                                                                                        03/12/2019
                 IN THE SUPREME COURT OF TENNESSEE
                             AT JACKSON
                                 April 4, 2018 Session

       STATE OF TENNESSEE v. JEROME ANTONIO MCELRATH

             Appeal by Permission from the Court of Criminal Appeals
                         Circuit Court for Obion County
             No. CC-15-CR-71;72      Jeff Parham, Circuit Court Judge
                     ___________________________________

                            No. W2015-01794-SC-R11-CD
                            No. W2015-01958-SC-R11-CD
                              (consolidated on appeal)

                       ___________________________________


We granted the State’s permission to appeal in this case to determine whether to adopt, as
a matter of state law, the good-faith exception to the exclusionary rule set forth by the
United States Supreme Court in Herring v. United States, 555 U.S. 135 (2009), and if so,
whether the Herring good-faith exception permits introduction of the evidence in this
case. A Union City police officer arrested the defendant without a warrant because he
was on a list of individuals who had been “barred” from housing authority property. The
list in question was maintained by the Union City Police Department. Upon performing a
search incident to arrest, the officer seized marijuana from the defendant. Nineteen days
later, the same officer arrested the defendant on the same property based on the same list
and again seized marijuana from the defendant. It was later discovered that the list was
incorrect and that the defendant’s name should have been removed prior to the date of his
arrests. The trial court suppressed the evidence in both cases, and the Court of Criminal
Appeals affirmed. The trial court and the Court of Criminal Appeals based their
decisions on Tennessee’s not having yet adopted Herring’s good-faith exception. Upon
discretionary review, we adopt the good-faith exception as set forth by Herring but
conclude that neither of the defendant’s arrests falls within the good-faith exception.
Accordingly, the judgment of the Court of Criminal Appeals is affirmed.

   Tenn. R. App. P. 11 Appeal by Permission; Judgment of the Court of Criminal
                                Appeals Affirmed.
ROGER A. PAGE, J., delivered the opinion of the court, in which JEFFREY S. BIVINS, C.J.,
and CORNELIA A. CLARK, JJ., joined. SHARON G. LEE, J., filed a separate opinion
concurring in part and dissenting in part. HOLLY KIRBY, J., filed a separate opinion
concurring in part and dissenting in part.

Herbert H. Slatery III, Attorney General and Reporter; Andrée Sophia Blumstein,
Solicitor General; Andrew C. Coulam, Assistant Attorney General; Tommy A. Thomas,
District Attorney General; and James T. Cannon, Assistant District Attorney General.

James T. Powell, Union City, Tennessee, for the appellee, Jerome Antonio McElrath.

                                         OPINION

       As a result of the defendant’s arrests as described in detail infra, the defendant was
charged by separate indictments with simple possession of marijuana, a Class A
misdemeanor, in the first count of each indictment and with simple possession of
marijuana for the fourth time, a Class E felony, in the second count of each indictment
because the defendant had been convicted of simple possession on January 16, 2015;
October 7, 2004; and April 19, 2001. See Tenn. Code Ann. § 39-17-418(e) (2014) (“A
violation under this section is a Class E felony where the person has two (2) or more prior
convictions under this section . . . .”).1 The defendant filed motions to suppress the
evidence in both cases, which were consolidated prior to trial. The following facts were
adduced at the hearing on the motion to suppress.

                                          I. Facts

      On April 8, 2015, Union City Police Officer Chris Cummings was patrolling an
area of Union City and passed the Union City Housing Authority property. Officer
Cummings observed the defendant standing outside of the community center. Acting
upon his belief that the defendant was barred from the housing authority property, Officer
Cummings radioed dispatch to check the “barred” list. The dispatcher advised Officer
Cummings that the defendant was, indeed, on the “barred” list. Officer Cummings called

       1
         The offense dates in this case occurred in 2015; at that time, the 2014 version of the
Tennessee Code made simple possession of marijuana, third or subsequent conviction, a
Class E felony. Tenn. Code Ann. § 39-17-418(e) (2014). However, the 2016 amendment
changed this enhancement to require two (2) or more prior convictions under this section
and the presence of a Schedule I controlled substance classified as heroin in the current
violation. Tenn. Code Ann. § 39-17-418(e) (Supp. 2016).
                                             -2-
for another unit to assist, then drove back to the housing authority property. The
defendant and another individual walked inside the community center as Officer
Cummings approached in his vehicle. As Officer Cummings began to follow the
defendant, the defendant “took off” through the building toward the rear of the structure,
where Officer Cummings stopped the defendant and asked him to accompany Officer
Cummings outside. Officer Cummings then placed the defendant under arrest for
criminal trespass and performed a search incident to arrest. The search yielded
approximately ten grams of marijuana from the defendant’s pocket.

        On April 27, 2015, Officer Cummings was again patrolling the area that
encompassed the Union City Housing Authority property when he observed an apparent
altercation on the property. He approached to break up the fight and observed several
people present, including the defendant. Officer Cummings warned the defendant that he
was barred from the property and that he should leave the property or be escorted to jail.
The defendant continued to make disparaging comments toward Officer Cummings,
which prompted him to arrest the defendant for criminal trespass a second time. During
this incident, the defendant was uncooperative and did not cease his combative behavior
until Officer Cummings threatened to use a taser. Officer Cummings required the
assistance of additional officers to be able to perform a search of the defendant, which
yielded approximately four grams of marijuana.

        Union City Police Department Lieutenant Melvin Dowell was responsible for
maintaining a list of people barred from housing authority properties and kept a copy of
the list in the dispatch office. When an individual is barred from a housing authority
property, Lieutenant Dowell sends the individual a criminal trespass letter containing all
of the relevant information about the barring. Being barred is not permanent; when an
individual completes the application to request to be removed from the list and all of the
necessary parties have approved the request, Lieutenant Dowell notifies the individual
that his name has been removed from the list, and he then gives a copy of the notice to
the office secretary to have the person removed from the barred list. Officers call in for
information when they have a question about the list.

       Officer Cummings brought with him to the suppression hearing two printouts of
the “barred” list. The first list was printed on March 23, 2015, and the second list was
printed on May 11, 2015, subsequent to the defendant’s arrests. The March list indicated
that the defendant was barred from the Union City Housing Authority property on
October 19, 2007, because of illegal drug offenses. The May list also named the
defendant as being barred from the property.

