The central thesis of this essay is that, consistent with the “art of overruling,” the Court could have limited Mapp, for example, by extending the good-faith reasonable mistake rationale that animates cases like United States v. Leon. As developed below, the facts of Herring are quite similar to the facts of other cases where the Court upheld police conduct that, although erroneous, seemed reasonable; accordingly, excluding the illegally obtained evidence had no value as a deterrent of future conduct in light of the reasonableness of the police officer's mistake. However, Herring goes much further and points towards a much greater tolerance towards police misconduct because it allows the use of illegally seized evidence, unless it was the product of at least reckless conduct on the part of the police. If the Court, in fact, follows Herring's logic and extends that rule to all searches, the Court will have adopted a rule without precedential support. Instead, the Court will be imposing the rule with no authority other than its own ipse dixit.
The first part of this essay reviews Herring. Thereafter, it explores in more depth Professor Israel's analysis and applies it first to Mapp to demonstrate how the Court has, in fact, honored this convention, and then demonstrates how this Court could, were it inclined towards restraint, justify cutting back on Mapp. Finally, this essay demonstrates how radical Herring's analysis really is.
10 Nev. L.J. 164 (2010)
"Herring v. United States: Mapp's "Artless" Overruling?,"
Nevada Law Journal:
1, Article 6.
Available at: http://scholars.law.unlv.edu/nlj/vol10/iss1/6