Fourth Amendment Remedial Equilibration: A Look at Herring v. United States and Pearson v. Callahan

David Owens

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The Fourth Amendment protects the “right of the people to be secure . . . against unreasonable searches and seizures . . . .”1 But, this amendment has long been steeped in controversy, especially when it comes to determining how to enforce it—by exclusionary rule requiring suppression of unlawfully-obtained evidence, civil damages, an administrative consequence, or other means. This controversy implicates broader questions about the relationship between a right and its remedy, which are both abstract and practical. On the abstract side, for instance, Chief Justice Marshall tells us that “it is a general and indisputable rule, that where there is a legal right, there is also a legal remedy by suit or action at law, whenever that right is invaded,” which exhibits the deeply-held normative principle that when a right is declared it ought to be accompanied by an attendant remedy. On the practical side, Karl Llewellyn notes, “[a] right is as big, precisely, as what the courts will do.”2

This editorial takes up two decisions from the Supreme Court’s 2008 Term, which together indicate that, in the Fourth Amendment context, “what the courts will do” has been, and may continue to be, restricted under the Roberts Court.

In Herring v. United States, the Court split 5-4 and refused to apply the exclusionary rule to evidence obtained in an arrest made where the officer erroneously believed—due to poor, negligent police recordkeeping—that a valid warrant justified the arrest, making the search a Fourth Amendment violation. The holding appears narrow: “when police mistakes are the result of negligence . . . , rather than systemic error or reckless disregard of constitutional requirements,” the exclusionary rule does not apply.3 Yet, by finding that the costs outweighed the benefits of exclusion for “negligent,” as opposed to systemic, widespread errors, the Court further weakened the primary criminal law remedy for Fourth Amendment violations.

Then, in Pearson v. Callahan, the Court unanimously invoked qualified immunity to bar a section 1983 suit against officers who searched a defendant’s home in reliance on the “consent-once-removed” doctrine, finding the right not “clearly established” at the time of the violation. Pearson’s significance, though, stems from its decision to abandon the sequencing rule of Saucier v. Katz, which required courts to address the question of whether a constitutional violation had occurred before addressing the clarity of its establishment for qualified immunity purposes. Now, “while the sequence set forth [in Saucier] is often appropriate, it should no longer be regarded as mandatory.”4

Notably, both of these cases purport to deal solely with Fourth Amendment remedies, not the right itself, but, as Llewellyn and Chief Justice Marshall demonstrated, these remedy-centered decisions implicate both sides of the right-remedy nexus. One useful way to interpret the remedial relationship between Herring and Pearson is Darryl Levinson’s “remedial equilibration” thesis, which argues that rights and remedies are “inextricably intertwined,” because “[r]ights are dependent on remedies not just for their application to the real world, but for their scope, shape, and very existence.”5 When we focus on the right-remedy nexus three trends emerge: (1) remedial deterrence, where the right is shaped by the nature of the remedy that will follow if violated; (2) remedial incorporation, where a right effectively incorporates a remedy (typically through the prophylactic, preventative injunctive relief); and (3) remedial substantiation, where the value of the right is determined by remedial changes, that is, “expansions and contractions . . . [that] functionally alter[]” or “change[] the practical meaning of the right.”6

Conversely, both cases adhere to a form of “rights essentialism” by disaggregating right from remedy and assuming that any limits imposed on the scope of the remedy will not affect the underlying right. This strategy is dangerously inattentive to the consequences of alterations to the rights-remedy nexus. Thus, when viewed from the remedial equilibration perspective, Herring and Pearson take on new significance: they diminish the meaning of the Fourth Amendment itself. More particularly, I conclude that although Marbury’s right-remedy linkage has never been taken literally, Fourth Amendment violations where unlawfully obtained evidence is included, but the right is not “clearly established,” have no remedy. Nor are citizens assured that future officers engaging in the same conduct will be liable or face any serious consequence. Together then, these cases turn Marbury on its head; in some instances, rights presumptively lack an adequate legal remedy.

