HERRING v. UNITED STATES

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ORAL ARGUMENT OF PAMELA S. KARLAN ON BEHALF OF THE PETITIONER

Chief Justice Roberts: We'll hear argument first today in Case 07-513, Herring v. United States.

Miss Karlan.

Ms Karlan: Thank you, Mr. Chief Justice and may it please the Court: In February 2004, the Dale County circuit clerk told the local sheriff's department that the court was recalling a warrant that had been issued earlier for Petitioner's arrest.

Having received that notice, someone in the sheriff's department physically removed the warrant from the file and physically took the warrant back to the court clerk's office.

But no one either then or later in the sheriff's department ever updated the computer file to indicate that the record had -- that the warrant had been recalled.

As a result of that police department error, the Petitioner in this case was subject to a warrantless arrest for which there was no probable cause five months later.

Chief Justice Roberts: Didn't they have some regular system for updating the computer base?

I mean, I assume it was updated at some point.

Ms Karlan: No.

Your Honor.

There was no -- there's nothing in the record to suggest that this department ever does, for example, what the FBI does, which is to conduct periodic audits.

Had they conducted one, they would have discovered almost instantly what they discovered five months later, which was there was no warrant in this case.

So this--

Chief Justice Roberts: So people who are, you know, the warrant is served, they're arrested, they go to trial, they're in jail, their name still shows up as having a warrant out for their arrest.

Ms Karlan: --We don't know, Mr. Chief Justice, because this is a department that as far as the record reflects conducts no audits of any kind to update its files.

And if you look at page 41 and page 60 of the joint appendix, one of the things you'll discover about this department is that everyone in the department has access to the physical place warrants are kept.

They're kept in several different places in the office.

Chief Justice Roberts: Well then, how did this warrant clerk, I guess is what I'd call her, discover the error?

She discovered it within 10 or 15 minutes, right.

Ms Karlan: She discovered it because what happened is a clerk in another police department called and said, is there a warrant for Petitioner's arrest.

She looked at the computer list on her computer and said yes.

Then this other warrant clerk said, please fax us a physical copy of the warrant.

So she went to the file where the warrant should have been.

It wasn't there.

She went to another file.

The warrant wasn't there.

She then called the court clerk's office and discovered that they had recalled the warrant which was back in their records five months earlier.

Chief Justice Roberts: Why did the first -- first person in that scenario need a physical copy of the warrant?

Ms Karlan: The record doesn't reflect that, but she simply I guess wanted to verify that there actually was a warrant because they were picking Petitioner up in a different county.

Justice Alito: Does your argument depend on the quality of the recordkeeping in this particular department?

I thought your argument would apply even if this department had excellent recordkeeping procedures but nevertheless made a mistake in this instance.

Ms Karlan: That's correct, Justice Alito.

Our view is, just as is true with respect to probable cause, the fact that 99 percent of a department's arrests are with probable cause doesn't mean that when they arrest someone without probable cause you say, well, you get one bite at the apple or a sort of "good enough for government work" theory.

Justice Alito: You're not asking for Arizona v. Evans to be overruled are you.

Ms Karlan: No.

We're asking to you apply Arizona v. Evans.

And if I could give an answer to the question the Chief Justice was asking earlier that comes from Arizona v. Evans, what happened in Arizona v. Evans -- and Justice Stevens mentions this in his dissent there -- is the clerk discovered there, the court clerk discovered, that the warrant that had been, that she had verified, had in fact been recalled.

And so what they instantly did is they checked their files, and they discovered four other warrants from that same day that had been recalled but that were still in their files.

Here we didn't have anything done after they discovered the error.

They discovered this error and, as they say, have gone on their merry way.

There's nothing in this record--

Chief Justice Roberts: Well, there was something done in this particular case, though, right?

The warrant clerk notified -- was it the Coffee County people?

Ms Karlan: --Yes, Mr. Chief Justice.

Chief Justice Roberts: --that the warrant -- that the information she had given 10 minutes before was inaccurate.

Ms Karlan: Yes, Mr. Chief Justice.

And that indicates part of what we're concerned about here, which is this is a department that was built for speed, not for accuracy.

Justice Alito: But none of that matters for your argument, does it?

Ms Karlan: Oh, no.

Justice Alito: You want to make it -- you want to draw a clear line between errors by -- by clerical court employees versus errors by police employees.

Ms Karlan: That's correct.

We think that's the most workable argument, because what we want is a system in which suppression hearings can be conducted expeditiously based on the facts of particular cases.

Justice Alito: How expeditious would it be -- suppose there's negligence on the part of both a court employee and a police department employee.

What is the judge supposed to do in deciding the suppression motion?

Is this a comparative negligence determination.

Ms Karlan: I don't think it would be exactly a comparative negligence determination.

I think it -- that raises a difficult question and the way I would approach that question is to perhaps use some of what Justice Kennedy talked about in Hudson as a causation approach.

That is, if but for the negligence of the police department there would have been--

Justice Scalia: I thought negligence is irrelevant here.

I think if the police department was wrong, even if they had been very careful but for some reason or other they made a mistake -- so you're arguing for shear causality, not for negligence.

If negligence made the difference then we'd have to go into these factors that you say are very difficult to calculate.

Ms Karlan: --Well, Justice Scalia, I was answering Justice Alito's question and if I could just give a little bit of--

Justice Scalia: I know you were answering his question, but you want to answer it in a way that's consistent with your argument here.

Ms Karlan: --Well, it is, Justice Scalia.

So let me explain why it's consistent, which is our position is if police department error causes an unconstitutional arrest then you should suppress evidence, but if both the police were negligent and the clerk was negligence and the police department's negligence.

Justice Scalia: You've injected the word "negligence".

Ms Karlan: Okay, let me take the word "negligence" out then.

If the police error didn't cause the discovery of the evidence--

Justice Scalia: Alone, but--

Ms Karlan: --that's correct.

Justice Scalia: --there is dual causality.

Ms Karlan: Yes.

Justice Scalia: It isn't a matter of simple negligence.

Ms Karlan: No, that's correct.

That's correct.

Chief Justice Roberts: How is it going to keep--

Justice Alito: How are -- how are you going to determine whether there's error without determining whether there's negligence?

Suppose the court clerk calls up the police department and says the warrant is still outstanding, and in fact it's not.

And it sends them over a physical copy of a warrant, but that warrant has been withdrawn.

Now, the police could always take additional steps: They could send someone over to check the records, to look at the court docket to make sure that the warrant had not been withdrawn.

So there would be causality, but it would not determine what they should--

Ms Karlan: There would be no police error there.

Justice Alito: --what their duty was.

How are you going to determine where this error should be -- should be assigned?

Ms Karlan: Because in that case there would be no police error.

What this Court held in Evans is that police departments are entitled to rely on the representations of court clerks that there are warrants.

So if the court clerk erroneously sends a warrant over, the police are not required to look behind that warrant, just as they're not required in Evans.

Justice Alito: Let me give you another example.

Suppose that the court clerk calls up and says -- it leaves a message, gives a message to somebody in the police department.

And they memorialize that, and they say "called up".

And let's say the warrant number is the same as the docket number of this case.

