Monday, May 19, 2008

Who are the Police?

Via Volokh, an interesting case. It's (snicker) Herring v. United States, and it deals with the interesting 4th amendment question of "who are the police." Orin Kerr gives a pretty good summary, so click on the link for details. In brief, though, what happened is that a cop got suspicious of a guy named Herring and called in to see if there was a warrant out on him. There wasn't in his county, but a call to a neighboring county turned one up. One problem: the warrant had been recalled by the time this information was relayed. It's sorta like paying a bill online but having to wait for it to be visible from your account overview page - the database interface said there was a warrant, but a check for the actual warrant reveals that it had been recalled earlier (Kerr doesn't say how long the lapse was here, though - probably longer than a day). So when the clerk went to fetch the actual warrant, it wasn't there. Too late: the officer had already arrested Herring and found in his possession illegal guns and drugs. THE QUESTION: since these materials were found under a search authorized by a recalled warrant, but executed in good faith by the arresting officer on the assumption that the arrest was ... erm ... warranted (sorry), do or do not the drugs and gun qualify as admissible evidence under the Fourth Amendment?

Kerr doesn't have a hard opinion, but he takes the intersting stance that it comes down to a question of who "the police" are. If "the police" are just the arresting officer, then "clearly" due process was followed - that is, the officer had good reason to arrest this person - and so any contraband that turns up on the search is admissible. If, however, "the police" refers to the entire organization, then a recalled warrant doesn't give them probable cause to perform the search, the search was therefore improper (having been performed during an unauthorized arrest), and the seized materials cannot be used as evidence.

I said Kerr doesn't have a hard opinion, but he does express an inclination to the former interpretation - which is, incidentally, why I put "clearly" in shock quotes above. Kerr reasons that the potential for abuse here is probably overstated. Yes, granted, this opens the door to a potential kind of bad faith action on the part of the police, but Kerr (probably righty) points out that this avenue is largely already avaiable in slightly altered form. After all, it doesn't have to hinge on a warrant; a corrupt officer can just as easily make up facts that establish probably cause another way, leading another officer to perform an improper search.

No doubt Kerr is right about that, but I still respectfully disagree with his overall conclusion based on other facts of the case. While certainly it's true that in general "due process" cases are resolved from the perspective of the arresting officer, I see no overriding reason why that standard has to be applied in all cases. If all the relevant information is right there on the scene, then fine. But if some of the relevant information comes from off-scene, then it seems to me that the entire organization is involved at that point. In this case, the crucial bit of information that enabled the improper arrest came from off-scene, so that's a pretty clear case when "the police" are the organization, and not just the arresting officer.

To the extent that we need a single resolution to the question of whether "the police" is the officer on the scene or the entire organization, the solution seems pretty simple. We say that "the police" is the entire organization and for purposes of applying the due process test, we only include those parts of the organization that were responsible for construing the facts in the way that they did in the individual case in question. In other words, to all practical purposes, it's the arresting officer, and in some rare cases it will involve the entire police information network when this is needed to resolve questions of this kind. If we don't do it this way, then we give "the police" the ability to compartmentalize itself for the purpose of securing a search, and that doesn't seem like a good precedent to set. It's like saying "in case of a tie, the police win," which is clearly not the intention of the Fourth Amendment. The police are responsible for obtaining accurate information on criminal activities. Indeed, I should think that, contra Kerr, it's not just a matter of encouraging the police to keep up-to-date databases, but also of encouraging them to instate methods of communcation internal to their departments that are accurate and effective. This isn't just about warrants.

My prediction is that the Court will see it similarly.

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