On January 14, 2009, the United States Supreme Court decided Herring v. United States. In Herring, the defendant moved to suppress evidence that he alleged was seized as a result of an arrest that violated the Fourth and Fourteenth Amendments to the U.S. Constitution. The Supreme Court approved the decision below to deny suppression of the evidence. The decision set off a flurry of speculation that the Fourth Amendment exclusionary rule would not see its 100th birthday in 2014. A headline in the New York Times of January 31 declared: “Supreme Court Edging Closer to Repeal of Evidence Ruling.” Another headline in the Times, this one on February 16, asked: “Is the Supreme Court About to Kill off the Exclusionary Rule?” A headline in the April ABA Journal announced that the exclusionary rule was “closer to repeal.” I think that the rumors of the death of the exclusionary rule are exaggerated. Herring represents another chapter in a long struggle that the Supreme Court has had with itself to define what sort of fault or culpability on the part of law enforcement officers should lead to suppression. The relationship between officer culpability and deterrence is subject to considerable uncertainty. The general idea is that the officer's conduct must be sufficiently culpable to be optimally deterrable. Herring emphasizes that deterrence “varies with the culpability of the law enforcement conduct.” But if the officer's conduct is only marginally culpable, perhaps it is not a constitutional violation in the first place.

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