So the court employee says -- writes down "Called up", says,

"Warrant quashed in warrant, in case 07-513. "

The court -- the police department has a record of the call, and they say,

"Received call from court clerk. "

"Warrant to be quashed. "

"Warrant quashed in case 07-531. "

And so the 513 is not quashed; the person is arrested.

Now, who caused that?

You have to have a hearing?

Ms Karlan: The police -- the police department person caused that by writing down the wrong number.

Justice Alito: How do you know that the police department wrote down the wrong number?

Ms Karlan: Well, it's the same question as--

Justice Alito: How do you know what number was--

Ms Karlan: --Well, it's the same question as in Evans: How do we know who made the mistake?

That question, just like the question -- is a question on which you're going to have to hold a hearing because Evans says if it was court error, there is no suppression; and our position is, if it was police error, there is.

But that's a very manageable hearing.

Justice Scalia: Just so I have your theory firmly in mind, you would say there is police error even if what happened was that there was an unpredictable and unavoidable computer glitch, no negligence on anybody's part?

The computer simply malfunctioned, got it wrong.

It wasn't negligence.

You would still say that that is police error, and you would say that that counts against the admission of--

Ms Karlan: That's correct.

As long as it's police error, it counts against the police.

Justice Breyer: Why, if there is no negligence?

Why do you need to argue that and why do you argue that?

I mean doesn't there have to be at least negligence on somebody's part?

Ms Karlan: Well, here's the problem: There are two kinds of negligence you might have; that is, you might have the negligence of an individual employee, or what you might have is a decision to use a shoddy recordkeeping system that doesn't catch those errors.

So the question is--

Justice Breyer: Well, either of those things are negligence or worse.

Ms Karlan: --Yes.

Justice Breyer: So what I didn't understand is why you would charge the police with anything or suppress a warrant where there was a mistake but no one was negligent or worse.

Ms Karlan: Well, we have had some difficulty finding any reported cases in which there is a police error of the kind of computer glitch that was just hypothesized.

That is where the machines--

Justice Breyer: But what you argued for--

Ms Karlan: --Yes.

What--

Justice Breyer: --you said, it should be suppressed even if no one is negligent or worse.

And I have trouble seeing why you're suppressing a warrant where no one does anything wrong at all.

Ms Karlan: --Well, part of what I'm trying to get at in my answer to your question is it's unclear in that situation whether anyone has done something wrong; that is, whether somebody in the police department programmed the police department computer--

Justice Kennedy: Let's just assume the hypothetical -- the hypothetical: The computer malfunctions.

Ms Karlan: --Well, you could have an act of God exception to the exclusionary rule, if you wanted to, but this case doesn't ask you to do that.

Justice Kennedy: I'm sure a computer might be compared to God, but let's ----

[Laughter]

Justice Stevens: Could I ask this question--

Ms Karlan: It's more powerful sometimes.

Justice Stevens: --Could I ask this question?

You're saying that the question is whether anybody did anything wrong at all.

This is not undisputed, that this person was illegally arrested?

The arrest itself violated the Fourth Amendment.

Ms Karlan: There is no question that as a matter of fact--

Justice Stevens: The question is whether it can be justified.

Ms Karlan: --Yes.

This was a warrantless arrest without probable cause.

And the question is: Does the government have some sort of affirmative defense as to why it should be allowed to use this?

Now, in Evans--

Chief Justice Roberts: --It's a separate question.

It may be an illegal arrest, but the question is the separate one of whether or not you exclude the evidence collected incident to that arrest.

And we have, in several cases, separated the two questions, and I guess it's difficult for me to see if no one has done anything wrong, no one, why you would suppress the evidence in that case.

Ms Karlan: --Well, that case of course is not this case, and you might want to leave open the question of the--

Chief Justice Roberts: No, but you have this difficulty: Do we have to get into negligence, or should we assume, as I understand to be your theory, as Justice Breyer put it, that you would still suppress the evidence when no one has done anything wrong?

Ms Karlan: --We are asking in this case for you to suppress when someone has done something wrong.

Justice Ginsburg: But how do you know?

How do you know?

That's the problem.

Ms Karlan: Well, we do know that someone did something wrong here, because we know--

Justice Kennedy: But we want an answer--

Ms Karlan: --No, I'm trying to answer--

Justice Kennedy: --We want an answer to the question.

Ms Karlan: --No, I'm trying--

Justice Kennedy: Let's assume no one did anything wrong.

Ms Karlan: --I know.

I'm trying to answer that question.

Justice Kennedy: --because this bears on the fact of why are we doing this at all.

Ms Karlan: No.

I'm trying to answer that question, and the point I wanted to make is: This case asks for a narrow rule, but the question that you may also want to be thinking about here is how to have a workable suppression hearing.

And if you require showings of different levels of fault, rather than asking was this police-generated error, the suppression hearings are going to be somewhat more cumbersome.

So you have a choice.

Justice Scalia: --Exactly.

You give something, you get something.

If you adopt a negligence theory, the--

Ms Karlan: We would be happen with the negligence theory.

Justice Scalia: --the noose is not as wide, but on the other hand it's a lot harder to calculate whether you -- every case involves an inquiry into whether there's police negligence or not.

Ms Karlan: That's exactly what I'm--

Justice Scalia: A much easier rule, was there a warrant or not?

If there wasn't, end of the -- end of the inquiry.

Ms Karlan: --Well, that's exactly why I -- why I said I think the easier rule for judges faced with suppression hearings is a rule that says--

Justice Breyer: I mean, I don't know what the underlying law is here.

I mean -- I guess it's little weird, but what happens if the policeman arrests the wrong person, but it's nobody's fault?

You know, the person was pretending to be his brother.

Ms Karlan: --Well, that's like--

Justice Breyer: Or the mother said it's John and it's really Joe.

And so, the policeman wasn't at fault.

They arrest the wrong person.

I guess that's happened in history--

Ms Karlan: --Sure.

Justice Breyer: --but do they suppress things then?

I wouldn't think so--

Ms Karlan: Well, there are two different--

Justice Breyer: --but maybe they do.

Ms Karlan: --There are two different kinds of cases where police arrest people: One set of cases where the policeman is arresting on the basis of probable cause, and there, there's a lot of room for error that is based on the facts.

The mother told him it was Joe when it was really John.

That's good enough, good enough, because that's probable cause.

Justice Breyer: But do we suppress?

Ms Karlan: No, you do not--

Justice Breyer: We do not?

Okay.

Ms Karlan: --There was not even a Fourth--

Justice Breyer: So there's no reason then, if we don't suppress when there's no error in the part of the policeman, none, it was just a weird circumstance, then I don't understand why we would suppress here.

And nor do I understand why you have to argue this because I thought it's clear here that there is error, and it was negligently caused.

There were four months that went by without anybody doing anything about this mistake.

Ms Karlan: --No.

That's correct.

If I can just say one thing that will make this perhaps a little clearer, Justice Breyer, you would not even find a Fourth Amendment violation in the first place in the hypothetical you gave because there was probable cause to arrest.

Justice Scalia: Isn't there probable cause here?

Ms Karlan: Probable cause to do what?

Justice Scalia: He thought he had a warrant; he had probable cause to arrest.

Ms Karlan: There is no such thing as probable cause to believe there's a warrant.

