleventh Circuit
affirmed, 492 F. 3d 1212 (2007).

															   The Eleventh Circuit found that the arresting
officers in Coffee County “were entirely innocent of any wrongdoing
or carelessness.” id., at 1218. The court assumed that
whoever failed to update the Dale County sheriff’s records was also
a law enforcement official, but noted that “the conduct in question
[wa]s a negligent failure to act, not a deliberate or tactical
choice to act.” Ibid. Because the error was merely
negligent and attenuated from the arrest, the Eleventh Circuit
concluded that the benefit of suppressing the evidence “would be
marginal or nonexistent,” ibid. (internal quotation marks
omitted), and the evidence was therefore admissible under the
good-faith rule of United States v. Leon , 468 U. S. 897 (1984).

															   Other courts have required exclusion of
evidence obtained through similar police errors, e.g ., Hoay v. State , 348 Ark. 80, 86–87, 71
S. W. 3d 573, 577 (2002), so we granted Herring’s
petition for certiorari to resolve the conflict, 552 U. S. ___
(2008). We now affirm the Eleventh Circuit’s judgment.

															II

															   When a probable-cause
determination was based on reasonable but mistaken assumptions, the
person subjected to a search or seizure has not necessarily been
the victim of a constitutional violation. The very phrase “probable
cause” confirms that the Fourth Amendment does not demand all
possible precision. And whether the error can be traced to a
mistake by a state actor or some other source may bear on the
analysis. For purposes of deciding this case, however, we accept
the parties’ assumption that there was a Fourth Amendment
violation. The issue is whether the exclusionary rule should be
applied.

															A

															   The Fourth Amendment protects
“[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,”
but “contains no provision expressly precluding the use of evidence
obtained in violation of its commands,” Arizona v. Evans , 514 U. S.
1 , 10 (1995). Nonetheless, our decisions establish an
exclusionary rule that, when applicable, forbids the use of
improperly obtained evidence at trial. See, e.g. , Weeks v. United States , 232 U. S. 383 , 398 (1914). We have
stated that this judicially created rule is “designed to safeguard
Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra , 414 U. S. 338 , 348
(1974).

															   In analyzing the applicability of
the rule, Leon admonished that we must consider the
actions of all the police officers involved. 468 U. S., at 923, n.
24 (“It is necessary to consider the objective reasonableness, not
only of the officers who eventually executed a warrant, but also of
the officers who originally obtained it or who provided information
material to the probable-cause determination”). The Coffee County
officers did nothing improper. Indeed, the error was noticed so
quickly because Coffee County requested a faxed confirmation of the
warrant.

															   The Eleventh Circuit concluded, however, that
somebody in Dale County should have updated the computer database
to reflect the recall of the arrest warrant. The court also
concluded that this error was negligent, but did not find it to be
reckless or deliberate. 492 F. 3d, at 1218.[ Footnote 1 ] That fact is crucial to our holding
that this error is not enough by itself to require “the extreme
sanction of exclusion.” Leon , supra , at 916.

															B

															   1. The fact that a Fourth
Amendment violation occurred— i.e. , that a search or arrest
was unreasonable—does not necessarily mean that the exclusionary
rule applies. Illinois v. Gates , 462 U. S. 213 , 223
(1983). Indeed, exclusion “has always been our last resort, not our
first impulse,” Hudson v. Michigan , 547 U. S. 586 , 591
(2006), and our precedents establish important principles that
constrain application of the exclusionary rule.

															   First, the exclusionary rule is
not an individual right and applies only where it “ ‘result[s]
in appreciable deterrence.’ ” Leon , supra, at 909 (quoting United States v. Janis , 428 U. S. 433 , 454
(1976)). We have repeatedly rejected the argument that exclusion is
a necessary consequence of a Fourth Amendment violation. Leon,
supra, at 905–906; Evans , supra, at 13–14; Pennsylvania Bd. of Probation and Parole v. Scott , 524
U. S. 357 , 363 (1998). Instead we have focused on the efficacy
of the rule in deterring Fourth Amendment violations in the future.
See Calandra , supra , at 347–355; Stone v. Powell , 428 U. S. 465 , 486
(1976).[ Footnote 2 ]

															   In addition, the benefits of deterrence must
outweigh the costs. Leon , supra , at 910. “We have
never suggested that the exclusionary rule must apply in every
circumstance in which it might provide marginal deterrence.” Scott , supra, at 368. “[T]o the extent that
application of the exclusionary rule could provide some incremental
deterrent, that possible benefit must be weighed against [its]
substantial social costs.” Illinois v. Krull , 480 U. S. 340 , 352–353 (1987)
(internal quotation marks omitted). The principal cost of applying
the rule is, of course, letting guilty and possibly dangerous
defendants go free—something that “offends basic concepts of the
criminal justice system.” Leon , supra, at 908.
“[T]he rule’s costly toll upon truth-seeking and law enforcement
objectives presents a high obstacle for those urging [its]
application.” Scott , supra, at 364–365 (internal
quotation marks omitted); see also United States v. Havens , 446
U. S. 620 , 626–627 (1980); United States v. Payner , 447
U. S. 727 , 734 (1980).