                                          -3-
        Following a third incident that is not subject to this appeal, Officer Cummings
learned that the defendant had actually been removed from the barred list prior to the two
offenses involved in this case. The defendant had apparently completed the requisite
procedure to be removed from the list, and his request had been approved and was
effective as of August 16, 2010. The defendant’s name appeared on an April 11, 2014
list of people who had been removed from the barred list, but his name also remained on
the actual list of barred people. Essentially, a clerical error had occurred. As a result of
the arrests in these two instances, the defendant was re-barred on May 15, 2015.

      At the conclusion of the suppression hearing, the trial court granted the
defendant’s motion to suppress, stating:

              This matter is here on a motion to suppress a warrantless arrest of
       the defendant. Therefore, the burden is on the state to prove that . . . it is an
       exception to the warrant requirement.

              I think we’re clear here that the question now is do we want to have
       a good-faith exception to that requirement in order to get around the
       exclusionary rule.

              The Court finds that, as I had earlier asked, but for the mistaken
       inclusion of the defendant, Mr. McElrath, on the barred list, he would not
       have been arrested. The Court finds that Officer Cummings testified that
       on April 8th, he saw the defendant standing outside the housing authority’s
       location; he thought that the defendant was on the barred list. I believe he
       even testified that he keeps a copy of the barred list. So he called dispatch
       to verify, and dispatch showed that he was on the barred list. I think it’s
       pretty much stipulated to, and if one looks through the documents that that
       was a mistake. I’m not a hundred percent sure whose mistake it was.
       [Lieutenant] Dowell testified that he maintains the list and that Mr.
       McElrath had been barred in 2007 but had requested in 2010 to be
       removed, and that there is a form to be filled out to be removed from the
       criminal trespass list, which Mr. McElrath did fill out and was approved by
       the chief of police for the Union City Police Department, Ms. Burden for
       the housing authority and a manager from East Gate Village. So it was
       approved that he be removed from the barred list. And that’s also reflected
       in Exhibit 4 that shows the revised list dated 4/11/14 that he should have
       been removed – 4/11/14 – but for whatever reason, the dispatcher or
       whoever gets the running list didn’t remove it; although we do have Ms.
                                             -4-
       Burden testifying that somehow the defendant ended up on both lists. He
       was on the . . . unbarred list and the barred list.

              So but for the dispatcher picking up the barred list, she could have
       easily – he or she easily could have picked up the unbarred list, I guess, in
       light of the fact that they keep two lists. I don’t know why you would keep
       two lists. One would think that you would only go with the barred list and
       not have an unbarred list. You’re either on the barred list or you’re not on
       the barred list.

               The [S]tate has moved the Court to find that Officer Cummings had
       a good-faith exception here and that he did nothing wrong, and I find that
       Officer Cummings didn’t do anything wrong. However, so far, the
       Supreme Court case[s] in Tennessee and the criminal court case[s] in
       Tennessee hold that we don’t have a good-faith exception to the
       exclusionary rule. It’s my understanding of the law that we can be more
       restrictive than the federal government in the exclusionary rule. If this were
       a federal case in U.S. Federal Court, I don’t think there’d be any doubt that
       the officer would have been entitled to bring this evidence up and to keep
       Mr. McElrath in court. However, I’m not inclined to make that decision
       based upon the cases that have been cited and the holdings that are
       currently in place in the state of Tennessee. Right now, we don’t have a
       good-faith exception, and, therefore, I am going to suppress the evidence.

       The State appealed the trial court’s decisions to the Court of Criminal Appeals,
which affirmed suppression of the evidence. State v. McElrath, W2015-01794-CCA-R3-
CD, 2017 WL 2361960 (Tenn. Crim. App. May 31, 2017), perm. app. granted (Tenn.
Oct. 5, 2017). We granted permission to appeal in this case to determine whether, as a
matter of state law, Tennessee should adopt the good-faith exception set forth by the
United States Supreme Court in Herring, and if so, whether Herring would apply under
these facts to permit introduction of evidence that was seized as a result of a law
enforcement officer’s reasonable reliance on incorrect information in a database
maintained by the same police department.

                                 II. Standard of Review

      The facts in this matter are not in dispute. Rather, our review is limited to whether
the Court of Criminal Appeals properly declined to apply the good-faith exception
espoused in Herring v. United States, 555 U.S. 135 (2009). We review this question of
                                           -5-
law de novo, with no presumption of correctness. State v. Hawkins, 519 S.W.3d 1, 32-
33 (Tenn. 2017) (citing State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001)); State v. Turner,
297 S.W.3d 155, 160 (Tenn. 2009) (citations omitted).

                                      III. Analysis

                               A. The Fourth Amendment

       The Fourth Amendment to the United States Constitution guarantees that “‘[t]he
right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but
upon probable cause . . . .’” State v. Christensen, 517 S.W.3d 60, 68 (Tenn. 2017)
(quoting U.S. Const. amend. IV); State v. McCormick, 494 S.W.3d 673, 678 (Tenn.
2016). Determining whether a particular search is “unreasonable” and therefore a
violation of the rights guaranteed by the Fourth Amendment “‘depends upon all of the
circumstances surrounding the search . . . and the nature of the search . . . itself.’”
Turner, 297 S.W.3d at 160 (quoting United States v. Montoya de Hernandez, 473 U.S.
531, 537 (1985)).

       Similarly, article I, section 7 of the Tennessee Constitution provides that “‘the
people shall be secure in their persons, houses, papers and possessions, from
unreasonable searches and seizures.’” Christensen, 517 S.W.3d at 68 (quoting Tenn.
Const. art. I, § 7). This Court has opined that the search and seizure provision in the
Tennessee Constitution is “‘identical in intent and purpose with the Fourth
Amendment.’” Id. at 68 (quoting Sneed v. State, 221 Tenn. 6, 423 S.W.2d 857, 860
(1968)). Searches and seizures conducted pursuant to valid warrants are presumptively
reasonable. McCormick, 494 S.W.3d at 678-79 (citing State v. Scarborough, 201 S.W.3d
607, 616-17 (Tenn. 2006)). Conversely, warrantless searches and seizures are
presumptively unreasonable, and any evidence that is discovered as a result thereof is
subject to suppression. Turner, 297 S.W.3d at 160 (citing Coolidge v. New Hampshire,
403 U.S. 443, 454-55 (1971); State v. Bridges, 963 S.W.2d 487, 490 (Tenn. 1997));
McCormick, 494 S.W.3d at 678-79 (citing Kentucky v. King, 563 U.S. 452, 459 (2011);
State v. Bell, 429 S.W.3d 524, 529 (Tenn. 2014)). The general rule governing
presumptively unreasonable warrantless searches and seizures “is subject to ‘a few
specifically established and well-delineated exceptions[,] jealously and carefully drawn.’”
Turner, 297 S.W.3d at 160 (quoting Coolidge, 403 U.S. at 455).