You yourself in Hudson said it's a bright-line rule.

Either there's a warrant or there isn't.

Here there was no warrant.

Chief Justice Roberts: Well, that's just rephrasing it.

It's probable cause based on the existence of a warrant, and it turns out to be there is a mistake in the warrant.

Ms Karlan: This Court has never said that before, which is it's not probable cause to believe there's a crime because there's a warrant.

It's -- you've always separated those two lines of cases for--

Justice Scalia: It doesn't seem to make sense, though.

Why should we separate the two?

Ms Karlan: --Well, because here--

Justice Scalia: If the policeman is mistaken about whether he saw this guy picking somebody's pocket, he's mistaken about that, and in that case, the search is -- the product of the search is admitted.

In the other case he's mistaken about whether there was a warrant.

Why do you want to draw a line between those two?

Ms Karlan: --Well, for two reasons: One is, even in the probable cause case, if the reason he thought there was probable cause is another officer told him there was probable cause and that officer was wrong, this Court said in Leon you continue to suppress.

Here, this police officer was told by other police personnel that there was a warrant, and there wasn't.

So it's a case just like the cases post-Leon -- you suppress when the chain of information is fatally flawed by police error, which is what happened here.

Chief Justice Roberts: So, you would impose a burden on the officer on the street serving a warrant?

When he gets the call saying there's a warrant, he's supposed to say,

"Are you sure? "

"Did you double-check with the clerk? "

"When was the last time they updated the computer system? "

"I don't want to go through all this if the evidence is going to be suppressed. "

At every chain in command, you would impose that burden.

Ms Karlan: No, I would not, Mr. Chief Justice, because if you announce that police error is going to lead to the suppression of evidence, the police will do a better job of maintaining their records.

Chief Justice Roberts: Yes, but I mean I don't know what the situation is like--

Ms Karlan: And then you won't have this problem.

Chief Justice Roberts: --I don't know what the situation is like in Dale County.

They probably don't have the latest version of Word Perfect, or whatever it is.

They are probably making do with whatever they can under their budget and doing the best they can.

Ms Karlan: But there's not a Barney Fife defense to the violation of the Fourth Amendment either.

If a department is having its records kept the way they are keeping them here, then suppression is the only thing that tells them: You're going to have to--

Chief Justice Roberts: Well, you said this wasn't anything in the record about what type of program they might have, whether they were updated.

They found the mistake in ten minutes.

Ms Karlan: --Which suggests if they had been doing a good job of maintaining their records all along, this violation never would have occurred.

Justice Alito: --Well, what's the justification for drawing a distinction between a court employee and everybody who works for the police department?

Suppose the person who makes the mistake in the police department is a -- a person who holds a unionized position where advancement is based purely on seniority, or it's a civil service position where the person is -- is totally protected from any sort of adverse job consequences as a result of displeasure about or pleasure about how the job is being -- being performed.

And what's the justification for drawing a distinction between errors committed by those two employees just based on where they fit in the organizational box?

Ms Karlan: Well, three things: One is the police themselves are often unionized and protected from retaliation.

Second--

Justice Alito: What if it's not a police officer; it is not a law enforcement officer?

It is a clerical employee, or it's a computer guy.

Ms Karlan: --Well, I think that the clearest line is inside the police and outside, and let me give you a couple of reasons why.

The first reason--

Justice Ginsburg: Well, one is that you -- you are stuck with the Arizona v. Evans, which says if it's the court--

Ms Karlan: --Well, if it's the court, yes; but I -- I was going to give some reasons why the police department should be treated as an integrated whole.

One reason why is in many departments officers, sworn officers, who are on desk duty for physical disabilities and the like, perform clerical tasks.

The second is on the record in this case.

We don't know whether it was a sworn officer who removed the warrant from the file or it was a clerk, and there's no way of finding that out now.

A third reason, if I could just point to this--

Chief Justice Roberts: Sure.

Ms Karlan: --this Court, for just a moment, is clerical personnel, support personnel -- there is a reason they are called "support personnel".

They support the mission of the office, and here this office decided to maintain its records in a particular way and to have this quick reference file and the like, presumably to support--

Chief Justice Roberts: But the Coffee County people aren't called "support officers" for the Dale County police.

Ms Karlan: --They are support for the police, and this Court has--

Chief Justice Roberts: Now you keep saying this when you did this in your brief.

You just call everybody "police", "police", "police", when the question is whether there's a distinction between the Coffee County police and the Dale County police for purposes of applying the exclusionary rule.

Ms Karlan: --This Court, at least since Elkins, has recognized that police departments often operate across the board.

If I could point to Leon itself, in Leon the search was conducted by California municipal police, and the evidence was used in Federal court.

And this Court never suggested, not even for a minute, that the fact that the evidence was obtained by State-level -- local-level police and used in a Federal prosecution was relevant to the question whether or not it should be suppressed.

Because what the Court is trying to do in the exclusionary rule, as I understand it, is to deter future violations.

Justice Scalia: That's crucial to your case--

Ms Karlan: Yes.

Justice Scalia: --really, that you -- that the police will not keep good records unless -- unless we let the criminals go.

Ms Karlan: That they need a powerful incentive.

Justice Scalia: And that's the theory of the exclusionary rule as--

Ms Karlan: Yes.

Justice Scalia: --as has been expressed in writings in some of our prior cases.

Things have changed a whole lot since we adopted the exclusionary rule, and I think it's quite -- policing has become much more professional, and I think it's quite unrealistic to think that if we don't adopt the rule that you -- that you propose, police -- police departments will just willy-nilly not keep track of warrants.

I -- I just don't think that's true.

That's not professional policing, and -- and I think to say -- to apply the -- the severe remedy that you propose in this -- in this area at this date seems to me excessive.

Ms Karlan: Well, we don't think this is a severe remedy, and we think that the professionalism of the police is in substantial part a response to the message that the exclusionary rule sends, which is either you professionalize your police departments or the evidence they obtain is going to be suppressed; either you maintain good records or the reliance on those records is going to lead to suppression.

Justice Scalia: You don't think that--

Justice Ginsburg: --We don't know if these records are good, bad, or indifferent.

As far as this record shows, this could be an isolated incident, or it could be typical of what goes on.

We just don't know.

Ms Karlan: It could be, and if I can just point to -- if you look at the Government's brief at page 48, they talk about how the FBI maintains its "Wanted" lists now.

And they show that due to a list of reforms they were able to cut the error rate there from about 6 percent to about 3 percent.

None of those reforms, limited access to entry, periodic audits, is done here.

And the last available published data, which we cite in our brief about -- about Alabama, is that they had about a 13 percent error rate.

That is, 13 percent of the--

Chief Justice Roberts: So you are back to arguing that there was negligence, and that that's pertinent.

Ms Karlan: --Well, in this case there was negligence, and you need not go any further than that.

If the Court has no more questions, I'll reserve the remainder of my time.

Chief Justice Roberts: Thank you, Miss Karlan.

Mr. Dreeben, we'll hear now from you.

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court: The exclusionary rule under this Court's cases has always been a balance between the interest in achieving some deterrence of police misconduct and the high cost of excluding probative evidence of criminal activity.

The exclusionary rule does not put the error back in the box.