															   These principles are reflected in the holding
of Leon : When police act under a warrant that is invalid
for lack of probable cause, the exclusionary rule does not apply if
the police acted “in objectively reasonable reliance” on the
subsequently invalidated search warrant. 468 U. S., at 922. We
(perhaps confusingly) called this objectively reasonable reliance
“good faith.” Ibid. , n. 23. In a companion case, Massachusetts v. Sheppard , 468 U. S. 981 (1984), we
held that the exclusionary rule did not apply when a warrant was
invalid because a judge forgot to make “clerical corrections” to
it. Id., at 991.

															   Shortly thereafter we extended these holdings
to warrantless administrative searches performed in good-faith
reliance on a statute later declared unconstitutional. Krull , supra , at 349–350. Finally, in Evans , 514 U. S.
1 , we applied this good-faith rule to police who reasonably
relied on mistaken information in a court’s database that an arrest
warrant was outstanding. We held that a mistake made by a judicial
employee could not give rise to exclusion for three reasons: The
exclusionary rule was crafted to curb police rather than judicial
misconduct; court employees were unlikely to try to subvert the
Fourth Amendment; and “most important, there [was] no basis for
believing that application of the exclusionary rule in [those]
circumstances” would have any significant effect in deterring the
errors. Id., at 15. Evans left unresolved
“whether the evidence should be suppressed if police personnel were
responsible for the error,”[ Footnote 3 ] an issue not argued by the State in that case, id., at 16, n. 5, but one that we now confront.

															   2. The extent to which the exclusionary rule
is justified by these deterrence principles varies with the
culpability of the law enforcement conduct. As we said in Leon , “an assessment of the flagrancy of the police
misconduct constitutes an important step in the calculus” of
applying the exclusionary rule. 468 U. S., at 911. Similarly, in Krull we elaborated that “evidence should be suppressed
‘only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that the
search was unconstitutional under the Fourth Amendment.’ ” 480
U. S., at 348–349 (quoting United States v. Peltier , 422 U. S. 531 , 542
(1975)).

															   Anticipating the good-faith exception to the
exclusionary rule, Judge Friendly wrote that “[t]he beneficent aim
of the exclusionary rule to deter police misconduct can be
sufficiently accomplished by a practice . . . outlawing evidence
obtained by flagrant or deliberate violation of rights.” The Bill
of Rights as a Code of Criminal Procedure, 53 Calif. L. Rev.
929, 953 (1965) (footnotes omitted); see also Brown v. Illinois , 422 U. S. 590 , 610–611
(1975) (Powell, J., concurring in part) (“[T]he deterrent value of
the exclusionary rule is most likely to be effective” when
“official conduct was flagrantly abusive of Fourth Amendment
rights”).

															   Indeed, the abuses that gave rise to the
exclusionary rule featured intentional conduct that was patently
unconstitutional. In Weeks, 232 U. S. 383 , a foundational
exclusionary rule case, the officers had broken into the
defendant’s home (using a key shown to them by a neighbor),
confiscated incriminating papers, then returned again with a U. S.
Marshal to confiscate even more. Id ., at 386. Not only did
they have no search warrant, which the Court held was required, but
they could not have gotten one had they tried. They were so lacking
in sworn and particularized information that “not even an order of
court would have justified such procedure.” Id ., at
393–394. Silverthorne Lumber Co. v. United
States , 251 U.
S. 385 (1920), on which petitioner repeatedly relies, was
similar; federal officials “without a shadow of authority” went to
the defendants’ office and “made a clean sweep” of every paper they
could find. Id. , at 390. Even the Government seemed to
acknowledge that the “seizure was an outrage.” Id., at
391.

															   Equally flagrant conduct was at issue in Mapp v. Ohio , 367 U. S. 643 (1961),
which overruled Wolf v. Colorado , 338 U. S. 25 (1949), and
extended the exclusionary rule to the States. Officers forced open
a door to Ms. Mapp’s house, kept her lawyer from entering,
brandished what the court concluded was a false warrant, then
forced her into handcuffs and canvassed the house for obscenity.
367 U. S., at 644–645. See Friendly, supra , at 953, and n.
127 (“[T]he situation in Mapp ” featured a “flagrant or
deliberate violation of rights”). An error that arises from
nonrecurring and attenuated negligence is thus far removed from the
core concerns that led us to adopt the rule in the first place. And
in fact since Leon , we have never applied the rule to
exclude evidence obtained in violation of the Fourth Amendment,
where the police conduct was no more intentional or culpable than
this.