       “These exceptions include searches and seizures conducted incident to a
       lawful arrest, those yielding contraband in plain view, those in the hot
                                           -6-
       pursuit of a fleeing criminal, those limited to a stop and frisk based on
       reasonable suspicion of criminal activity, those based on probable cause in
       the presence of exigent circumstances, and those based on consent.”

Id. (quoting State v. Day, 263 S.W.3d 891, 901 n.9 (Tenn. 2008)) (internal quotation
marks omitted). The State carries the burden of proving that a warrantless search was
constitutionally permissible. State v. Ingram, 331 S.W.3d 746, 755 (Tenn. 2011) (citing
State v. Nicholson, 188 S.W.3d 649, 656-57 (Tenn. 2006)); State v. Berrios, 235 S.W.3d
99, 105 (Tenn. 2007) (citing State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997)).

                                B. The Exclusionary Rule

        Despite its protections, the Fourth Amendment “‘contains no provision expressly
precluding the use of evidence obtained in violation of its commands,’ Arizona v. Evans,
514 U.S. 1, 10 [ ] (1995).” Herring, 555 U.S. at 139. The Herring Court noted that
common law “establish[es] an exclusionary rule that, when applicable, forbids the use of
improperly obtained evidence at trial.” Id.; Weeks v. United States, 232 U.S. 383, 398
(1914); State v. Reynolds, 504 S.W.3d 283, 314 (Tenn. 2016) (describing Tennessee’s
exclusionary rule as “a judicially crafted remedy”). The exclusionary rule was
“‘designed to safeguard Fourth Amendment rights generally through its deterrent
effect.’” Id. at 139-40 (quoting United States v. Calandra, 414 U.S. 338, 348 (1974)).

       The purpose of the exclusionary rule under the Fourth Amendment is to deter
police misconduct, id. at 141 (citation omitted), and “to prevent police from violating
suspects’ constitutional rights,” State v. Sanders, 452 S.W.3d 300, 311 (Tenn. 2014).
“‘[T]his Court has both the authority and the responsibility to decide whether [a] good-
faith exception [to the exclusionary rule], or any other exception, should be adopted’”
because the rule originated in this Court. State v. Lowe, 552 S.W.3d 842, 852 (Tenn.
2018) (quoting State v. Reynolds, 504 S.W.3d 283, 314 (Tenn. 2016); see also Herring,
555 U.S. at 139 (noting that the exclusionary rule is a “judicially created rule”).

                              C. The Good-Faith Exception

       In this case, the State urges this Court to adopt the good-faith exception set forth
by the United States Supreme Court in Herring. This Court has not previously had an
opportunity to consider whether to apply Herring in Tennessee, but the facts of this case
squarely present the question of whether it is prudent for us to do so at this time.


                                           -7-
                    1. Evolution of the Federal Good-Faith Exception

        The landmark decision establishing the federal good-faith exception was issued by
the United States Supreme Court in United States v. Leon, 468 U.S. 897, 913 (1984)
(stating that the Court had not yet recognized any form of good-faith exception to the
Fourth Amendment exclusionary rule but that its “evaluation of the costs and benefits of
suppressing reliable physical evidence seized by officers reasonably relying on a warrant
issued by a detached and neutral magistrate leads to the conclusion that such evidence
should be admissible in the prosecution’s case in chief”). In Leon, officers obtained a
search warrant based on information provided by an unproven confidential informant. Id.
at 901. A thorough investigation ensued, after which officers obtained a facially valid
search warrant for Leon’s residence as well as residences belonging to other defendants.
Id. at 901-02. Based on the evidence recovered, Leon was indicted for conspiracy to
possess and distribute cocaine and a variety of other criminal offenses. Id. at 902. The
defendants filed motions to suppress in the district court. Id. Although the trial court
found that the officer had acted in good faith, it nonetheless granted the motions. Id. at
903-04. The Ninth Circuit Court of Appeals agreed, concluding that the information in
the affidavit was stale and also failed to establish the informant’s reliability. Id.

       The United States Supreme Court granted the State’s petition for writ of certiorari.
The Leon Court noted that the exclusionary rule “operates as ‘a judicially created remedy
designed to safeguard Fourth Amendment rights generally through its deterrent effect. . .
.’” Id. at 906 (quoting Calandra, 414 U.S. at 348). In balancing the societal costs that
accompany imposition of the exclusionary rule, the Court opined that “the balancing
approach that has evolved in various contexts—including criminal trials—‘forcefully
suggest[s] that the exclusionary rule be more generally modified to permit the
introduction of evidence obtained in the reasonable good-faith belief that a search or
seizure was in accord with the Fourth Amendment.’” Id. at 909 (quoting Gates, 462 U.S.
at 255).

       The Court, emphasizing that the purpose behind the exclusionary rule is the
deterrent effect on police misconduct, stated, “[W]here the officer’s conduct is
objectively reasonable, ‘excluding the evidence will not further the ends of the
exclusionary rule in any appreciable way; . . . [e]xcluding the evidence can in no way
affect his future conduct unless it is to make him less willing to do his duty.’” Id. at 919-
20 (quoting Stone, 428 U.S. at 539-40) (White, J., dissenting).