It does not correct it.

It serves only as incentives for future compliance to avoid future Fourth Amendment errors.

In this case, where nothing is shown other than a negligent and isolated clerical error in the maintenance of warrants, there is no showing that suppression of evidence will achieve the kind of appreciable deterrence that this Court has said is necessary before the exclusionary rule is applied.

Chief Justice Roberts: Do we assume on the basis of the record that there is negligence in this case?

Mr. Dreeben: The district court did find that there was negligence.

There is very little in the record, Mr. Chief Justice, that explains precisely what did happen.

But I would take issue with my colleague's comment that the record shows that there were no auditing procedures.

The record simply was not made on whether there were auditing procedures.

What the district court did find based on testimony is that the Dale County Clerk's Office and the Dale County Sheriff's Office both had a reliable system of recordkeeping on which law enforcement could rely.

That's a finding of the district court.

Chief Justice Roberts: Now, Ms. Karlan made the point -- and I'd like to get your response to it -- that if we adopt something that depends on the showing of negligence, that that will require extensive hearings in every case into exactly what their computer update system was, and so on.

Mr. Dreeben: Mr. Chief Justice, I actually think that negligence alone should not be enough to justify suppression, because it would not produce the appreciable form of deterrence that this Court has said is warranted.

But I also think that--

Justice Souter: May I interrupt you there?

I mean, why do you say that?

I mean, we -- we have -- just getting outside the criminal law for a minute, we -- we've got a whole system of personal liability law in which the theory is that, in effect, requiring compensation for negligence, even though it is not an act of bad faith or malice, is -- is going to affect conduct.

Why do you assume it will not affect conduct here?

Mr. Dreeben: --I'm not sure that it won't affect conduct to some degree, Justice Souter.

I think the exclusionary rule requires far more than saying that it might affect conduct, and I think that what the Court should look at--

Justice Souter: Don't you think it's probable that it will affect conduct?

I mean, if the police know that they are going to lose the case because they are engaging in a negligent or objectively unreasonable way in -- in relation to their warrant-keeping, they are going to be more careful.

Mr. Dreeben: --I think the incremental change in police behavior will be modest at best, and I think this is crucial to my view of the case.

Justice Scalia: They -- they won't know that they are going to lose a case.

What they will know is that if they happen to arrest someone whom they should not have arrested anyway, they won't be able to prosecute him, right?

Mr. Dreeben: That's precisely so.

Justice Scalia: So they are saving themselves nothing.

I mean, this person would not have been stopped.

I mean, if the difference was we -- we caught a criminal and we could have convicted him except because of the clerical error we can't, but that's not the situation.

They would never have found this fellow but for the clerical error.

Mr. Dreeben: Justice Scalia, if you take it--

Justice Souter: But they -- but they also--

Mr. Dreeben: --if you take it--

Justice Souter: --But they also, as in this case, in the course of -- of committing their -- their negligent arrest find evidence of a crime.

Mr. Dreeben: --They do.

But from an ex ante perspective, Justice Souter, they can't know that, but they do have--

Justice Souter: They can't know that, but we all know, as a practical matter, that that's why police want the -- the greatest scope to the arrest power.

Mr. Dreeben: --No, I think that--

Justice Souter: Because in the course of doing incidental searches, they find things.

They know that, and we know that.

Mr. Dreeben: --Justice Souter, what I think it's important for the Court to know is that the police have ample incentives as it stands to try to make their recordkeeping systems as accurately as possible.

The police do not have an interest in believing that there is an outstanding warrant for someone's arrest when there is not.

The first reason is that an arrest situation is a highly dangerous encounter for police officers.

It's not one to be undertaken lightly.

That's why this Court has rules that govern searches incident to arrest in order to remove potential weapons from suspects.

The police don't want to convert what would be an otherwise routine traffic stop or no stop at all into a felony encounter that could go bad for all concerned.

Second, there is--

Justice Kennedy: Is there a 1983 violation here?

Mr. Dreeben: --On the facts of this case, Justice Kennedy, I would not say there is 1983 liability.

It's a litigable issue whether there would be the potential for a plaintiff to show, as the defendant in this case did not try to show, that there was a degree of deliberate indifference to a need to have a reliable recordkeeping system such that some official would be personally liable for the failure to have that.

Justice Kennedy: I suppose if the concern were that the police would become sloppy, then a 1983 suit would be more likely?

Mr. Dreeben: Yes.

I think a 1983 suit, and there is ample evidence that many such suits have been brought, and we cite cases in our brief and the Petitioner cites cases in his brief.

Justice Stevens: Mr. Dreeben, can I go back to your point you were just making.

What incentive does the police department have to withdraw warrants that have been cancelled?

Why not just leave them there?

As long as they are there, it would justify an arrest.

Mr. Dreeben: Well, that assumes, I think, contrary to this Court's presumption of good faith on governmental actors--

Justice Stevens: If you put aside good faith for the moment.

If you just think in terms of incentives of officers, would they not have an incentive just to leave everything there?

Mr. Dreeben: --No.

There are three reasons why they would not.

The first is the danger factor, as I mentioned.

Justice Stevens: The existence or nonexistence of the warrant doesn't affect the danger.

Mr. Dreeben: Oh, it certainly does, because it converts what would otherwise be not a stop at all or a reasonable suspicion stop into a felony arrest.

And when the police are undertaking an arrest, this Court has recognized that suspects often have an incentive to escape or to use weapons to resist--

Justice Stevens: But the incentive exists whether there is a warrant in his pocket or not.

Mr. Dreeben: --If there is no warrant, there will be no arrest.

And that's why the police have an incentive to clean up the records so that they don't send out the police on warrant situations when there is no warrant.

Justice Ginsburg: Mr. Dreeben, what you've said about the danger to the arresting office -- officer and so they don't undertake an arrest lightly, doesn't fit with the facts of this case.

This was a police officer who really wanted to go after the defendant.

He expected -- he suspected defendant was a bad guy.

So that's how this all started.

So he called his own department, do we have any warrant, and then the next county's department.

But this was an officer who wanted to go after the defendant.

Mr. Dreeben: Well, Justice Ginsburg, I assume that the Court will make its decision not based on the conduct of Officer Anderson in this case, but in an assessment nationwide of whether the exclusionary rule is necessary because the police lack incentives to keep warrant systems up to date.

And I'm giving reasons why institutionally the police do have that incentive and, therefore, undertake those kinds of efforts.

Justice Kennedy: And there are three reasons.

One is to reduce the incidence of arrests, so they don't have the hazard of felony arrests.

Number two is?

Mr. Dreeben: The second reason is police resources.

It takes a lot of time and energy to undertake a felony arrest.

Many jurisdictions have dedicated warrant forces which seek to serve outstanding warrants, and they don't want to spend their time doing it on warrants that have been recalled.

Similarly, in a case like this, the police happened to find drugs on Petitioner's person and a gun in his car, but if they had found nothing and taken him down to the station house and booked him, that would have been taking two police officers off the street for an afternoon, wasting their resources so that they're not engaged in the kind of protection of the community that the police force wants to do.

And the third reason is that it does not create community goodwill to undertake arrests when people do not have warrants and simply because of a mistake in police records they're hauled downtown.