															   3. To trigger the exclusionary rule, police
conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system. As laid
out in our cases, the exclusionary rule serves to deter deliberate,
reckless, or grossly negligent conduct, or in some circumstances
recurring or systemic negligence. The error in this case does not
rise to that level.[ Footnote
4 ]

															   Our decision in Franks v. Delaware , 438 U. S. 154 (1978),
provides an analogy. Cf. Leon , supra , at 914. In Franks , we held that police negligence in obtaining a
warrant did not even rise to the level of a Fourth Amendment
violation, let alone meet the more stringent test for triggering
the exclusionary rule. We held that the Constitution allowed
defendants, in some circumstances, “to challenge the truthfulness
of factual statements made in an affidavit supporting the warrant,”
even after the warrant had issued. 438 U. S., at 155–156. If those
false statements were necessary to the Magistrate Judge’s
probable-cause determination, the warrant would be “voided.” Ibid. But we did not find all false statements relevant:
“There must be allegations of deliberate falsehood or of reckless
disregard for the truth,” and “[a]llegations of negligence or
innocent mistake are insufficient.” Id ., at 171.

															   Both this case and Franks concern
false information provided by police. Under Franks ,
negligent police miscommunications in the course of acquiring a
warrant do not provide a basis to rescind a warrant and render a
search or arrest invalid. Here, the miscommunications occurred in a
different context—after the warrant had been issued and
recalled—but that fact should not require excluding the evidence
obtained.

															   The pertinent analysis of deterrence and
culpability is objective, not an “inquiry into the subjective
awareness of arresting officers,” Reply Brief for Petitioner 4–5.
See also post , at 10, n. 7 (Ginsburg, J.,
dissenting). We have already held that “our good-faith inquiry is
confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the search
was illegal” in light of “all of the circumstances.” Leon ,
468 U. S., at 922, n. 23. These circumstances frequently
include a particular officer’s knowledge and experience, but that
does not make the test any more subjective than the one for
probable cause, which looks to an officer’s knowledge and
experience, Ornelas v. United States , 517 U. S. 690 , 699–700
(1996), but not his subjective intent, Whren v. United
States , 517 U.
S. 806 , 812–813 (1996).

															   4. We do not suggest that all recordkeeping
errors by the police are immune from the exclusionary rule. In this
case, however, the conduct at issue was not so objectively culpable
as to require exclusion. In Leon we held that “the
marginal or nonexistent benefits produced by suppressing evidence
obtained in objectively reasonable reliance on a subsequently
invalidated search warrant cannot justify the substantial costs of
exclusion.” 468 U. S., at 922. The same is true when evidence is
obtained in objectively reasonable reliance on a subsequently
recalled warrant.

															   If the police have been shown to be reckless
in maintaining a warrant system, or to have knowingly made false
entries to lay the groundwork for future false arrests, exclusion
would certainly be justified under our cases should such misconduct
cause a Fourth Amendment violation. We said as much in Leon , explaining that an officer could not “obtain a
warrant on the basis of a ‘bare bones’ affidavit and then rely on
colleagues who are ignorant of the circumstances under which the
warrant was obtained to conduct the search.” Id. , at 923,
n. 24 (citing Whiteley v. Warden, Wyo. State
Penitentiary , 401 U. S. 560 , 568
(1971)). Petitioner’s fears that our decision will cause police
departments to deliberately keep their officers ignorant, Brief for
Petitioner 37–39, are thus unfounded.

															   The dissent also adverts to the possible
unreliability of a number of databases not relevant to this case. Post , at 8–9. In a case where systemic errors were
demonstrated, it might be reckless for officers to rely on an
unreliable warrant system. See Evans , 514 U. S., at 17
(O’Connor, J., concurring) (“Surely it would not be
reasonable for the police to rely . . . on a recordkeeping system .
. . that routinely leads to false arrests” (second
emphasis added)); Hudson , 547 U. S., at 604 (Kennedy, J.,
concurring) (“If a widespread pattern of violations were
shown … there would be reason for grave concern” (emphasis added)).
But there is no evidence that errors in Dale County’s system are
routine or widespread. Officer Anderson testified that he had never
had reason to question information about a Dale County warrant,
App. 27, and both Sandy Pope and Sharon Morgan testified that they
could remember no similar miscommunication ever happening on their
watch, id ., at 33, 61–62. That is even less error than in
the database at issue in Evans , where we also found
reliance on the database to be objectively reasonable. 514 U. S.,
at 15 (similar error “every three or four years”). Because no such
showings were made here, see 451 F. Supp. 2d, at
1292,[ Footnote 5 ] the Eleventh
Circuit was correct to affirm the denial of the motion to
suppress.

