On July 7, 2004, Investigator Mark Anderson learned
that Bennie Dean Herring had driven to the Coffee County
Sheriff’s Department to retrieve something from his im-
pounded truck. Herring was no stranger to law enforce-
ment, and Anderson asked the county’s warrant clerk,
Sandy Pope, to check for any outstanding warrants for
Herring’s arrest. When she found none, Anderson asked
Pope to check with Sharon Morgan, her counterpart in
neighboring Dale County. After checking Dale County’s
computer database, Morgan replied that there was an
active arrest warrant for Herring’s failure to appear on a
felony charge. Pope relayed the information to Anderson
and asked Morgan to fax over a copy of the warrant as
confirmation. Anderson and a deputy followed Herring as
he left the impound lot, pulled him over, and arrested him.
A search incident to the arrest revealed methampheta-
mine in Herring’s pocket, and a pistol (which as a felon he
could not possess) in his vehicle. App. 17–23.
There had, however, been a mistake about the warrant.
The Dale County sheriff’s computer records are supposed
to correspond to actual arrest warrants, which the office
also maintains. But when Morgan went to the files to
retrieve the actual warrant to fax to Pope, Morgan was
unable to find it. She called a court clerk and learned that
the warrant had been recalled five months earlier. Nor-
mally when a warrant is recalled the court clerk’s office or
a judge’s chambers calls Morgan, who enters the informa-
tion in the sheriff’s computer database and disposes of the
physical copy. For whatever reason, the information about
the recall of the warrant for Herring did not appear in the
database. Morgan immediately called Pope to alert her to
the mixup, and Pope contacted Anderson over a secure
radio. This all unfolded in 10 to 15 minutes, but Herring
had already been arrested and found with the gun and
drugs, just a few hundred yards from the sheriff’s office.
This is the summary of events from the majority opinion. Let me also post a section from the dissenting opinion:
A warrant for Herring’s arrest was recalled in February
2004, apparently because it had been issued in error. See
Brief for Petitioner 3, n. 1 (citing App. 63). The warrant
database for the Dale County Sheriff’s Department, how-
ever, does not automatically update to reflect such
changes. App. 39–40, 43, 45. A member of the Dale
County Sheriff’s Department—whom the parties have not
identified—returned the hard copy of the warrant to the
County Circuit Clerk’s office, but did not correct the De-
partment’s database to show that the warrant had been
recalled. Id., at 60. The erroneous entry for the warrant
remained in the database, undetected, for five months.
On a July afternoon in 2004, Herring came to the Coffee
County Sheriff’s Department to retrieve his belongings
from a vehicle impounded in the Department’s lot. Id., at
17. Investigator Mark Anderson, who was at the Depart-
ment that day, knew Herring from prior interactions:
Herring had told the district attorney, among others, of
his suspicion that Anderson had been involved in the
killing of a local teenager, and Anderson had pursued
Herring to get him to drop the accusations. Id., at 63–64.
Informed that Herring was in the impoundment lot,
Anderson asked the Coffee County warrant clerk whether
there was an outstanding warrant for Herring’s arrest.
Id., at 18. The clerk, Sandy Pope, found no warrant. Id.,
at 19.
Anderson then asked Pope to call the neighboring Dale
County Sheriff’s Department to inquire whether a warrant
3
Cite as: 555 U. S. ____ (2009)
GINSBURG, J., dissenting
to arrest Herring was outstanding there. Upon receiving
Pope’s phone call, Sharon Morgan, the warrant clerk for
the Dale County Department, checked her computer data-
base. As just recounted, that Department’s database
preserved an error. Morgan’s check therefore showed—
incorrectly—an active warrant for Herring’s arrest. Id., at
41. Morgan gave the misinformation to Pope, ibid., who
relayed it to Investigator Anderson, id., at 35. Armed with
the report that a warrant existed, Anderson promptly
arrested Herring and performed an incident search min-
utes before detection of the error.
The 4th Amendment to the US Constitution is clear "Shall not" Not "sometimes" not "mostly", not "unless there is a clerical error." It says "shall not. As in "cannot happen". In street terms that would be: "Sucks to be you Mr. Fed." Perhaps Roberts, et. al live in some alternate universe where "shall not" implies an exception, but perhaps they ought to be permanently removed to that location.
When we look at the summary of events by combining the writings of both the majority and minority opinion we see a trail of bureaucratic errors and what I consider "predatory" policing of Mr. Herring.
1) We have a warrant issued by the court in error for Herring. Why? How? Was Mr. Herring notified that a warrant was put out for him? Was he notified that it was in error and given some sort of document to show law enforcement agents in the case that he was mistakenly stopped? If not why not?