That's the kind of thing that creates friction between the police and communities.

Justice Breyer: There is one question I have in my mind, and it's the only factor I thought of hypothetically that cuts against you.

This is the argument and I'd like you to respond to it.

I take everything you said as so.

I'll assume all that.

And so I'd still say the rule, the basic rule of suppression, putting Leon to the side, basic rule is -- the opposite of Holmes: If the constable blunders, you suppress the evidence.

Okay.

Now, our prior case -- here we have a case where the constable blundered.

I grant you, not the arresting officers.

It was a different policeman, and it was a different form of error.

But five months this thing -- this warrant had been recalled five months earlier and you agree that it was negligent.

Therefore, the constable blundered.

And the virtue of our earlier case where we said don't suppress, it wasn't the constable who blundered.

So I see an absolutely clear line: If the constable blunders you suppress; if it's somebody else who blundered, you don't.

Now, every time I've tried to think of a substitute for that clear line, I've run into trouble.

I've been sitting in my chambers with my law clerks and we've tried out five substitutes, and I can't find one decent substitute that isn't filled with problems.

Mr. Dreeben: Justice Breyer--

Justice Breyer: What is your substitute?

Mr. Dreeben: --Well, my first answer, Justice Breyer, is that this Court's exclusionary rule jurisprudence already draws a number of careful lines based on the balance that--

Justice Breyer: Right.

Well, I'm overstating my point.

What I'm really driving at and trying to show you is you, if you want to have a different rule than within the prior case, remember the one where it wasn't the police that blundered, you have to come up with some rule.

And I want to know what your rule is.

Mr. Dreeben: --Well, the rule, to state it simply, that I think should govern this case is: An isolated and negligent police clerical error in the maintenance of warrant records should not lead to suppression.

And the reason for that is there are ample incentives for the police to attempt to correct their own records such that the exclusionary rule would not approve--

Justice Breyer: So now we have -- let's think about that.

The special rule is now we have the Leon exception and now we have a new exception, and the new exception is called for isolated police clerical errors.

Well, that's going to be interesting, I suspect.

The first thing you'll have when you try to impose your rule is you will have the defense attorneys throughout the city going in to see if it's an isolated error.

And they will, of course, have a right to decide whether or not this is the only such error, whether there are other clerical errors, how often they occur, what the -- is that an administrable rule?

Mr. Dreeben: --I think it's highly administrable.

It doesn't create that many problems.

This exclusionary rule hearing is an illustration.

The warrant clerk for Dale County was on the witness stand.

The warrant clerk for Coffee County was on the witness stand.

The arresting officer was on the witness stand.

All of those people were asked, do these errors occur with frequency?

They said: They don't; our system is reliable.

Justice Kennedy: And if there were pervasive deficiencies, I assume that's exactly what we would inquire about under 1983?

Mr. Dreeben: That's correct, Justice Kennedy.

Justice Kennedy: And would you add 1983 as number four to your list?

Mr. Dreeben: Yes, I would add number -- I would add 1983 possible liability as an additional incentive, just as it was remarked in Hudson that it provides for additional incentive for--

Justice Breyer: One other question.

Suppose that the error here consisted not of a computer, but rather Joe, who is the policeman, has a partner called Sam, and Sam told Joe that this is Harry Smith, when negligently it wasn't Harry Smith?

It was Joe Smith.

Mr. Dreeben: --Well, I think--

Justice Breyer: Well, I mean does that count as a clerical error if, in fact, it's the man's partner who tells him this negligently?

Mr. Dreeben: --I'm with Miss Karlan on this one.

I don't think that's a Fourth Amendment violation at all.

I think under Hill v. California--

Justice Breyer: Negligent.

It's Negligent police work.

Mr. Dreeben: --Yes.

It's a mistake.

Justice Breyer: That's negligent error.

You mean we don't suppress the negligent errors of the partners who, after all, say, let's arrest this man over here, and through negligence they have got the wrong man?

We don't suppress?

Mr. Dreeben: I think that that's a very close case, and I don't think that this Court--

Justice Breyer: There must be millions -- not millions, but there must have been cases where two policemen or one policeman goes off to arrest someone and negligently arrests the wrong man.

And when he does that and does a search, we don't suppress.

Mr. Dreeben: --What we know about that from this Court's cases is that if one police officer has a warrant and it's, he obtained it based on an affidavit, that's purely a bare-bones--

Justice Breyer: That's Leon.

I'm not thinking that.

Mr. Dreeben: --No, it's actually not Leon.

It's Whiteley versus Warden.

And I'm positing a warrant that was completely based on a bare-bones affidavit.

So it would not pass the Leon test.

Justice Breyer: I'm not thinking of a warrant.

I'm thinking of a policeman who has a warrant for Jack Smith and he goes to arrest Jack Brown because through negligence he went to the wrong house.

Now, under those circumstances would we suppress the drugs that happen to be found in Jack's house.

Mr. Dreeben: I don't think it's so clear from this Court's cases.

Justice Breyer: Well, there must have been a lot of cases.

Mr. Dreeben: Well, not in this Court.

Justice Breyer: But what about the lower courts?

What have they done?

Mr. Dreeben: I'm not so aware that there are so many of them in the lower courts where it's negligence.

Most often the kind of mistakes that's made, the courts say it's within the realm of probable cause if it's a reasonable mistake.

If it's an unreasonable mistake, negligent mistake, I would be prepared to say that the lower courts are probably today suppressing.

And this Court doesn't have to decide whether that's correct in order to decide this case.

This case--

Justice Kennedy: Do we use the word or the phrase "good faith" in writing the opinion if we write it your way?

Mr. Dreeben: --I don't think the Court needs to use the word "good faith".

The Court used the words "good faith" in Leon.

It's repeated it in all of its so-called good faith exclusionary rule exceptions.

We're talking about an objective rule, and the line that I think that the Court should draw today is between isolated negligent errors and errors that result from a more systematic or widespread pattern, the kind that Justice O'Connor referred to in her concurrence in Arizona v. Evans.

Justice Scalia: You would allow all of that inquiry every time there's a motion to exclude.

That would not just be the basis for 1983.

You still want negligence inquiry.

Mr. Dreeben: I don't want it.

I'm saying that the Court doesn't have to reach the issue today of whether a widespread pattern of errors or complete neglect--

Justice Scalia: Thank you.

That's a little different.

Mr. Dreeben: --Yes.

That's not to say--

Justice Souter: What about reaching -- what about reaching your standard in cases in which the arrest is wrong, not because there's no warrant, but because there's just slightly less than probable cause?

If there are isolated incidents of that are we going to -- are we going to say that in fact that does not violate the Fourth Amendment?

Mr. Dreeben: --I think that's a very different -- well, whether it violates the Fourth Amendment or not would turn on whether there is in fact probable cause.

If there is no probable cause, and I understood your question, Justice Souter--

Justice Souter: No.

We're starting with the assumption that there is a violation of the -- I think we're starting with background law at this point that there is a violation of the Fourth Amendment if there is an arrest without probable cause or without a valid warrant.

Mr. Dreeben: --Yes.

Justice Souter: The warrant itself may be subject to attack, but at least that's sort of the front line of our objective reasonableness inquiry.