															*  *  *

															   Petitioner’s claim that police
negligence automatically triggers suppression cannot be squared
with the principles underlying the exclusionary rule, as they have
been explained in our cases. In light of our repeated holdings that
the deterrent effect of suppression must be substantial and
outweigh any harm to the justice system, e.g ., Leon , 468 U. S., at 909–910, we conclude that when police
mistakes are the result of negligence such as that described here,
rather than systemic error or reckless disregard of constitutional
requirements, any marginal deterrence does not “pay its way.” Id., at 907–908, n. 6 (internal quotation marks
omitted). In such a case, the criminal should not “go free because
the constable has blundered.” People v. Defore ,
242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (opinion of
the Court by Cardozo, J.).

															   The judgment of the Court of
Appeals for the Eleventh Circuit is affirmed.

															It is so ordered. Footnote 1 At an earlier point in its opinion, the
Eleventh Circuit described the error as “ ‘at the very least
negligent,’ ” 492 F. 3d 1212, 1217 (2007) (quoting Michigan v. Tucker , 417 U. S. 433 , 447
(1974)). But in the next paragraph, it clarified that the error was
“a negligent failure to act, not a deliberate or tactical choice to
act,” 492 F. 3d, at 1218. The question presented treats the
error as a “negligen[t]” one, see Pet. for Cert. i; Brief in
Opposition (I), and both parties briefed the case on that
basis. Footnote 2 Justice Ginsburg’s dissent champions what she
describes as “ ‘a more majestic conception’ of . . . the
exclusionary rule,” post , at 5 (quoting Arizona v. Evans , 514 U. S.
1 , 18 (1995) (Stevens, J., dissenting)), which would exclude
evidence even where deterrence does not justify doing so. Majestic
or not, our cases reject this conception, see, e.g ., United States v. Leon , 468 U. S. 897 , 921, n. 22 (1984), and
perhaps for this reason, her dissent relies almost exclusively on
previous dissents to support its analysis. Footnote 3 We thus reject Justice Breyer’s suggestion
that Evans was entirely “premised on a distinction between
judicial errors and police errors,” post , at 1 (dissenting
opinion). Were that the only rationale for our decision, there
would have been no reason for us expressly and carefully to leave
police error unresolved. In addition, to the extent Evans is viewed as presaging a particular result here, it is noteworthy
that the dissent’s view in that case was that the distinction
Justice Breyer regards as determinative was instead “artificial.”
514 U. S., at 29 (Ginsburg, J., dissenting). Footnote 4 We do not quarrel with Justice Ginsburg’s
claim that “liability for negligence . . . creates an incentive to
act with greater care,” post, at 7, and we do not suggest
that the exclusion of this evidence could have no deterrent effect. But our cases require any deterrence to “be
weighed against the ‘substantial social costs exacted by the
exclusionary rule,’ ” Illinois v. Krull , 480 U. S. 340 , 352–353 (1987) (quoting Leon , 468 U. S., at 907), and here exclusion is not worth
the cost. Footnote 5 Justice Ginsburg notes that at an earlier
suppression hearing Morgan testified—apparently in confusion—that
there had been miscommunications “[s]everal times.” Post ,
at 3, n. 2 (quoting App. to Pet. for Cert. 17a). When she
later realized that she had misspoken, Morgan emphatically
corrected the record. App. 61–62. Noting this, the District Court
found that “Morgan’s ‘several times’ statement is confusing and
essentially unhelpful,” and concluded that there was “no credible
evidence of routine problems with disposing of recalled warrants.”
451 F. Supp. 2d, at 1292. This factual determination,
supported by the record and credited by the Court of Appeals, see
492 F. 3d, at 1219, is of course entitled to deference. GINSBURG, J., DISSENTING HERRING V. UNITED STATES 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-513 BENNIE DEAN HERRING, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states court of
appeals for the eleventh circuit

															[January 14, 2009]

															   Justice Ginsburg, with whom
Justice Stevens, Justice Souter, and Justice Breyer join,
dissenting.

															   Petitioner Bennie Dean Herring
was arrested, and subjected to a search incident to his arrest,
although no warrant was outstanding against him, and the police
lacked probable cause to believe he was engaged in criminal
activity. The arrest and ensuing search therefore violated
Herring’s Fourth Amendment right “to be secure … against
unreasonable searches and seizures.” The Court of Appeals so
determined, and the Government does not contend otherwise. The
exclusionary rule provides redress for Fourth Amendment violations
by placing the government in the position it would have been in had
there been no unconstitutional arrest and search. The rule thus
strongly encourages police compliance with the Fourth Amendment in
the future. The Court, however, holds the rule inapplicable because
careless recordkeeping by the police—not flagrant or deliberate
misconduct—accounts for Herring’s arrest.