2) Some unidentified person did not update the computer systems as to the withdrawal of the Herring warrant. In fact for 5 months the error remained. Clearly there is no periodic auditing of the warrant database even though such errors have dire consequences for citizens.
In the Herring case, we find that investigator Mark Anderson had probable reason to "fuck" (excuse the non-legal term) with Herring as Herring had made an accusation against Anderson regarding a murder. So it is reasonable to think that Anderson was looking for a way to screw with Herring. In fact by the wording of the dissenting opinion, Mr. Anderson was not usually at this office and happened to have been informed that Herring was at the impound lot. Why? For what purpose would a law enforcement agent inform Mr. Anderson that Herring was at a certain location? What business was it of Mr. Anderson what Mr. Herring was doing at the Clerks office? And how does is very presence warrant an immediate inquiry as to whether he has a warrant for his arrest? This would explain in part what happened next:
So we have admitted at the outset that Mr. Herring was not a suspect of anything at the time that he entered Coffee County Clerk's office. Herring, as per his rights, was attempting to obtain material from his impounded vehicle.
3) It is noted in At this point let me point the reader to the show "Parking Wars" shot in Philadelphia PA. On that show we see that no one can get to their vehicle without showing a driver license, registration, proof of insurance and if necessary the court document showing the proper judgment. You can't go to the parking authority and say: Hey I have a license (or whatever), give me my vehicle. No, you MUST have documented proof. Similarly, if you wanted to get material from your vehicle you must sign a document and be escorted to the vehicle. In fact you can't even go back if you forgot something. You must sign another set of forms.
In this case we find that the court noted that Anderson basically went fishing for warrants. First he tried his county. Not satisfied with the results he then went to the next county. No doubt he would have tried another neighboring county if he could. This is a common thing done by police, who will stop (usually black men) looking for a reason to detain them further even though at the time the citizen has done nothing to warrant such behavior. Anyway, Mr. Anderson motivated for what can reasonably be seen as personal reasons, was told, hearsay style that there was a warrant for Mr. Herring's arrest. I say hearsay because by the evidence given to the court, Mr. Anderson had no actual evidence that there was a warrant. Mr. Anderson, instead of waiting for the fax transmission of the actual warrant, which would have substantiated the hearsay declaration, Mr. Anderson took it upon himself to have Mr. Herring arrested.
So we see the clear contradiction here: A citizen can be denied reclamation of their property for not producing a license, registration or proof of insurance, but an agent of the state can use hearsay declarations to arrest a person and search their person and property. Clear contradiction. That there us usually or "never been" a mistake is irrelevant, the 4th Amendment is clear: Shall not. Period. There was no warrant. Regardless to what the computer said, the actual document did not exist. Had Mr. Anderson followed procedure and waited for the confirmation fax, the arrest would not have happened. It was clear that Mr. Anderson had it in for Herring and therefore skirted policy in order to exact his revenge for the earlier incident between the two.
There was no need to arrest Mr. Herring at that point in time either. From what we find in the evidence, Herring had no clue that he had a warrant out for his arrest (or he would not have walked into a county clerk office). He was not a flight risk, nor was he an immediate danger to the community. All Mr. Anderson had to do was wait for the fax. and upon confirmation of the hearsay declaration, directed the police to arrest Mr. Herring either on sight, or at his known address(es). All would have been legal and fell within the bounds of the 4th Amendment.
Furthermore, on the subject of confirmation. It is entirely possible for either clerk to have entered Herring's name incorrectly into the computer system. How often do people misspell Google searches? What if either clerk had misspelled Herring's name and came up with a warrant for Herrin? or Herrinh? or Herrinb? or Jerring? you see? This is why confirmation is important. This is why there is verification of records. It is to protect the citizen from the state. Ultimately as pointed out in the dissenting opinion, the purpose of the 4th Amendment is to protect the citizen from the state regardless of whether the state is acting maliciously or accidentally. It is clear to me that Mr. Anderson was acting in terms of a vendetta against Mr. Herring and abused his authority in seeking to detain Mr. Herring.
The majority decision noted that they believe that "The deterrent effect of suppression must be substantial and outweigh any harm to the justice system" This was substantial. An agent of the state acting on hearsay, when there is a policy in place to confirm, goes on to arrest a citizen, is substantial. There is no harm to the justice system (though the err should always, IMHO, go to the citizen) because there was already a procedure for the "justice system": The fax copy of the alleged warrant.
So it is my opinion that the majority decision of SCOTUS is wrong and is a further erosion of the rights of citizens under the 4th Amendment.
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