And you're making a dent in the warrant requirement for isolated incidents, and I don't see why we can't or why coherence would not require us to make the same dent in the probable cause requirement for equally isolated mistakes.

Mr. Dreeben: I think it's simply a different inquiry, Justice Souter, because, as I tried to explain, in this area the Court can note a number of incentives that law enforcement has to keep its warrant databases accurate and up to speed.

Justice Stevens: Mr. Dreeben, can I ask a background question?

How frequent does the issue in this case arise?

Mr. Dreeben: In my experience, Justice Stevens, not that frequently.

Justice Stevens: That's my understanding, too.

Mr. Dreeben: And I think--

Justice Stevens: It seems to me the case may have more symbolic importance than practical importance.

Mr. Dreeben: --Well, I think that the practical importance of it and the legal importance of it is what, kind of a balance is the Court going to strike under the exclusionary rule.

We heard a lot from Petitioner today about how the exclusionary rule would help make police engage in better practices.

We heard nothing about the costs of the exclusionary rule.

Compared to, for example, to--

Justice Stevens: Are there any cases where -- this is a drug peddler here that was caught.

Are there any cases involving violent criminals that have been affected by the outcome of this case?

Mr. Dreeben: --Some in the lower courts have involved violent crime, and I think this case would look and feel very different if evidence of a murder had been discovered in the car.

And that just accentuates the point that the exclusionary rule comes with a price to society.

It's not free.

Justice Scalia: Mr. Dreeben, if we adopt your formulation that isolated negligence doesn't count, is it clear that that's all there was in this case?

Mr. Dreeben: Well, that's all that the district court found.

The district court had evidence and made a finding that there was no pattern of violations like this, that the system of recordkeeping was generally reliable.

This is the findings of the district court that are on page 17a and 18a of the Petitioner appendix.

The district court concluded:

"There is no credible evidence of routine problems with disposing of recalled warrants and the warrant clerk herself could not recall other instances like this. "

Justice Souter: Well, if Miss Karlan's figures are correct in Alabama there would be suppression.

Mr. Dreeben: Well, there was no record made whatsoever on what Alabama's overall--

Justice Souter: No.

I said if her figures are correct and there's a 13 percent error rate either in the State of Alabama or at least in the department involved that we'd have suppression there.

Mr. Dreeben: --Unless -- if the Court is prepared to say that the exclusionary rule is going to function differently on a State by State basis depending on the statewide error rate, which I think is an unusual thing for the Court to do--

Justice Souter: Well, it's going to function -- even on your theory, it's going to function differently on a department to department basis depending on the error rate.

Mr. Dreeben: --Upon a -- Not just upon a showing of an error rate, but upon a showing that a particular recordkeeping system that produced an error was conducted in a manner so that you could say much more than negligence was involved here.

Justice Souter: Well, if you've got a 13 percent error rate I think you've got a pretty good prima facie case.

Mr. Dreeben: You do.

I would concede you have a good prima facie case.

I would want to know more to know what that really means because with a lot of these statistics--

Justice Souter: But the fact is unless the 13 percent error rate in a negligence-free system, you would have suppression there and you would not have suppression there in the town next door or the county next door or the State next door.

Mr. Dreeben: --If the Court adopts a rule that says that a showing of more than isolated negligence would justify suppression, you're correct.

I would note, though, that--

Justice Souter: But I thought that basically was the distinction that you were arguing for.

Mr. Dreeben: --No.

I think I clarified to Justice Scalia that I think all the Court needs to decide today is that an isolated negligent error in police recordkeeping should not result in suppression.

It should not hold today because it's not confronted with today--

Justice Souter: But I take it if you're not accepting -- if you're not accepting -- I mean, you're not accepting the proposition that the 13 percent error rate which is not somehow shown to be non-negligent should have a different result, you are saying in the 13 percent case we're still not going to suppress.

Mr. Dreeben: --I would reserve the right to argue that the exclusionary rule's costs outweigh its benefits even if that is shown in a particular case because there are a myriad of other reasons why the police would have an incentive to improve that.

Justice Souter: But if you -- if you were to make that argument and it came down to that bald a proposition, I assume you would come in with some kind of evidentiary basis to tell us exactly what the cost is.

And you have spoken of the cost today.

You have not spoken of the benefit and the value of having relatively error-free arrest recordkeeping.

But I haven't heard anything about the unreasonable cost of the exclusionary rule--

Mr. Dreeben: Well I think--

Justice Souter: --beyond the record.

Mr. Dreeben: --It's manifested in it every case in which reliable probative evidence is suppressed.

Justice Souter: Sure, sure it is.

But that does not even get us to, as it were, to half the equation.

We want to be know how much of that there is and we want to be able to measure against that the value that society is getting by requiring valid arrest warrants and in a probable cause case by requiring probable cause.

And you can't just walk in and say, well, there's a cost.

We know there's a cost.

Mr. Dreeben: I don't think, Justice Souter, that the Court has ever looked for an empirical count of how many cases.

Justice Souter: Don't you think we should if we are in effect -- if you are making what sounds to me like an empirical argument -- there is a cost to society, cases are being lost, criminals are going free -- don't you think that we ought to have a factual basis to know what that cost is?

Mr. Dreeben: If the Court wants one in order to justify the exclusionary rule, then it probably needs to go back to scratch and start all over again.

Justice Souter: We've done an exclusionary rule now and in effect you are arguing for an exception to it because the cost is too great, and it seems to me the burden is on you to tell us what the cost figure is.

Mr. Dreeben: I will say this, Justice Souter.

If the cost is very low because very few cases result in suppression, then deterrence is also very low because there are very few cases in which evidence is being suppressed.

Justice Souter: But if you take that argument to the extreme, we won't have an exclusionary rule at all, I suppose.

Mr. Dreeben: But my argument today does not require the Court to take that step at all because this is an area in which there is a local geography of incentives pertaining to the accuracy of warrants that allows the Court to conduct the balance in a way distinct from what it might do if it's confronted with police negligence or if it's confronted with a widespread pattern of negligence.

Justice Stevens: Of course, if you did the cost-benefit analysis the way Justice Stewart would, the cost is always zero to the State because they would not have had the evidence if they had obeyed the law.

Mr. Dreeben: Yes, but I think, Justice Stevens, that form of looking at the question has been rejected in this Court's cases that have recognized that the exclusionary rule has to pay its way because in every case in which it results in suppression there is a cost to society and the benefit therefore needs to be appreciable and this Court needs to be confident of that before it concludes that what the Court called the "massive remedy of exclusion" is applied in any particular case.

Chief Justice Roberts: We know what the cost was here, right?

I mean, not just a drug peddler, but somebody with an illegal weapon found in his car, a weapon that presumably he would use on an occasion in which it was in his view appropriate to do so.

Mr. Dreeben: Correct.

And this arrest itself could have turned into a volatile arrest so there was benefit in this very case and cost if the evidence is suppressed.

Justice Souter: But don't you take -- I understood you to take the position and I thought the Court had previously taken the position that the cost benefit analysis had to be a systemic one.

Mr. Dreeben: I think that that's correct, Justice Souter, but I'm not aware of any case in which the Court has said the exclusionary rule has costs and now we need to see the numbers of statistically how many cases result in suppression.