															   I would not so constrict the domain of the
exclusionary rule and would hold the rule dispositive of this case:
“[I]f courts are to have any power to discourage [police] error of
[the kind here at issue], it must be through the application of the
exclusionary rule.” Arizona v. Evans , 514 U. S. 1 , 22–23 (1995)
(Stevens, J., dissenting). The unlawful search in this case was
contested in court because the police found methamphetamine in
Herring’s pocket and a pistol in his truck. But the “most serious
impact” of the Court’s holding will be on innocent persons
“wrongfully arrested based on erroneous information [carelessly
maintained] in a computer data base.” Id. , at
22. I A warrant for
Herring’s arrest was recalled in February 2004, apparently because
it had been issued in error. See Brief for Petitioner 3, n. 1
(citing App. 63). The warrant database for the Dale County
Sheriff’s Department, however, does not automatically update to
reflect such changes. App. 39–40, 43, 45. A member of
the Dale County Sheriff’s Department—whom the parties have not
identified—returned the hard copy of the warrant to the County
Circuit Clerk’s office, but did not correct the Department’s
database to show that the warrant had been recalled. Id. ,
at 60. The erroneous entry for the warrant remained in the
database, undetected, for five months. On a July
afternoon in 2004, Herring came to the Coffee County Sheriff’s
Department to retrieve his belongings from a vehicle impounded in
the Department’s lot. Id. , at 17. Investigator Mark
Anderson, who was at the Department that day, knew Herring from
prior interactions: Herring had told the district attorney, among
others, of his suspicion that Anderson had been involved in the
killing of a local teenager, and Anderson had pursued Herring to
get him to drop the accusations. Id. , at 63–64. Informed
that Herring was in the impoundment lot, Anderson asked the Coffee
County warrant clerk whether there was an outstanding warrant for
Herring’s arrest. Id. , at 18. The clerk, Sandy Pope, found
no warrant. Id. , at 19. Anderson then asked
Pope to call the neighboring Dale County Sheriff’s Department to
inquire whether a warrant to arrest Herring was outstanding there.
Upon receiving Pope’s phone call, Sharon Morgan, the warrant clerk
for the Dale County Department, checked her computer database. As
just recounted, that Department’s database preserved an error.
Morgan’s check therefore showed—incorrectly—an active warrant for
Herring’s arrest. Id. , at 41. Morgan gave the
misinformation to Pope, ibid ., who relayed it to
Investigator Anderson, id. , at 35. Armed with the report
that a warrant existed, Anderson promptly arrested Herring and
performed an incident search minutes before detection of the
error. The Court of Appeals
concluded, and the Government does not contest, that the “failure
to bring the [Dale County Sheriff’s Department] records up to date
[was] ‘at the very least negligent.’ ” 492 F. 3d 1212,
1217 (CA11 2007) (quoting Michigan v. Tucker , 417 U. S. 433 ,
447 (1974)). And it is uncontested here that Herring’s arrest
violated his Fourth Amendment rights. The sole question presented,
therefore, is whether evidence the police obtained through the
unlawful search should have been suppressed.[ Footnote 1 ] The Court holds that suppression was
unwarranted because the exclusionary rule’s “core concerns” are not
raised by an isolated, negligent recordkeeping error attenuated
from the arrest. Ante , at 9, 12.[ Footnote 2 ] In my view, the Court’s opinion
underestimates the need for a forceful exclusionary rule and the
gravity of recordkeeping errors in law
enforcement. II A The Court states that the exclusionary rule
is not a defendant’s right, ante , at 5; rather, it is
simply a remedy applicable only when suppression would result in
appreciable deterrence that outweighs the cost to the justice
system, ante , at 12. See also ante , at 9 (“[T]he
exclusionary rule serves to deter deliberate, reckless, or grossly
negligent conduct, or in some circumstances recurring or systemic
negligence.”). The Court’s discussion invokes a view of the
exclusionary rule famously held by renowned jurists Henry J.
Friendly and Benjamin Nathan Cardozo. Over 80 years ago, Cardozo,
then seated on the New York Court of Appeals, commented critically
on the federal exclusionary rule, which had not yet been applied to
the States. He suggested that in at least some cases the rule
exacted too high a price from the criminal justice system. See People v. Defore , 242 N. Y. 13, 24–25, 150
N. E. 585, 588–589 (1926). In words often quoted, Cardozo
questioned whether the criminal should “go free because the
constable has blundered.” Id. , at 21, 150 N. E., at
587. Judge
Friendly later elaborated on Cardozo’s query. “The sole reason for
exclusion,” Friendly wrote, “is that experience has demonstrated
this to be the only effective method for deterring the police from
violating the Constitution.” The Bill of Rights as a Code of
Criminal Procedure, 53 Calif. L. Rev. 929, 951 (1965). He
thought it excessive, in light of the rule’s aim to deter police
conduct, to require exclusion when the constable had merely
“blundered”—when a police officer committed a technical error in an
on-the-spot judgment, id., at 952, or made a “slight and
unintentional miscalculation,” id. , at 953. As the Court
recounts, Judge Friendly suggested that deterrence of police
improprieties could be “sufficiently accomplished” by confining the
rule to “evidence obtained by flagrant or deliberate violation of
rights.” Ibid.; ante , at
8. B Others have described “a more majestic
conception” of the Fourth Amendment and its adjunct, the
exclusionary rule. Evans , 514 U. S., at 18 (Stevens, J.,
dissenting). Protective of the fundamental “right of the people to
be secure in their persons, houses, papers, and effects,” the
Amendment “is a constraint on the power of the sovereign, not
merely on some of its agents.” Ibid. (internal quotation
marks omitted); see Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of
