Herring v. United States, and "Who Are The Police"?
The petitioner's merits brief was recently filed in Herring v. United States, a really interesting Fourth Amendment case out of the Eleventh Circuit that will be argued before the Supreme Court in the fall. I wanted to offer some preliminary thoughts on the case.

  First, the facts. Coffee County police investigator Anderson observed a man named Herring, and developed reason to think that there was a warrant out for Herring's arrest. Anderson quickly called the Coffee County warrant clerk to see if there were any arrest warrants sworn out for Herring. The warrant clerk checked the county database but found no warrants. Anderson then asked the warrant clerk to contact the warrant clerk in nearby Dale County to see if there were any warrants in that county for Herring's arrest. The Dale County warrant clerk reported back to the Coffee County clerk's office that there was in fact an active warrant in Dale County for Herring's arrest. The Dale County warrant clerk then relayed that information to Anderson.

  The Dale County warrant clerk then looked through the county files for the actual warrant. When she couldn't find it, she called the clerk's office and learned that there had been a snafu: The warrant had existed but had been recalled, even though it had not yet been noted in the Dale County database. The Dale County warrant clerk called the Coffee County warrant clerk immediately to tell her that there had been a mistake; there actually was no warrant. Although only 10-15 minutes had passed since their earlier call, the call came too late. Anderson had already pulled over Herring and arrested him based on the belief that a warrant existed. A search incident to arrest revealed drugs and a gun, leading to criminal charges. In this case, Herring wants the drugs and gun suppressed as violations of the Fourth Amendment.

  Ok, on to the legal issues. At the heart of Herring is the question, "who are the police?" When the Supreme Court refers to terms like "probable cause" and the need for the exclusionary rule to "deter the police," is the relevant actor the single individual who actually conducts the search or seizure or the entity of police as a whole? And if you look at the entity as a whole, does that mean all the police in the county, the state, or maybe all of the police who were involved in the case? In one case, the police is a person; in the other, it's an entity.

  Why is this the heart of Herring? Under the Fourth Amendment, an arrest is justified if the police have probable cause to believe that a crime was committed and that the suspect committed it; also, reasonable reliance by the police on authority to conduct a search or seizure that later turns out to be false generally leads to admission of evidence. Under these standards, if you construe "the police" to mean the actual person who conducted the search or seizure then Herring should easily lose. On the other hand, if you view "the police" as all of the involved agents of the state, then Herring probably should win.