     The Supreme Court has expanded the good-faith exception in other cases. In
Massachusetts v. Sheppard, 468 U.S. 981, 990 (1984), the Court declined to apply the
                                            -8-
exclusionary rule where a warrant was held invalid as a result of judge’s clerical error,
explaining, that “‘the exclusionary rule was adopted to deter unlawful searches by police,
not to punish the errors of magistrates and judges.’” Id. (quoting Illinois v. Gates, 462
U.S. 213, 263 (1983) (White, J., concurring in judgment). In Illinois v. Krull, 480 U.S.
340, 349-50 (1987), the Court extended the good-faith exception to searches conducted in
reasonable reliance on subsequently invalidated statutes because “legislators, like judicial
officers, are not the focus of the rule.” Later, reasonable reliance by police on erroneous
information regarding an arrest warrant in a database maintained by judicial employees
was held to not trigger the exclusionary rule. Arizona v. Evans, 514 U.S. 1, 14 (1995).
Herring, to be discussed at length infra, further extended Evans to apply to a warrant
database that was maintained by police in a neighboring jurisdiction because “isolated,
nonrecurring police negligence . . . lacks the culpability required to justify the harsh
sanction of exclusion.” Davis v. United States, 564 U.S. 229, 239 (2011) (citation and
internal quotation marks omitted).

        In Davis, the Supreme Court expanded the good-faith exception and held that
evidence obtained during a search conducted in reasonable reliance on binding precedent
is not subject to the exclusionary rule. 564 U.S. at 241. At the time of the vehicle stop
and warrantless search, then-existing Supreme Court precedent permitted as
constitutional “contemporaneous vehicle searches incident to arrests of recent occupants”
of a vehicle. Id. at 235; New York v. Belton, 453 U.S. 454 (1981). During the pendency
of the criminal case, the United States Supreme Court released its opinion in Arizona v.
Gant, 556 U.S. 332 (2009), which called into question the Belton decision. The United
States Supreme Court granted certiorari and, in applying the good-faith exception to the
facts, reiterated, “We have stated before, and we reaffirm today, that the harsh sanction of
exclusion ‘should not be applied to deter objectively reasonable law enforcement
activity.’” Davis, 564 U.S. at 241 (quoting Leon, 468 U.S. at 919).

                               2. Herring v. United States

       Although this case was decided before Davis, because of its factual similarity to
the instant case and the State’s urging this Court to adopt its rationale, we discuss it
separately rather than as part of the evolution of the United States Supreme Court’s
development of the federal exclusionary rule.

       In Herring, the defendant traveled to the Coffee County, Alabama Sheriff’s
department to retrieve something from his impounded truck. Herring, 555 U.S. at 137.
Being familiar with the defendant and his history with law enforcement, an investigator
requested the county’s warrant clerk to check for any outstanding warrants for Herring’s
                                           -9-
arrest in either Coffee County or in neighboring Dale County. Id. Dale County’s clerk
reported an active arrest warrant for Herring. Id. The Coffee County clerk relayed the
information to the investigator and then requested a faxed copy of the warrant from Dale
County as confirmation. Id. Meanwhile, the investigator and a deputy followed Herring
as he left the impound lot and pulled him over, subsequently arresting him. Id. A search
incident to the arrest revealed illegal drugs in Herring’s pocket as well as a handgun in
his automobile, which, as a felon, he was not permitted to possess. Id.

        However, the Dale County warrant clerk had mistakenly reported an arrest warrant
that had been recalled five months earlier. Id. at 137-38. The warrant clerk discovered
the error when she looked through the files to retrieve a physical copy of the arrest
warrant. Id. at 138. The Dale County Sheriff Department’s computer records should
have corresponded with actual arrest warrants; the office maintained both sets of records.
Id. at 137-38. When the warrant clerk could not locate a physical copy of the warrant,
she called a court clerk, who informed her that the warrant had been previously recalled.
Id. at 138. Standard procedure in Dale County was that when warrant was recalled, either
the court clerk’s office or a judge’s chambers would call the warrant clerk, who would
then enter the information in the computer database and dispose of the physical copy. Id.
However, the information about the recall of Herring’s arrest warrant did not appear in
the database. Id. As soon as the Dale County warrant clerk realized the mistake, she
telephoned her counterpart in Coffee County to alert her, who then radioed the
investigator to inform him of the misinformation. Id. Although the mistake was found
within ten to fifteen minutes, the information was nonetheless too late; the investigator
had already arrested Herring and seized the contraband. Id. At the suppression hearing,
an officer testified that he had never had reason to question information about a Dale
County warrant, and both warrant clerks testified that they could not remember a similar
miscommunication ever happening during the course of their employment. Id.

       In the District Court for the Middle District of Alabama, Herring moved to
suppress the evidence against him on the ground that his initial arrest had been illegal
because the warrant had been rescinded. Id. The District Court adopted the Magistrate
Judge’s recommendation to deny the motion “because the arresting officers had acted in a
good-faith belief that the warrant was still outstanding. Thus, even if there were a Fourth
Amendment violation, there was ‘no reason to believe that application of the
exclusionary rule here would deter the occurrence of any future mistakes.’” Id. at 138
(quoting United States v. Herring, 451 F.Supp.2d 1290 (2005)). The Court of Appeals
for the Eleventh Circuit affirmed. Id. (citing United States v. Herring, 492 F.3d 1212
(2007)). The Eleventh Circuit noted that Dale County’s failure to update the computer
database to reflect the recall of the arrest warrant amounted to negligence but that the
                                          - 10 -
negligence was neither reckless nor deliberate, a fact that the Herring Court considered
“crucial to [its] holding that this error is not enough by itself to require ‘the extreme
sanction of exclusion.’” Id. at 140 (quoting Leon, 468 U.S. at 916). The Eleventh Circuit
found that the officers “were entirely innocent of any wrongdoing or carelessness” and
that even if the sheriff’s department records were maintained by a law enforcement
officer, “the conduct in question [wa]s a negligent failure to act, not a deliberate or
tactical choice to act.” Id. at 138 (citation omitted). It further concluded that the benefit
of suppressing the evidence “would be marginal or nonexistent” and, accordingly,
applied the good-faith exception established in Leon. Id. at 139 (citations omitted). The
United States Supreme Court granted Herring’s petition for certiorari to resolve a conflict
among states because other jurisdictions have applied the exclusionary rule to evidence
obtained through similar police errors. Id. (citing Hoay v. State, 71 S.W.3d 573, 577
(2002)).

        The Herring Court began by reviewing and emphasizing the rationales and
holdings of the prior Supreme Court precedent embodying the good-faith exception to the
exclusionary rule. Id. at 140-41. The Court continued, “‘[T]he rule’s costly toll upon
truth-seeking and law enforcement objectives presents a high obstacle for those urging
[its] application.’” Id. at 141 (quoting Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357,
364-65 (1998)) (internal quotation marks omitted); see also United States v. Havens, 446
U.S. 620, 626-27 (1980); United States v. Payner, 447 U.S. 727, 734 (1980). “The extent
to which the exclusionary rule is justified by these deterrence principles varies with the
culpability of the law enforcement conduct . . .[;] ‘an assessment of the flagrancy of the
police misconduct constitutes an important step in the calculus’ of applying the
exclusionary rule.” Id. at 143 (quoting Leon, 468 U.S. at 911).