Herring v. United States

When Bennie Herring was stopped by the Coffee County Sheriff’s Department after retrieving something from his impounded truck, Investigator Mark Anderson spotted him and asked the warrant clerk to check for any outstanding arrest warrants. Finding none, Anderson asked the clerk to check with her Dale County counterpart, who reported that their computer database indicated there was an active warrant for Herring’s arrest due to a failure to appear. When the Coffee County clerk asked for a faxed copy, however, the Dale County clerk could not find it—the warrant had been recalled some five months prior. 

In the interim, Anderson arrested Herring, and in a search incident to arrest found methamphetamine and a gun in his truck (which was unlawful as a consequence of a prior felony conviction). The search, therefore, was made without probable cause or pursuant to a valid warrant—a violation of the Fourth Amendment. Accordingly, the parties agreed that there was at least some rights violation; the only question for the Court was what remedy, if any, should be available. The Herring Court’s answer—none!—comes in two big steps.

  1. Passage of Time

            First, the Chief Justice relies upon the time and space between the bookkeeping error and the unlawful search as a mechanism for both (a) minimizing the rights violation and (b) subsequently separating the violation from the remedy applied during the criminal prosecution. There are three significant moments: (T1) the Dale County Clerk’s error in relying upon the faulty computer database, (T2) the unlawful arrest, and (T3) the use of the unlawfully obtained evidence in the criminal prosecution.

Finding that the Dale Country recordkeeping error was an act of “isolated negligence attenuated from the arrest,”7 the Court sees T1 as the relevant point for considering whether suppression is warranted. But the attenuation between T1 and T2, of course, does not make the arrest anymore constitutional. Instead, this attenuation might make it more problematic. In situations where officers are required to make split-second decisions in a volatile or dangerous situation, or are worried about the spoliation of specific evidence, “reasonableness” may justify a greater degree of error. This is the basis for the “exigent circumstances” exception to a warrant requirement, and it makes general sense. When, however, as in Herring, the arrest is not a response to an immediate danger (or probable cause to believe that one exists), and no “exigent circumstances” are present, the scope of “reasonable” police conduct should be narrower, not broader.

The relationship between T2 and T3 also has remedial significance because the Court draws a sharp distinction between the unlawful search itself and the subsequent use of that information to effect a conviction. In the Chief Justice’s view, exclusion is not necessary because the intrusion on personal privacy has already been exacted and, as Stone v. Powell put it, the “reparation comes too late.”8 But, from the remedial equilibration perspective, this disaggregation of rights violation from the remedy may be more troubling than the first. If we broaden the scope of the Fourth Amendment violation by acknowledging the entire set of consequences flowing from an initial search, the Fourth Amendment violation, I posit, actually continues throughout the prosecution. The use of unlawfully obtained evidence during the criminal prosecution further disrupts the security that the Fourth Amendment was meant to protect.

Thus, the Court’s interpretation of the space between T1 and T2 emasculates the significance of the right by loosening the standard required of officials in a manner inconsistent with the rationale behind the exigent circumstances doctrine.  In the second space—between T2 and T3—the exclusionary rule is considered unnecessary because the Court presumes the constitutional violation ends with the search and does not continue into the subsequent prosecution, ignoring the full consequences of the unlawful action.

  1. Negligence Does Not Warrant Suppression

            The second, and perhaps more significant, essentialist step comes when the Court seems to raise the trigger for exclusion. The Chief Justice relies on the “crucial” fact that the police error was “negligent, but . . . not . . . reckless or deliberate,” and concludes that in these instances the exclusionary rule no longer applies.9 One could easily argue that the negligence-based dispute is really just about how the majority, contrary to the dissenters, calculates the balance of costs and benefits of exclusion in this particular instance—quintessential deterrence-based remedial reasoning. We might also argue about whether the Court underestimates the value of exclusion, or overestimates the costs of suppressing evidence for police enforcement. This debate is different from my concern here.

