Responding to Tom Goldstein on Herring:
Over at SCOTUSblog, Tom Goldstein has a very different take than I do on today's Fourth Amendment decision in Herring v. United States. Tom writes that his "preliminary reaction is that we will at some point soon regard today's Herring decision as one of the most important rulings in that field in the last quarter century." I thought it might be worth explaining why I disagree and why I think Herring is a minor case.

  Tom argues that there is a part of Herring that could be read as a dramatic change in Fourth Amendment law by creating a general good faith exception to ordinary police conduct. (There is a good faith exception when the police get a warrant, but no such exception otherwise under current law.) Here's his argument:
  Today, the Supreme Court holds that negligent errors by the police generally do not trigger the exclusionary rule. "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." Slip Op. at 9. "[W]e 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," the exclusionary rule does not apply. Id. at 12.
  The opinion has nothing to do with the fact that the error here is one of recordkeeping. It applies fully to negligence by police officers in their day-to-day determination whether there is probable cause to conduct a search. If the officer makes an objectively reasonable mistake - i.e., he is merely negligent - the exclusionary rule does not apply to whatever evidence he finds. Put another way, the Supreme Court today extended the good faith exception to ordinary police conduct.
  . . . The one limitation on the Court's opinion — and it will be the key to determining whether it reworks Fourth Amendment jurisprudence very significantly — is the Court's statement that its rule applies to police conduct "attenuated from the arrest." Those statements constrain today's holding largely to the bounds of existing law. But the logic of the decision spans far more broadly, and the next logical step — which I predict is 2 years away — is abandoning the "attentuation" reference altogether. . . .
  Interestingly, as I said, the dissenters do not seem to be alarmed at all by what I understand to be a very significant move in Fourth Amendment jurisprudence. They address the case as if it merely involves police recordkeeping, when the Court's ruling is in fact far broader. According to today's decision, the overwhelming majority of cases involving the ordinary application of the exclusionary rule - many thousands of cases - have potentially omitted an essential component of the constitutional inquiry (the officer's objective negligence) and a great many of those cases have been wrongly decided because the officer acted wrongly but was not reckless.
  I read Herring quite differently. I think it's a narrow and interstitial decision, not one that is rocking the boat. In particular, I don't see it as suggesting a general good faith exception for police conduct. Such a position would be an extraordinary shift in Fourth Amendment law that would effectively overrule a ton of cases. That issue wasn't raised by the briefs or argument, however, so I don't see it as natural to read such a conclusion into the holding that pretty much just answered the question presented in the briefs. I think that's why the dissenters didn't sound the alarm: The decision was quite narrow.

  To the extent Tom is predicting that a future Supreme Court decision might someday change the law and cite Herring for support, even if Herring does not on its face indicate that reading, that's certainly possible. But if so, I think that will be a decision of the future Supreme Court, not today's decision in Herring.