USA - Illegally Seized Evidence Can Be Used, Top Court Says

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Illegally Seized Evidence Can Be Used, Top Court Says

By Greg Stohr

Jan. 14 (Bloomberg) -- A divided U.S. Supreme Court gave prosecutors more ability to use evidence obtained in violation of the Constitution, ruling against a man who was arrested and searched only because of a police clerical error.

The justices, voting 5-4 along ideological lines, upheld Bennie Dean Herring’s conviction for illegal possession of the methamphetamine and pistol he was carrying when he was arrested in 2004 in Coffee County, Alabama.

“In such a case, the criminal should not go free because the constable has blundered,” Chief Justice John Roberts wrote for the court, using a line from a 1926 Supreme Court decision.

Herring was arrested when he came to the Coffee County sheriff’s department to retrieve something from an impounded truck. At the time, a neighboring county’s computer system showed an active arrest warrant for Herring’s failure to appear in court on a felony charge. That warrant in reality had been recalled, so Coffee County police lacked any legal basis to arrest Herring.

The Supreme Court in some past cases has applied the so- called exclusionary rule to illegally obtained evidence, barring its use at trial. The court has restricted use of the exclusionary rule under Roberts and his predecessor as chief justice, William Rehnquist.

Not Deliberate

“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,” Roberts wrote. “The error in this case does not rise to that level.”

Justices Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy joined Roberts’s opinion.

Justices Ruth Bader Ginsburg, David Souter, John Paul Stevens and Stephen Breyer dissented.

“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,” Ginsburg wrote.

The case is Herring v. United States, 07-513.

In a second criminal case resolved today, the justices ruled that judges, rather than juries, can make the factual determinations necessary for sentences to run consecutively instead of simultaneously. An Oregon man argued unsuccessfully that a jury should have decided whether he was eligible for consecutive sentences on burglary and sexual assault convictions.

The 5-4 ruling marked a step back from a line of sentencing cases that had given new significance to the constitutional jury- trial right. Those earlier decisions had said that jurors, not judges, must make any factual determinations that increase a potential sentence.

Ginsburg, Stevens, Kennedy, Breyer and Alito formed the majority, with Roberts, Scalia, Souter and Thomas in dissent.

The case is Oregon v. Ice. 07-901.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net.

Last Updated: January 14, 2009 13:58 EST

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