I'm just not aware of any case in which the Court has done that.

Justice Souter: No, I think that's -- I think that's true.

I mean, we operate -- quite think frankly we operate on the basis of a -- of a good guess and I think your argument is saying let's have -- let's have an exception to the good guess.

And if -- if you start with a good guess as the baseline it seems to me you -- you ought to have something more than another guess to justify the exception.

Mr. Dreeben: Well, Justice Souter what my case comes down to today I believe is the proposition that when we are talking about clerical errors made by the police, there are ample incentives for the police not to make those clerical errors that I've described earlier, such that the incremental benefit of the exclusionary rule which we know has a cost; it has a tangible cost in every case in which it's applied; does not pay its own way.

In other words, there is not sufficient incremental deterrence to warrant taking an isolated negligent error in a generally reliable system and saying we need to suppress evidence anyway; and Petitioner's argument goes farther than the isolated negligent error case.

It says even if the police have driven the error rate down as low as it's humanly possible by committing mass amounts of are resources to warrant database systems in order to avoid suppression, which is what the Petitioner's theory posits, you should still suppress; and that seems to me nothing other than the return to the theory when there is a Fourth Amendment violation, suppression automatically follows; and this Court--

Justice Ginsburg: But that's not what we have here, and we have a 13 percent error rate.

If this case goes your way, the police have limited resources; why should they spend them on upgrading their computer system when if there is an error it won't matter?

Mr. Dreeben: --Well, it does matter, Justice Ginsburg, because the police officers that I'm familiar with and the agencies that I'm familiar with as exemplified by the NCIC which is the national database, says that the last thing that we want to do is send officers mistakenly out on a felony arrest where they are going to be placed in a potentially dangerous situation spending community police resources to arrest somebody who should not be arrested.

This is not what they want to do.

They have a good reason to avoid being placed in that situation and I would caution the Court against relying on a 13 percent figure in a study that's submitted in a brief to this Court for the first time without any kind of adversarial testing.

That is not I this think a reliable basis for the Court to infer that this particular police department had that kind of an error rate or that the exclusionary rule is necessary to prevent it from having that kind of an error rate or even that there were no procedures in place to prevent errors and warrants from remaining in the system.

The record simply doesn't show that.

The warrant clerks were on the stand and neither party asked them the question so this Court doesn't have the information to say today was there a system that would have ferreted this out.

We know that if there was it failed in this case.

Justice Kennedy: In Hudson versus Michigan, didn't the Court engage in a very broad balancing of the social costs and the potential for increase in violations in saying that there was no necessity for the suppression rule in the no-knock case?

Mr. Dreeben: Yes, Justice Kennedy; the Court did just that and it began with the outset that the massive remedy of suppression of evidence is a high social cost that should not be borne by society, not just the police, by all of us, unless appreciable deterrence will result as a benefit; and the Court then examined the incentives that the police had not to make illegal no-knock entries and to add that whatever incremental benefit there might be from exclusion was not justified in light of the possibility of 198e liability and the increased professionalism of the police which has made it less necessary to make the exclusionary rule a remedy of first resort rather than last resort.

While this Court could conceptualize the case as one in which the government is looking for an exception to the exclusionary rule, I think it's more accurately one where the Court should extend the exclusionary rule to cover negligent police clerical errors.

For the first time, at this day and age when 1983 recoveries have become effective--

Justice Ginsburg: How many 1983 recoveries have there been when someone says the police, they convicted me on the basis of this evidence that wasn't suppressed, but they committed a Fourth Amendment violation so I should prevail in the 1983 action?

How many defendants in that situation have ever won a 1983 action?

Mr. Dreeben: --No one knows, Justice Ginsburg, because a great many of these cases will settle out of court, but our brief does provide examples of conduct that was more serious and more egregious than anything involved in this case resulting in situations where courts denied summary judgments to the defendants and ordered the cases to go to trial.

And I'm not suggesting that in a case like this -- may I complete the answer -- there should be a 1983 remedy, but I am suggesting that civil remedies will provide incentives to the police to avoid the bog of litigation by putting into place systems that will prevent this kind of error.

Chief Justice Roberts: Thank you, Mr. Dreeben.

Miss Karlan, you have eight minutes remaining.

REBUTTAL ARGUMENT OF PAMELA S. KARLAN ON BEHALF OF THE PETITIONER

Justice Breyer: Can I use 30 seconds of your eight minutes because I want some clarity on this.

Ms Karlan: Absolutely.

Justice Breyer: Divide in your mind two separate things: The nature of the bad conduct: is it negligent, reckless, deliberate; and the other question is who engaged in it -- a police department official or some other official?

I thought this case was about the second question, but now I'm confused about the first question because I suppose a policeman, an arresting officer makes a negligent error.

He goes to the wrong house.

And he never looks at the number; and he arrests, starts to arrest the wrong person: Is the evidence suppressed?

If the evidence isn't suppressed, frankly, I don't see why a clerical official should be held to a higher standard; but if the evidence is suppressed then quite possibly the clerical official should be held to the same standard.

So you've heard the government say well, the answer isn't clear; very often a negligent official -- a negligent officer would not have that evidence suppressed.

Well, what is it?

Ms Karlan: The answer to your question, Justice Breyer, is if the police officer in your hypothetical was negligent the evidence would be suppressed.

There are cases where the mistake of the officer was a reasonable mistake, that is.

He did not--

Justice Breyer: He was not.

Ms Karlan: --Then he was not negligent.

Justice Breyer: I want to know if he is negligent.

Ms Karlan: If he is negligent--

Justice Breyer: Excuse me, because I think I'm getting a different view from the government.

Ms Karlan: --I'm absolutely certain that the answer is if he was negligent then there was not probable cause; if there was not probable cause and one of the other exceptions to the exclusionary rule does not apply, then the evidence will be suppressed.

Justice Kennedy: And the definition of negligence is that he was not objectively reasonable?

Ms Karlan: That's correct.

Justice Breyer: All right.

So we've got this--

Ms Karlan: And the rule we are asking for here -- the narrow rule for our Petitioner is when you have negligent error by police officials, you suppress but as Justice Scalia pointed out in my colloquy with him earlier, that rule is perhaps slightly less workable than a rule that says all error.

Now we have given you a workable rule here and we still have not heard I believe a workable rule from the government; because what Mr. Dreeben tells you is that under some circumstances there will be suppression.

And I just want to make up with factual correction here which is about the 13 percent.

It was a study by the FBI.

It's a very dated study because they haven't done a more recent one and it was statewide.

But let assume for purposes of argument here that if 13 percent of the errors in the file are there because the police are not maintaining their records properly, there ought to be suppression of a warrantless arrest based on that because otherwise you're really telling the department that "good enough for government work" is, you know, one out of six warrants is invalid, one out of seven warrants is invalid, but that's okay.

So then what you would have to have in each case is a hearing, and at the hearing we would be entitled to discovery--

Justice Kennedy: But in that -- but in that hypothetical I think it might be easy to say that the policeman on the beat was not objectively reasonable in relying.

Ms Karlan: --But Justice Kennedy--

Justice Kennedy: But that's certainly not the case here.