       The Supreme Court explained that “error that arises from nonrecurring and
attenuated negligence is thus far removed from the core concerns that led us to adopt the
rule in the first place.” Id. at 144. Accordingly, the Supreme Court held “that when
police mistakes are the result of negligence such as that described here, rather than
systemic error or reckless disregard of constitutional requirements, any marginal
deterrence does not ‘pay its way’ . . . . In such a case, the criminal should not ‘go free
because the constable has blundered.’” Id. at 147-48 (internal citations omitted).

                                   3. Other Jurisdictions

       In searching for guidance on this issue, we note the lack of a similar fact pattern—
a person arrested without a warrant based on a specific condition such as being barred
from property—in any other jurisdiction. However, because Tennessee law permits a
                                           - 11 -
warrantless misdemeanor arrest for criminal trespass when an officer has knowledge of
the defendant’s status of being barred from the housing authority property, for the
purpose of our analysis, we find instructive a comparison of cases in which law
enforcement officers acted upon an arrest warrant that was later determined to be
invalid,2 see, e.g., State v. Ash, 12 S.W.3d 800, 804 (Tenn. Crim. App. 1999), or upon
information from a computerized database, such as NCIC or motor vehicle databases, that
was later deemed inaccurate.

       Some jurisdictions have rejected a good-faith exception to the exclusionary rule on
the basis of state law. See State v. Koivu, 272 P.3d 483, 491 (Idaho 2012) (holding that
good-faith exception would not be adopted even in cases where police misconduct is not
alleged); State v. Shannon, 120 A.3d 924, 933 (N.J. 2015) (concluding that an invalid
warrant is constitutionally defective and “cannot provide the basis for an objective and
reasonable belief that probable cause to arrest exists” and that “[t]o hold otherwise would
be akin to adopting the good-faith exception to the exclusionary rule that has been
explicitly, and consistently, rejected” by the court); State v. Handy, 991 A.2d 281, 285-86
(N.J. Sup. Ct., App. Div. 2010) (noting that although “federal courts recognize a good-
faith exception to the exclusionary rule, pursuant to which evidence will not be
suppressed if the police officers employed an objective standard of reasonableness and
acted in good faith with respect to a warrant later found to be defective, . . . New Jersey,
however, does not recognize a good-faith exception”) (internal citations omitted);
Commonwealth v. Maingrette, 20 N.E.3d 626, 629 n.3 (Mass. App. Ct. 2014)
(recognizing that Massachusetts has not adopted the “good-faith” exception but instead
focuses on “whether the violations are substantial and prejudicial and whether exclusion
will deter future police misconduct”) (internal citations omitted); Commonwealth v.
Johnson, 86 A.3d 182, 191 (Pa. 2014) (declining to apply the good-faith exception to
allow introduction of evidence seized pursuant to an arrest made on an invalid warrant);
State v. Betancourth, 413 P.3d 566, 571 (Wash. 2018) (explaining that while the federal
exclusionary rule is grounded in deterring unlawful police conduct, the state rule’s
“paramount concern” is protecting the rights of the individual).

      Other states have applied the good-faith exception in a variety of circumstances.
See Shotts v. State, 925 N.E.2d 719 (Ind. 2010) (applying “good-faith” exception to

       2
        To be clear, in this context “invalid” refers to a warrant that officers believed at the
time to be valid but is later determined to have been recalled or otherwise found to be
without force and effect. We do not intend to include in this discussion warrants that were
challenged because of clerical problems, as that situation has already been addressed by
this Court. See Lowe, 552 S.W.3d at 859.
                                            - 12 -
exclusionary rule where officers reasonably relied on erroneous NCIC report of an
outstanding Alabama warrant for defendant’s arrest); Domino v. Crowley City Police
Dep’t, 65 So.3d 289 (La. Ct. App. 2011) (applying “good-faith” exception to
exclusionary rule where officer reasonably relied on validly issued warrant, which
warrant he in good-faith did not know had been recalled); State v. Johnson, 6 So.3d 195,
196 (La. Ct. App. 2009) (applying Herring good-faith exception to drugs seized when
officer pulled over defendant for a valid traffic stop, learned of an arrest warrant issued
from same county—which was later determined to be invalid—through database
maintained by same county, and attempted to verify the warrant through NCIC but
system was down); McCain v. State, 4 A.3d 53, 65 (Md. Ct. Spec. App. 2010)
(recognizing good-faith exception based on officer’s reasonable reliance on information
contained in the state motor vehicle registration that was later determined to be
inaccurate); State v. Rolenc, 885 N.W.2d 568 (Neb. Ct. App. 2016) (adopting good-faith
exception and admitting evidence obtained pursuant to search incident to arrest that was
based on incorrect information in driver’s license database); State v. Bromm, 826 N.W.2d
270, 276 (Neb. 2013) (admitting evidence of driving under the influence pursuant to
good-faith exception when officer pulled over the vehicle driven by defendant for
suspicion of falsified tags based on erroneous information from county clerk’s office);
State v. Geiter, 942 N.E.2d 1161 (Ohio Ct. App. 2010) (applying “good-faith” exception
to exclusionary rule where officer was objectively reasonable in relying on erroneous
information conveyed via police dispatch); Bellamy v. Commonwealth, 60 Va. App. 125,
132 (Va. Ct. App. 2012) (applying good-faith exception to allow introduction of evidence
obtained as a result of officer’s reasonable belief that an arrest warrant for defendant was
outstanding, relying on information from dispatcher that was later deemed to be
erroneous); see also State v. Nelms, 81 N.E.3d 508, 513 (Ohio Ct. App. 2017)
(concluding, in dicta, that even if the vehicle searched had not been covered by the valid
search warrant, the good-faith exception to the exclusionary rule would nonetheless apply
because officers believed in good faith that the vehicle was covered by the warrant).