Significant for my purposes is the fact that the Court operates on the presumption that right and remedy are hermetically sealed. That move permits it to proceed unworried about consequences of ratcheting up the exclusionary trigger. In terms of remedial deterrence, this decision reduces police officers’ incentives to refrain from (or at least exercise due care to avoid) violating the Fourth Amendment. While one can only hypothesize precisely how this change will affect the right, it likely means at least three things: (1) criminal defendants can expect to have more unlawfully obtained evidence used against them in the criminal prosecution; (2) more individuals will be convicted and/or receive longer sentences (e.g., drug convictions often rely on quantities obtained); and (3) more individuals will be subject to unlawful searches that turn up nothing, reducing the substantive value of the Fourth Amendment right applied to these individuals. In short, Herring simultaneously increases the likelihood of official lawlessness while reducing the sanction for doing so. This is quintessential remedial substantiation: “limitations on the consequences of violating [the Fourth Amendment] . . . change[] the practical meaning of the right.”10

Herring reminds us that exclusion is not a “necessary consequence of a Fourth Amendment violation,”11 (indeed, it cannot be; many unlawful searchers may turn up no excludible evidence), but if exclusion is not required, what is a necessary consequence of a Fourth Amendment violation? Unsurprisingly, given his essentialist approach, Justice Roberts demonstrates little regard for this question, and leaves us to speculate how we should think about the other primary form of remedies for Fourth Amendment violations—civil damages; a matter left for Pearson.

Pearson v. Callahan

  1. The Set-Up

      Like Herring, the Court’s remedial analysis in Pearson deserves attention with respect to its meaning for Fourth Amendment rights. Afton Callahan sold methamphetamine to an informant working to clear his own pending charges, whom Callahan had voluntarily permitted to enter his trailer home. Then, on the informant’s signal, officers who were part of the Central Utah Narcotics Task Force entered Callahan’s home, arrested him, and conducted a warrantless search of his trailer. The evidence obtained was used to secure his conviction, and the state argued that “exigent circumstances” justified the warrantless search. On appeal, however, the state conceded exigent circumstances were not present, but argued that the inevitable discovery doctrine justified the use of the evidence. The Utah Court of Appeals disagreed and vacated Callahan’s conviction, leading him to file a section 1983 suit for civil damages alleging a Fourth Amendment violation.

The Supreme Court unanimously reversed the Tenth Circuit’s holding that the officers were not entitled to qualified immunity, and did so without addressing the underlying rights question or the contours of the consent once-removed doctrine. In so doing, the Court reworked the structure of the qualified immunity inquiry under section 1983 and overturned part of Saucier v. Katz. Under Saucier, courts were required to address the constitutional violation before asking whether the right was “clearly established” to determine whether the officers would be liable. After Pearson, this sequence was no longer mandatory.

Situated within the continued evolution of the meaning of the Fourth Amendment and its remedies, Pearson’s abandonment of Saucier sequencing goes a step further than the Rehnquist-era balance of individual and collective interests embodied in its qualified immunity doctrine. Qualified immunity makes it easier for courts to expound new constitutional rules, because each time they do, they need not fear that the courthouse doors will be flung open by plaintiffs attempting vindication of this (newly pronounced) right. This remedial device generally permits relatively cost-free rights expansion, though only prospectively. Like Teague v. Lane’s non-retroactivity principle, which generally means applying new rules to pending cases on direct review only, qualified immunity “facilitates—and may be a prerequisite for—the creation of new rights by reducing the cost of inventing them.”12 Pearson, however, alters this balance by allowing (though not requiring) courts to hop-scotch the rights issue and address a dispositive (and presumably unrelated) question about the remedy. Despite the low-cost understanding of qualified immunity and constitutional remedies advanced by Chief Justice Rehnquist and evident in Saucier and Teague, in Pearson the Court held that expounding the right first can, in fact, be a quite pricey endeavor.

  1. Saucier’s Price

      Though Pearson acknowledges that addressing the constitutional question first “promotes the development of constitutional precedent and is especially valuable with respect to questions that do not frequently arise in cases in which a qualified immunity defense is unavailable,”13 the Court quickly jumps into essentialist policy mode by noting several “price[s]” of always addressing the rights question.

