Evidence Laundering in a Post-Herring World

55 Pages Posted: 2 Feb 2015 Last revised: 17 May 2017

See all articles by Kay Levine

Kay Levine

Emory University School of Law

Jenia Iontcheva Turner

Southern Methodist University - Dedman School of Law

Ronald F. Wright

Wake Forest University - School of Law

Date Written: 2017

Abstract

The Supreme Court’s decision in Herring v. United States authorizes police to defeat the Fourth Amendment’s protections through a process we call evidence laundering. Evidence laundering occurs when one police officer makes a constitutional mistake when gathering evidence and then passes that evidence along to a second officer, who develops it further and then delivers it to prosecutors for use in a criminal case. When courts admit the evidence based on the good faith of the second officer, the original constitutional taint disappears in the wash.

In the years since Herring was decided, courts have allowed evidence laundering in a variety of contexts, from cases involving flawed databases to cases stemming from faulty judgments and communication lapses in law enforcement teams. Courts typically zero in on individual officer behavior, or limit their review to a single incident rather than considering the entire course of conduct. In so doing, they have taken the concept of good faith to unprecedented heights.

The expanded good faith doctrine that Herring embodies makes visible the individualistic view of police work that is implicit in much of Fourth Amendment doctrine. This atomistic perspective, however, fails to appreciate the realities of modern policing, which depends heavily on teamwork and delegation. At the same time, the increased emphasis on police intentions and on balancing the costs and benefits of exclusion brings our courts into closer alignment with courts elsewhere in the world. As the exclusionary rule doctrine in the U.S. converges with its counterparts abroad, comparative work offers useful insights about future doctrinal developments and the likely effects of the transformed exclusionary rule.

Keywords: exclusionary rule, evidence, criminal procedure, Herring v. United States, Fourth Amendment, good faith, comparative criminal procedure, balancing

JEL Classification: K14, K41, K42

Suggested Citation

Levine, Kay and Turner, Jenia Iontcheva and Wright, Ronald F., Evidence Laundering in a Post-Herring World (2017). Journal of Criminal Law and Criminology, Vol. 106, No. 4, 2017; Emory Legal Studies Research Paper No. 15-328; SMU Dedman School of Law Legal Studies Research Paper No. 181. Available at SSRN: https://ssrn.com/abstract=2558737 or http://dx.doi.org/10.2139/ssrn.2558737

Kay Levine (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States

Jenia Iontcheva Turner

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

Ronald F. Wright

Wake Forest University - School of Law ( email )

P.O. Box 7206
Winston-Salem, NC 27109
United States
336-758-5727 (Phone)
336-758-4496 (Fax)

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