        Still other jurisdictions have recognized the good-faith exception but concluded it
was inapplicable under the facts of the case. People v. Arnold, 914 N.E.2d 1143, 1155-
56 (Ill. Ct. App. 2009) (acknowledging good-faith exception but declining to apply it
where officer arrested defendant because defendant’s name was on a warrant list from
several days prior and officer had not received confirmation of the warrant before
handcuffing defendant).




                                           - 13 -
                         4. Tennessee’s Good-Faith Exception

       Despite having opportunities to do so, Tennessee did not adopt a good-faith
exception to the exclusionary rule until 2016. See State v. Keith, 978 S.W.2d 861, 871
(Tenn. 1998) (Birch, J., dissenting) (noting that Tennessee had not yet adopted the good-
faith exception of Leon); State v. Carter, 16 S.W.3d 762, 768 n.8 (Tenn. 2000)
(expressing reticence about incorporating a good-faith exception into Tennessee’s
jurisprudence and instead deciding the admissibility of a confession on Fourth
Amendment grounds).

        In 2016, this Court was squarely presented with an opportunity to decide whether
to apply the Davis good-faith exception in Tennessee. State v. Reynolds, 504 S.W.3d 283
(Tenn. 2016). In Reynolds, an officer ordered a warrantless blood draw, pursuant to
Tennessee’s implied consent law, from a defendant who was involved in a motor vehicle
fatality and who he reasonably believed to have been intoxicated at the time. Id. at 289.
Although at the time of the defendant’s vehicle collision, United States Supreme Court
precedent permitted warrantless blood draws in DUI cases based on the exigent
circumstances created by the rapid dissipation of alcohol in the blood stream, Schmerber
v. California, 384 U.S. 757, 770-71 (1966), the trial court nonetheless suppressed the
evidence on other grounds, Reynolds, 504 S.W.3d at 295.

       The State successfully appealed to the Court of Criminal Appeals, which stated
that even if the implied consent law were found to be unconstitutional, Tennessee should
adopt the good-faith exception set forth in the United States Supreme Court’s decision in
Davis v. United States, which held that “[e]vidence obtained during a search conducted in
reasonable reliance on binding precedent is not subject to the exclusionary rule.” Davis,
564 U.S. at 241. This Court granted the defendant’s application for permission to appeal
and adopted the good-faith exception to the state exclusionary rule as described in Davis,
explaining that this adoption was a logical extension because “we have already
recognized and applied other doctrines that are in effect exceptions to the exclusionary
rule.” Reynolds, 504 S.W.3d at 313 (citing State v. Carter, 160 S.W.3d 526, 532-33
(Tenn. 2005); State v. Huddleston, 924 S.W.2d 666, 674-75 (Tenn. 1996)). Notably,
however, this Court left open other applications of the good-faith exception, stating, “We
adopt only the Davis good-faith exception, which ‘represents a small fragment of federal
good-faith jurisprudence.’” Id. (quoting State v. Lindquist, 869 N.W.2d 863, 876 (Minn.
2015)).

       This Court next considered, in three separate cases, the good-faith exception as it
pertained to technical flaws in otherwise valid search warrants. In State v. Davidson, 509
                                          - 14 -
S.W.3d 156, 184 (Tenn. 2016), the investigating officer prepared an affidavit and search
warrant for the search of the defendant’s residence but inadvertently failed to change the
printer settings from “letter” to “legal” size, which resulted in the bottom three inches,
including the signature line of the affiant, being omitted from the affidavit. In the judge’s
chambers, both the judge and the investigator signed the warrant, but no one noticed the
omission of the signature line for the affiant. Id. The Davidson Court explained that
despite the technical deficiency on the warrant, it nonetheless “passed constitutional
muster” because “[t]he Fourth Amendment’s oath or affirmation requirement was
satisfied when [the investigator] raised his right hand and swore to the truth of the facts in
the unsigned affidavit.” Id. at 183. This Court adopted a good-faith exception to permit
the admission of evidence obtained as a result of an officer’s reasonable and good faith
reliance on a search warrant that he believed to be valid but was later determined to be
invalid “solely because of a good-faith failure to comply with the affidavit requirement
[of the Tennessee Code and the Tennessee Rules of Criminal Procedure].” Id. at 185-86.

       Next, in Lowe, we held that “a good-faith clerical error that results in an
inconsequential variation between the three copies of a search warrant required pursuant
to Rule 41, in and of itself, does not entitle the moving party to suppression of the
evidence collected pursuant to the warrant.” 552 S.W.3d at 859. Accordingly, we
adopted a good-faith exception to the exclusionary rule under such circumstances. In
State v. Daniel, we applied a good-faith exception to the technical requirement that the
officer executing a search warrant leave a copy of the warrant with the person being
searched “given the specific facts of this case in which the Defendant was aware of the
blood draw and the fact that no property of the Defendant was seized as a result of the
warrant which could later be returned.” 552 S.W.3d 832, 841 (Tenn. 2018).

                                       5. Application

        We have reviewed cases from other jurisdictions that support both the State’s and
the defendant’s positions in this case, as well as the development of the federal good-faith
exception to the exclusionary rule and our own. In our view, having the issue squarely
presented, it is appropriate at this point to adopt the good-faith exception set forth in
Herring and to hold, as the United States Supreme Court did, “that when police mistakes
are the result of negligence . . . rather than systemic error or reckless disregard of
constitutional requirements, any marginal deterrence does not ‘pay its’ way.’” Herring,
555 U.S. at 147-48 (citation omitted). This is in keeping with our prior holdings
clarifying that Tennessee’s search and seizure provisions are “identical in intent and


                                           - 15 -
purpose” with the United States Constitution’s Fourth Amendment. 3 See, e.g., State v.
Hawkins, 519 S.W.3d 1, 33 (Tenn. 2017); Christensen, 517 S.W.3d at 68; State v. Tuttle,
515 S.W.3d 282, 304 (Tenn. 2017); Davidson, 509 S.W.3d at 182; Reynolds, 504 S.W.3d
at 303; State v. Willis, 496 S.W.3d 653, 719 (Tenn. 2016) (stating “that federal cases
applying the Fourth Amendment should be regarded as ‘particularly persuasive’”
(quoting State v. Hayes, 188 S.W.3d 505, 511 (Tenn. 2006))).

      Having concluded that the good-faith exception can hereinafter be considered in
Tennessee, we next consider the nature of the police error in the instant case.