Running against its prior acknowledgment, the Court argues that Saucier is too “pricey” where considering the right fails to make a “meaningful contribution” to the development of constitutional precedent. Fourth Amendment cases typically fail to perform the “law elaboration” function—incorporated in the Teague-like compromise of the qualified immunity doctrine—because “the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts.”14 Fourth Amendment fact-dependency results, in part, because of the Amendment’s mushy text—“probable cause,” “objective reasonableness”—and necessarily implies that some mistakes or acts of overreaching (the reasonable ones) will be permitted.

But, when combined with a strong qualified immunity doctrine resting on the “clearly established” prong, many objectively unreasonable searches will also fail to entitle a plaintiff to any relief—immunizing these unlawful acts. Consider, for example, Wilson v. Layne: all nine Justices agreed that having media ride-alongs that permit video and photographic intrusions into arrestees’ homes was a Fourth Amendment violation, but despite this unanimity, eight of nine Justices agreed that the officers should be immune from suit because the violation had not been “clearly established.”

Further, fact dependency may be all the more reason for addressing the rights-violation question under the Fourth Amendment. If the right to be secure against unreasonable searches is to retain (or, depending on your perspective, “obtain”) its vitality, some recovery for Fourth Amendment violations must be afforded. The practice of continued avoidance on Fourth Amendment questions means, in Herring-esque fashion, that mistakes will not only go unremedied but instead incentivized. Refusing to consider a constitutional violation unless clearly established rewrites the Fourth Amendment: “The right to be free of unreasonable searches and seizures only if such conduct is clearly established at the time of the violation.” This amounts to a substantive limitation on the Fourth Amendment right—instead of using objective reasonableness as a guide, officers need only worry about what has been clearly established.

*  *  *

Pearson’s reach should not be overstated. While there is much, in terms of remedial equilibration and the relationship between rights and remedies, to be made out of the Court’s analysis and its decision to abandon the eight-year Saucier experiment, the sky is not falling, and the switch from a mandatory rule to a discretionary choice does not necessarily mean remedial stagnation. We are thereby reminded of the Court’s admonishment that “[a]ny misgivings” concerning the abandonment of Saucier’s mandate “are unwarranted” because lower courts are not prevented from following the procedure but merely “have the discretion to decide whether that procedure is worthwhile in particular cases.”15 Yet, given the “costs” of Saucier, we have strong reason to believe that in the mine run of cases the clearly established inquiry will dominate courts’ consideration of qualified immunity motions.

Conclusion

Herring and Pearson represent the remedial flipsides of the Fourth Amendment coin—raising the bar in the criminal context for excluding unlawfully obtained evidence, while, in the civil context, lowering the bar for dismissing damages suits without even determining whether, and to what extent, a constitutional violation occurred. Restricting this remedial structure can only serve to change, and for all practical purposes, devalue that coin. Again, Justice Marshall’s prose remains timeless: “The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.”16

Acknowledgments:

Copyright © 2010 Stanford Law Review.

David B. Owens is a J.D. Candidate at Stanford Law School in the Class of 2010.

This Legal Workshop Editorial is based on the following Law Review Article: David B. Owens, Fourth Amendment Remedial Equilibration: A Comment on Herring v. United States and Pearson v. Callahan, Comment, 62 STAN. L. REV. 563 (2010).

  1. U.S. CONST. amend. IV (emphasis added).
  2. KARL N. LLEWELLYN, THE BRAMBLE BUSH 83-84 (1951).
  3. 129 S. Ct. 695, 704 (2009).
  4. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
  5. Daryl J. Levinson, Rights Essentialism and Remedial Equilibration, 99 COLUM. L. REV. 857, 857-58 (1999).
  6. Id. at 905, 910.
  7. Herring, 129 S. Ct. at 698.
  8. 428 U.S. 465, 486 (1976) (quoting Linkletter v. Walker, 381 U. S. 618, 637 (1965) (internal quotation marks omitted)).
  9. Herring, 129 S. Ct. at 700.
  10. Levinson, supra note 5, at 910.
  11. 129 S. Ct. at 700 (emphasis added).
  12. Levinson, supra note 5, at 889.
  13. 129 S. Ct. at 818.
  14. Id. at 819 (quoting Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir. 2006) (internal quotation marks omitted)).
  15. Id. at 821.
  16. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803).

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