the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum.
L. Rev. 1365 (1983). I share that vision of the
Amendment. The exclusionary rule is “a remedy necessary
to ensure that” the Fourth Amendment’s prohibitions “are observed
in fact.” Id. , at 1389; see Kamisar, Does (Did) (Should)
The Exclusionary Rule Rest On A “Principled Basis” Rather Than An
“Empirical Proposition”? 16 Creighton L. Rev. 565, 600 (1983).
The rule’s service as an essential auxiliary to the Amendment
earlier inclined the Court to hold the two inseparable. See Whiteley v. Warden, Wyo. State Penitentiary , 401 U. S. 560 ,
568–569 (1971). Cf. Olmstead v. United States , 277 U. S. 438 ,
469–471 (1928) (Holmes, J., dissenting); id. , at 477–479,
483–485 (Brandeis, J., dissenting). Beyond doubt, a main objective of the rule
“is to deter—to compel respect for the constitutional guaranty in
the only effectively available way—by removing the incentive to
disregard it.” Elkins v. United States , 364 U. S. 206 , 217
(1960). But the rule also serves other important purposes: It
“enabl[es] the judiciary to avoid the taint of partnership in
official lawlessness,” and it “assur[es] the people—all potential
victims of unlawful government conduct—that the government would
not profit from its lawless behavior, thus minimizing the risk of
seriously undermining popular trust in government.” United
States v. Calandra , 414 U. S. 338 , 357
(1974) (Brennan, J., dissenting). See also Terry v. Ohio , 392 U.
S. 1 , 13 (1968) (“A rule admitting evidence in a criminal
trial, we recognize, has the necessary effect of legitimizing the
conduct which produced the evidence, while an application of the
exclusionary rule withholds the constitutional imprimatur.”);
Kamisar, supra , at 604 (a principal reason for the
exclusionary rule is that “the Court’s aid should be denied ‘in
order to maintain respect for law [and] to preserve the judicial
process from contamination’ ” (quoting Olmstead , 277
U. S., at 484 (Brandeis, J.,
dissenting)). The exclusionary rule, it bears emphasis, is
often the only remedy effective to redress a Fourth Amendment
violation. See Mapp v. Ohio , 367 U. S. 643 , 652
(1961) (noting “the obvious futility of relegating the Fourth
Amendment to the protection of other remedies”); Amsterdam,
Perspectives on the Fourth Amendment, 58 Minn. L. Rev. 349,
360 (1974) (describing the exclusionary rule as “the primary
instrument for enforcing the [F]ourth [A]mendment”). Civil
liability will not lie for “the vast majority of
[F]ourth [A]mendment violations—the frequent infringements
motivated by commendable zeal, not condemnable malice.” Stewart, 83
Colum. L. Rev., at 1389. Criminal prosecutions or
administrative sanctions against the offending officers and
injunctive relief against widespread violations are an even farther
cry. See id. , at
1386–1388. III The Court
maintains that Herring’s case is one in which the exclusionary rule
could have scant deterrent effect and therefore would not “pay its
way.” Ante , at 13 (internal quotation marks omitted). I
disagree. A The
exclusionary rule, the Court suggests, is capable of only marginal
deterrence when the misconduct at issue is merely careless, not
intentional or reckless. See ante , at 9, 11. The
suggestion runs counter to a foundational premise of tort law—that
liability for negligence, i.e. , lack of due care, creates
an incentive to act with greater care. The Government so
acknowledges. See Brief for United States 21; cf. Reply Brief
12. That the
mistake here involved the failure to make a computer entry hardly
means that application of the exclusionary rule would have minimal
value. “Just as the risk of respondeat superior liability
encourages employers to supervise … their employees’ conduct [more
carefully], so the risk of exclusion of evidence encourages
policymakers and systems managers to monitor the performance of the
systems they install and the personnel employed to operate those
systems.” Evans , 514 U. S., at 29, n. 5 (Ginsburg,
J.,
dissenting). Consider the
potential impact of a decision applying the exclusionary rule in
this case. As earlier observed, see supra , at 2, the
record indicates that there is no electronic connection between the
warrant database of the Dale County Sheriff’s Department and that
of the County Circuit Clerk’s office, which is located in the
basement of the same building. App. 39–40, 43, 45. When a warrant
is recalled, one of the “many different people that have access to
th[e] warrants,” id. , at 60, must find the hard copy of
the warrant in the “two or three different places” where the
department houses warrants, id. , at 41, return it to the
Clerk’s office, and manually update the Department’s database, see id. , at 60. The record reflects no routine practice of
checking the database for accuracy, and the failure to remove the
entry for Herring’s warrant was not discovered until Investigator
Anderson sought to pursue Herring five months later. Is it not
altogether obvious that the Department could take further
precautions to ensure the integrity of its database? The Sheriff’s
Department “is in a position to remedy the situation and might well
do so if the exclusionary rule is there to remove the incentive to
do otherwise.” 1 W. LaFave, Search and Seizure §1.8(e), p. 313 (4th
ed. 2004). See also Evans , 514 U. S., at 21 (Stevens, J.,
dissenting). B Is the
potential deterrence here worth the costs it imposes? See ante , at 9. In light of the paramount importance of
accurate recordkeeping in law enforcement, I would answer yes, and
next explain why, as I see it, Herring’s motion presents a
particularly strong case for
suppression. Electronic databases form the nervous system
of contemporary criminal justice operations. In recent years, their
breadth and influence have dramatically expanded. Police today can
access databases that include not only the updated National Crime
Information Center (NCIC), but also terrorist watchlists, the
Federal Government’s employee eligibility system, and various
