Growing up in the 1960s, Deputy Barney Fife was a weekly visitor to my home, courtesy of The Andy Griffith Show. Overly ambitious and nervous, but also highly inept, Barney—masterfully played by actor Don Knotts—eventually became a symbol of police over-reaction and incompetence.
In the fictional town of Maybury, North Carolina, Sheriff Andy Taylor (Griffith's character) kept Barney under control. But now, in a razor-thin 5-4 plurality opinion, the U.S. Supreme Court has created what might be called the "Barney Fife" excuse for sloppy police work.
The court ruled last week that evidence seized in an arrest based on an expired warrant in a police database can be used against the person arrested, so long as the error resulted from "isolated negligence." This decision is one more nail in the coffin for the so-called "exclusionary rule," which in 1961 a very different Supreme Court held to be binding in state as well as federal courts. In essence, the exclusionary rule denies prosecutors the right to introduce evidence obtained through unauthorized search and seizure.
The latest blow to the exclusionary rule began on a hot afternoon in July 2004, in Coffee County, Alabama. Bennie Dean Herring showed up at a police storage lot to retrieve some items from his impounded truck. Officers checked to see if Herring was wanted by police and found an arrest warrant in a nearby jurisdiction. Shortly after he drove away from the lot, police arrested him.
Under the "search incident to arrest doctrine," police may search anyone they are arresting. They may also open any "containers" the person being arrested has in their pockets or otherwise is carrying. In Herring's case, police found illegal drugs in his pocket and a pistol (which as a convicted felon he couldn't legally own) in his truck.
A few minutes later, police learned that the warrant they had relied upon to arrest Herring had been withdrawn months ago. Herring's attorneys tried to exclude evidence gathered in the search in a subsequent trial in which he was convicted of federal gun and drug possession charges. Now, the Supreme Court has rebuffed their efforts.
There appears to be little doubt that Herring is guilty of the offenses for which he was charged based on the faulty warrant: illegal possession of drugs and a weapon. But that's not the point. The Supreme Court has now told police departments nationwide they don't need to worry about sloppy bookkeeping.
The exclusionary rule is often the only way that a criminal defendant can effectively contest a violation of his or her Fourth Amendment rights to not be subject to unreasonable searches and seizures. And, it's now been seriously undermined. In my next post, I'll describe why this "Barney Fife exception" to the Fourth Amendment is no laughing matter.
Copyright © 2009 by Mark Nestmann
(An earlier version of this post was published by The Sovereign Society.)