       In the instant case, Officer Cummings, upon seeing the defendant on property
from which the officer thought he had been barred, contacted dispatch to confirm the
defendant’s status and received confirmation that the defendant had been barred. Acting
on the erroneous confirmation, Officer Cummings arrested the defendant for criminal
trespass and seized marijuana from the defendant’s pocket. Nearly three weeks later, a
similar situation ensued, and Officer Cummings again arrested the defendant for trespass
and seized additional marijuana at that time.

       With regard to the information provided to Officer Cummings associated with the
first arrest, we must question, as did the trial court, the propriety of the police
department’s practice of maintaining two lists—one for names of barred individuals and
one for the names of individuals who had been removed from the list. It clearly did not
provide for a system of checks and balances to prevent errors such as this from occurring.

       3
          Our adoption of Herring’s good-faith exception is consistent with the recent
amendment to Rule 41 of the Tennessee Rules of Criminal Procedure. Tenn. R. Crim. P. 41
(as amended July 1, 2018). Effective July 1, 2018, Rule 41 has been amended to provide
trial courts the discretion to determine whether to exclude evidence that was seized
pursuant to a search warrant that meets constitutional requirements but is noncompliant
with Rule 41’s technical requirements. Lowe, 552 S.W.3d at 854 n.9. The amendment also
aligns Rule 41 with recent statutory changes and developments in case law. Id. (citing
State v. Tuttle, 515 S.W.3d 282, 308 (Tenn. 2017); Reynolds, 504 S.W.3d at 313). In
applying Rule 41 during hearings on motions to suppress the evidence, trial judges will
hereafter have discretion to consider variations of the good-faith exception as described
herein. In doing so, we urge the trial courts to consider the following non-exhaustive
factors: (1) whether the police error was the result of simple negligence rather than
systemic error; (2) whether the error was the result of reckless disregard of constitutional
requirements; (3) whether the error was isolated rather than recurrent; and (4) whether the
error existed, undetected or uncorrected, for such an amount of time as to indicate reckless
or gross negligence.
                                           - 16 -
Whatever the reason might have been, it clearly fell short of its intended purpose. The
mistake existed for approximately five years before being brought to light.

        With regard to the second arrest, we note that the transcript indicates that at some
point, the defendant and his aunt visited Lieutenant Dowell at the police department and
complained that the defendant was not barred from the housing authority property at the
time of at least one of his arrests. At that time, Lieutenant Dowell consulted both the
barred list and the list of unbarred individuals and noticed the discrepancy but said, “[A]
mistake was made that he was still on this list . . . .” The testimony is unclear as to
exactly when the department was put on notice about the mistake—whether this occurred
after the defendant’s first arrest or the second—and there are no exhibits to clarify this
point.

       As stated supra, we begin with the proposition that warrantless searches and
seizures are presumptively unreasonable, and any evidence that is discovered as a result
thereof is subject to suppression. Turner, 297 S.W.3d at 160 (citation omitted). The
State carries the burden of proving that a warrantless search was constitutionally
permissible. Ingram, 331 S.W.3d at 755 (citation omitted); see United States v. Diehl,
276 F.3d 32, 41-42 (1st Cir. 2002) (explaining that when the State seeks to introduce
evidence based on a good-faith exception to the exclusionary rule, the State carries the
burden to demonstrate that the conduct at issue meets the standards of good faith); see,
e.g., Lowe, 552 S.W.3d at 859 (recognizing that the State bears the burden of proving that
an error resulting in a warrant being in technical violation of procedural rules or statutes
was made in good faith and resulted in no prejudice to the defendant). In Lowe, this
Court recognized the amorphous nature of the term “good faith” but posited that “a good-
faith mistake is one characterized by simple, isolated oversight or inadvertence. A good-
faith mistake does not include conduct that is deliberate, reckless, or grossly negligent,
nor does it include multiple careless errors.” Lowe, 552 S.W.3d at 860.

        In this case, aside from a brief comment by Lieutenant Dowell that the list is
correct “99%” of the time, the record is devoid of any evidence that the error in this case
was a result of a good-faith mistake. Lieutenant Dowell did not provide a factual basis
for this statistic. For example, Lieutenant Dowell did not testify that he, or anyone in his
department, reconciled the two lists on a regular basis.

      By contrast, the proof in Herring included a description of Dale County’s standard
procedure, which involved the court clerk’s office or the judge’s chambers calling the
warrant clerk when the warrant had been recalled. Herring, 555 U.S. at 138. The
warrant clerk would then enter the information into the computer database and dispose of
                                           - 17 -
the physical copy of the warrant. Id. The Supreme Court justifiably relied on this proof
to conclude that the error in Herring resulted from negligence.

        In Herring, the error in the Dale County warrant database at issue remained
undiscovered for five months; in this case, the error remained undetected for almost five
years. The constitutional violation here resulted not from “nonrecurring and attenuated
negligence” but rather from a system inherently flawed by the maintenance of separate
lists and the lack of any regular process by which to reconcile the two.

        Moreover, in opining that the facts of Herring and this case are
“indistinguishable,” Justice Kirby’s separate opinion highlights the fact that in both cases,
the errors were not discovered until the second source (in Herring, the physical warrant
file; in this case, the “remove from barred list”) was consulted. A key and
insurmountable difference is that the Herring error was caught within minutes; the error
in this case was not caught until the defendant himself, together with his aunt, met with
Lieutenant Dowell to point out the error. By that time, he had been arrested not once but
twice on the faulty information. We conclude that the State failed to carry its burden of
proving that the evidence seized pursuant to the defendant’s warrantless arrests should be
exempted from exclusion by the good-faith doctrine. We hold that the good-faith
exception to the exclusionary rule does not apply to the facts of this case.

       Sound policy reasons support this conclusion. The Herring Court reiterated,
“[T]he benefits of deterrence must outweigh the costs.” Herring, 555 U.S. at 141 (citing
Leon, 468 U.S. at 910). “The extent to which the exclusionary rule is justified by these
deterrence principles varies with the culpability of the law enforcement conduct . . . [;]
‘an assessment of the flagrancy of the police misconduct constitutes an important step in
the calculus’ of applying the exclusionary rule.” Id. at 143 (quoting Leon, 468 U.S. at
911). Similarly, the Supreme Court stated in Krull that “evidence should be suppressed
‘only if it can be said that the law enforcement officer had knowledge, or may properly
be charged with knowledge, that the search was unconstitutional under the Fourth
Amendment.”’ Krull, 480 U.S. at 348-49 (quoting United States v. Peltier, 422 U.S. 531,
542 (1975)). “To trigger the exclusionary rule, police conduct must be sufficiently
deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such
deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144.