commercial databases. Brief for Electronic Privacy Information
Center (EPIC) et al. as Amicus Curiae 6. Moreover,
States are actively expanding information sharing between
jurisdictions. Id. , at 8–13. As a result, law enforcement
has an increasing supply of information within its easy electronic
reach. See Brief for Petitioner
36–37. The risk of error
stemming from these databases is not slim. Herring’s amici warn that law enforcement databases are insufficiently monitored
and often out of date. Brief for Amicus EPIC 13–28. Government reports describe, for example, flaws in NCIC
databases,[ Footnote 3 ]
terrorist watchlist databases,[ Footnote 4 ] and databases associated with the Federal
Government’s employment eligibility verification system.[ Footnote
5 ] Inaccuracies in expansive, interconnected
collections of electronic information raise grave concerns for
individual liberty. “The offense to the dignity of the citizen who
is arrested, handcuffed, and searched on a public street simply
because some bureaucrat has failed to maintain an accurate computer
data base” is evocative of the use of general warrants that so
outraged the authors of our Bill of Rights. Evans , 514 U.
S., at 23 (Stevens, J.,
dissenting). C The Court assures that “exclusion would
certainly be justified” if “the police have been shown to be
reckless in maintaining a warrant system, or to have knowingly made
false entries to lay the groundwork for future false arrests.” Ante , at 11. This concession provides little
comfort. First, by restricting suppression to
bookkeeping errors that are deliberate or reckless, the majority
leaves Herring, and others like him, with no remedy for violations
of their constitutional rights. See supra , at 6. There can
be no serious assertion that relief is available under 42 U.
S. C. §1983. The arresting officer would be sheltered by
qualified immunity, see Harlow v. Fitzgerald , 457 U. S. 800 (1982), and the police department itself is not liable for the
negligent acts of its employees, see Monell v. New
York City Dept. of Social Servs. , 436 U. S. 658 (1978).
Moreover, identifying the department employee who committed the
error may be
impossible. Second, I
doubt that police forces already possess sufficient incentives to
maintain up-to-date records. The Government argues that police have
no desire to send officers out on arrests unnecessarily, because
arrests consume resources and place officers in danger. The facts
of this case do not fit that description of police motivation. Here
the officer wanted to arrest Herring and consulted the Department’s
records to legitimate his predisposition. See App. 17–19.[ Footnote
6 ] Third,
even when deliberate or reckless conduct is afoot, the Court’s
assurance will often be an empty promise: How is an impecunious
defendant to make the required showing? If the answer is that a
defendant is entitled to discovery (and if necessary, an audit of
police databases), see Tr. of Oral Arg. 57–58, then the Court has
imposed a considerable administrative burden on courts and law
enforcement.[ Footnote
7 ] IV Negligent recordkeeping errors by law
enforcement threaten individual liberty, are susceptible to
deterrence by the exclusionary rule, and cannot be remedied
effectively through other means. Such errors present no occasion to
further erode the exclusionary rule. The rule “is needed to make
the Fourth Amendment something real; a guarantee that does not
carry with it the exclusion of evidence obtained by its violation
is a chimera.” Calandra , 414 U. S., at 361 (Brennan, J.,
dissenting). In keeping with the rule’s “core concerns,” ante , at 9, suppression should have attended the
unconstitutional search in this
case. *  *  * For the reasons stated, I would reverse the
judgment of the Eleventh
Circuit. Footnote
1 That the
recordkeeping error occurred in Dale County rather than Coffee
County is inconsequential in the suppression analysis. As the Court
notes, “we must consider the actions of all the police officers
involved.” Ante , at 4. See also United States v. Leon , 468
U. S. 897 , 923, n. 24
(1984). Footnote
2 It is not
altogether clear how “isolated” the error was in this case. When
the Dale County Sheriff’s Department warrant clerk was first asked:
“[H]ow many times have you had or has Dale County had problems, any
problems with communicating about warrants,” she responded:
“Several times.” App. to Pet. for Cert. 17a (internal quotation
marks
omitted). Footnote
3 See Dept.
of Justice, Bureau of Justice Statistics, P. Brien, Improving
Access to and Integrity of Criminal History Records, NCJ 200581
(July 2005), available at
http://www.ojp.usdoj.gov/bjs/pub/pdf/iaichr.pdf (All Internet
materials as visited Jan. 12, 2009, and included in Clerk of
Court’s case
file.). Footnote
4 See Dept.
of Justice, Office of Inspector General, Audit of the U. S.
Department of Justice Terrorist Watchlist Nomination Processes,
Audit Rep. 08–16 (Mar. 2008),
http://www.usdoj.gov/oig/reports/plus/a0816/
final.pdf. Footnote
5 See
Social Security Admin., Office of Inspector General, Congressional
Response Report: Accuracy of the Social Security Administration’s
Numident File, A–08–06–26100 (Dec. 2006), http://www.ssa.gov/
oig/ADOBEPDF/A–08–06–26100.pdf. Footnote
6 It has
been asserted that police departments have become sufficiently
“professional” that they do not need external deterrence to avoid
Fourth Amendment violations. See Tr. of Oral Arg. 24–25; cf. Hudson v. Michigan , 547 U. S. 586 , 598–599
(2006). But professionalism is a sign of the exclusionary rule’s
efficacy—not of its
superfluity. Footnote
7 It is not
clear how the Court squares its focus on deliberate conduct with
its recognition that application of the exclusionary rule does not
require inquiry into the mental state of the police. See ante , at 10; Whren v. United States , 517 U. S. 806 ,
812–813
(1996). 555 U. S. ____ (2009) HERRING V. UNITED STATES 555 U. S. ____ (2009) SUPREME COURT OF THE UNITED STATES NO. 07-513 BENNIE DEAN HERRING, PETITIONER v. UNITED
STATES