Ms Karlan: --But Justice Kennedy, if you believe in the government's rule we should have a right to audit that system to show that 13 percent of the warrants--

Justice Scalia: I agree with that.

If -- to say with Mr. Dreeben that we don't have to decide that today is just unrealistic.

We have to decide today whether we are going to adopt a rule that down the road will turn every exclusionary request into a pretrial investigation of the procedures of the police.

Ms Karlan: --Yes.

That's--

Justice Scalia: And a major -- major trial.

Chief Justice Roberts: Not the procedures of the police.

The officer is on the stand and you say, all right, you've been here a while, how many times have these warrants turned out to be wrong, just as simple as it was in this case?

And he says, gosh, this is the first time that I've had this question.

Ms Karlan: --But one of the things we know from the oral argument and the transcript in Evans is that clerk said this is the first time there has ever been an error, and it turned out there were four errors them made the same day.

Chief Justice Roberts: Okay.

Cross-examine people.

These people are under oath, you cross-examine.

You say, I don't think that's right.

How many times?

It's not that big a deal to find out on what basis the arresting officer was acting.

Ms Karlan: Right.

But we would be entitled I think, Mr. Chief Justice, to say to the clerk on the stand, have you ever conducted an audit?

She says, no, but our system is reliable.

At that point I think we are entitled to an audit.

That is we are entitled to hire an expert at government expense to figure out how many times this department has gotten it wrong.

Justice Alito: Isn't your rule also going to require hearings.

If negligence is required--

Ms Karlan: The hearing in this case--

Justice Alito: --you are going to have to have a hearing on whether there was negligence.

And if so, who was negligent.

If only causation is required, you're going to have to have a hearing on who caused it.

Ms Karlan: --Justice Alito, we had a hearing in this case that's adequate to the rule that we have and it took approximately two hours.

Justice Alito: And will that be the case in every instance?

Ms Karlan: It will be the case more often then that you'll have a two-hour hearing that you have to show isolated--

Justice Alito: How do you know that?

What basis do you have for saying that?

How do you know that?

How many of these hearings have you examined?

Ms Karlan: --Hearings in which there was no warrant?

I have examined none, but I can't imagine that it would take more than two hours.

In this case it took two hours.

All you have to do is figure out who said there was a warrant when there wasn't one.

Was it a court employee under Evans?

The answer is then clear.

You let the evidence in.

Was it not the court, that is, everybody concedes that the court called, everybody concedes the warrant was removed, everybody concedes that the warrant went back?

Then you answer it that way.

Justice Kennedy: Suppose it were an agency like INS or Customs in which they have many people that are not sworn officers or some that are, does it make a difference who answered the phone?

Ms Karlan: I don't think the sworn officer distinction makes a difference.

I think the agency does.

If I can refer to the State cases here, I think they can illustrate how to answer your question more precisely, Justice Kennedy.

That is, a number of States suppress evidence under these circumstances, and they ask what's a question of law that then applies to all future cases, which is, is this agency an adjunct of law enforcement or is it something else?

So, for example, in California, the Department of Corrections, not.

They are not an adjunct.

So errors by the Department of Corrections, evidence is admitted.

The State of Florida, the Department of Motor Vehicles is an adjunct.

So there if the Department of Motor Vehicles makes the mistake, there is suppression.

This rule has been--

Justice Kennedy: In Rand we said this is exactly the inquiry we are not going to make.

Ms Karlan: --I'm not sure.

Justice Kennedy: Rand was where we had a traffic stop made by a narcotics officer.

And the question was, well, he was going outside his jurisdiction.

We said we are not going to get into the way police departments are organized.

We are just not going to do it.

Ms Karlan: That's correct.

Justice Kennedy: That's Rand.

Ms Karlan: No.

I understand Rand perfectly well, Justice Kennedy.

But the question here is not a Rand case.

It's what counts as the police?

And that's the only question we are asking you to answer here, is what counts as the police?

Everyone who works for the police department.

When they make an negligent error, that's enough.

Now, let me turn for just a moment to the question of the bloated records and their incentives.

Justice Scalia: That's your bottom line position, it has to be a negligent error?

Ms Karlan: In this case, yes.

Yes.

I'm perfectly happy--

Justice Scalia: What is the position you're arguing for?

Ms Karlan: --We are arguing for negligent--

Justice Scalia: You want to adopt a rule that's only when it's a negligent error?

Ms Karlan: --We are arguing for that rule but wanted you to understand that there is a tradeoff as you identified earlier.

Our rule is, I think, a clean, narrow rule.

It may require, as Justice Alito has pointed out, slightly more detailed hearings.

Let me turn now to this question of the incentives, which is the incentives of departments, as illustrated in this case, are to leave the question of maintaining records to the end of the line in spending their resources, because they are not going to have to serve these warrants.

These warrants serve as an opportunity to stop and arrest someone they otherwise wouldn't be able to stop and arrest here, because they like probable cause.

All they had to do to cite -- Justice Kennedy, to cite Rand to you is if they wanted to follow him for a while, I'm sure they could have found a motor vehicle violation at some point.

But they didn't even want to do that.

They just wanted to use this warrant--

Chief Justice Roberts: So that's assuming bad faith on the part of the police.

Ms Karlan: --No, it's good faith.

Chief Justice Roberts: They want to arrest him, so they follow him until they find a motor vehicle violation.

Ms Karlan: This Court has said it's absolutely fine and it's not bad faith.

Chief Justice Roberts: But you're suggesting it's bad faith--

Ms Karlan: No, I'm not suggesting that.

Chief Justice Roberts: --because they -- because they don't want to have to worry about getting a warrant that might be wrong?

Ms Karlan: No, no.

That's not what I said, Mr. Chief Justice.

May I please--

Chief Justice Roberts: What was the point of -- well, sure, as long as I'm asking the questions, you can answer.

[Laughter]

What was your point then?

You're saying, well, they want to get this guy and they don't have to go through the warrant or anything else.

They can follow him, find the broken taillight and then they would have gotten that guy.

I thought that was the point you were trying to make?

Ms Karlan: --No.

The point I was -- the point I was trying to make is that there are other techniques here if you haven't as yet inarticulable suspicion that somebody is a bad guy that you can use that to comply with the Constitution.

What you can't do is rely on a warrant that doesn't exist, and then turn around and say police error, but we are entitled to rely on our own error.

Justice Scalia: May I ask one question, Chief.

Chief Justice Roberts: Sure.

Justice Scalia: Your -- your comment seems to assume that these warrants just lie there and the police only use them incidentally.

I have always assumed that when a warrant is out, part of the job of the police is to -- is to arrest the person.

Isn't that the case?

Ms Karlan: Well, there are really two very different kinds of warrants out there, Justice Scalia, as I understand it.

One is warrants the police go and try and find themselves, and then they are trying to serve those aggressively.

But there are a lot of warrants like this one that sat in a file for five months, nobody tried to serve it during the vast majority of that time because a lot of these warrants, as is true in this case, are for failure to answer a calendar call or for not paying a parking fine on time or for not sending in your fine on a motor vehicle.

In the Ott case that we cite it was failure to pay child support.

So those are not the kinds of things where the police are serving the warrants aggressively.

Chief Justice Roberts: Thank you Miss Karlan, the case is submitted.