															on writ of certiorari to the united states court of
appeals for the eleventh circuit

															[January 14, 2009]

															   Justice Breyer, with whom Justice
Souter joins, dissenting.

															   I agree with Justice Ginsburg and
join her dissent. I write separately to note one additional
supporting factor that I believe important. In Arizona v. Evans , 514 U.
S. 1 (1995), we held that recordkeeping errors made by a court
clerk do not trigger the exclusionary rule, so long as the police
reasonably relied upon the court clerk’s recordkeeping. Id. , at 14; id. , at 16–17 (O’Connor, J.,
concurring). The rationale for our decision was premised on a
distinction between judicial errors and police errors, and we gave
several reasons for recognizing that distinction. First , we noted that “the
exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees.” Id. , at 14 (emphasis added). Second , we found “no
evidence that court employees are inclined to ignore or subvert the
Fourth Amendment or that lawlessness among these actors requires
application of the extreme sanction of exclusion.” Id. , at
14–15. Third , we recognized that there was “no basis for
believing that application of the exclusionary rule… [would] have a
significant effect on court employees responsible for informing the
police that a warrant has been quashed. Because court clerks are
not adjuncts to the law enforcement team engaged in the often
competitive enterprise of ferreting out crime, they have no stake
in the outcome of particular criminal prosecutions.” Id. ,
at 15 (citation omitted). Taken together, these reasons explain why
police recordkeeping errors should be treated differently than
judicial ones.

															   Other cases applying the “good faith”
exception to the exclusionary rule have similarly recognized the
distinction between police errors and errors made by others, such
as judicial officers or legislatures. See United States v. Leon , 468
U. S. 897 (1984) (police reasonably relied on magistrate’s
issuance of warrant); Massachusetts v. Sheppard , 468 U. S. 981 (1984) (same); Illinois v. Krull , 480 U. S. 340 (1987)
(police reasonably relied on statute’s constitutionality).

															   Distinguishing between police recordkeeping
errors and judicial ones not only is consistent with our precedent,
but also is far easier for courts to administer than The Chief
Justice’s case-by-case, multifactored inquiry into the degree of
police culpability. I therefore would apply the exclusionary rule
when police personnel are responsible for a recordkeeping error
that results in a Fourth Amendment violation.

															   The need for a clear line, and the recognition
of such a line in our precedent, are further reasons in support of
the outcome that Justice Ginsburg’s dissent would reach.