       In Leon, the Supreme Court stated, “If exclusion of evidence . . . is to have any
deterrent effect, therefore, it must alter the behavior of individual law enforcement
officers or the policies of their departments.” Leon, 468 U.S. at 918. By any standards,
the driving policy behind a system that permits a mistake to lie dormant in its records for
                                           - 18 -
almost five years must be altered. ‘“The deterrent purpose of the exclusionary rule
necessarily assumes that the police have engaged in willful, or at the very least negligent,
conduct which has deprived the defendant of some right.”’ Id. at 919 (quoting United
States v. Peltier, 422 U.S. 531, 539 (1975)). The record-keeping system in this case rises
to the level of negligence that cannot be ignored when an individual’s constitutional
rights hang in the balance. We characterize this inadvisable practice as the kind of
“systemic error or reckless disregard of constitutional requirements” against which
Herring cautioned. See Herring, 555 U.S. at 147.

       In the defendant’s/appellee’s brief, he argued:

              In the case at hand, to allow a police officer to arrest an individual
       based upon a list that the police officer’s own agency creates, maintains and
       has exclusive control over and then claim good faith based upon
       negligently created information from the list would create a dangerous
       precedent. The risk of potential abuse is very palpable and the exclusionary
       rule serves as a deterrent to future abuses. In the Herring case, the police
       officer’s information was garnered from another police agency’s database
       and had not been maintained by the arresting officer’s county. That
       scenario is distinguishable from the case at hand.

We agree. This Court has recognized the doctrine of “collective knowledge” of police
officers. State v. Clayton, 535 S.W.3d 829, 849 (Tenn. 2017) (“Whether the police
possessed probable cause requires consideration of the ‘collective knowledge that law
enforcement possessed at the time of the arrest . . . .’” (quoting State v. Bishop, 431
S.W.3d 22, 36 (Tenn. 2014)); Bishop, 431 S.W.3d at 36 (explaining that consideration of
the collective knowledge requires that “a sufficient nexus of communication existed
between the arresting officer and any other officer or officers who possessed relevant
information. Such a nexus exists when the officers are relaying information or when one
officer directs another officer to act.”).

       In light of our adherence to the principles of collective knowledge when
determining probable cause, we find it applicable here. “[I]f we impute to the arresting
officer the collective knowledge of law enforcement agencies for the purpose of
establishing probable cause, we must also charge him with knowledge of information
exonerating a suspect formerly wanted in connection with a crime.” People v. Ramirez,
668 P.2d 761, 764 (Cal. Sup. Ct. 1983). If “[t]he ‘fellow officer’ or ‘collective
knowledge’ rule cannot function . . . permissively[] to validate conduct otherwise

                                           - 19 -
unwarranted[,] [then] the rule also operates prohibitively[] by imposing on law
enforcement the responsibility to disseminate only accurate information.” Id. at 764-65.

      The point is not that probable cause is lacking because it turned out that the
      “facts” upon which the officer acted were actually not true . . . Rather, the
      point is that the police may not rely upon incorrect or incomplete
      information when they . . . are at fault in permitting the records to remain
      uncorrected.

5 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 3.5(d),
at 359-60 (5th ed. 2012). “The notion may be that when the law enforcement system
elects to construct an elaborate recordkeeping system it must be charged with the
responsibility of keeping that system reasonably up to date.” Id. at 362-63 (explaining
that while courts are “understandably not inclined to infer police misconduct” when the
records are outdated by a few days but that “to tolerate much longer delays on the bizarre
notion that police ‘forgot’” to update the system is clearly wrong).

      In Leon, the United States Supreme Court enunciated the same concept, stating:

      References to “officer” throughout this opinion should not be read too
      narrowly. It is necessary to consider the objective reasonableness, not only
      of the officers who eventually executed a warrant, but also of the officers
      who originally obtained it or who provided information material to the
      probable-cause determination. Nothing in our opinion suggests, for
      example, that an officer could obtain a warrant on the basis of a “bare
      bones” affidavit and then rely on colleagues who are ignorant of the
      circumstances under which the warrant was obtained to conduct the search.

Leon, 468 U.S. at 925 n.24; see Whiteley v. Warden, 401 U.S. 560, 568 (1971). “In
analyzing the applicability of the rule,” the Herring Court reiterated, “Leon admonished
that we must consider the actions of all the police officers involved.” Herring, 555 U.S.
at 140 (citing Leon, 468 U.S. at 925 n.24).

       Had the information regarding the defendant’s removal from the barred list been
entered appropriately into the database by Lieutenant Dowell or his staff, Officer
Cummings would have received an accurate response to his inquiry, i.e., he would have
been informed there was no basis for detaining the defendant for criminal trespass.
Because the reinstatement of the defendant was or should have been within the
“collective knowledge” of the police, “we cannot permit the arresting officer to rely with
                                          - 20 -
impunity on his fellow officers’ errors of omission, but must impute their accurate
knowledge to him.” Ramirez, 668 P.2d at 765. The Union City Police Department
created and maintained the barred list, upon which a Union City Police officer relied, thus
we conclude that a sufficient nexus existed between Officer Cummings as the arresting
officer and the Lieutenant Dowell (and/or the dispatcher acting at his direction) as the
officer maintaining the information. To be clear, we do not find fault with Officer
Cummings’ actions; he merely acted on information that was given to him. Nonetheless,
because the information was propagated by the same agency, as a matter of law the
information must be imputed to Officer Cummings.

       Justice Kirby’s separate opinion makes much of the majority’s reasoning that the
knowledge of Lieutenant Dowell and his staff should be imputed to Officer Cummings
because they work within the same police department. We agree that Herring does not
turn on whether the information is disseminated to the same department that collected it
or to a sister agency. However, in this case, the Union City dispatcher could have easily
indicated that McElrath was on the barred list and then quickly consulted the “remove
from barred” list to confirm it. The ease of access to information within the same
department is much greater than that of a different department. While Herring could still
apply to intradepartmental information, it does not apply in this case, and it is, indeed, a
distinction with a difference.

       This error cannot be saved by application of the Herring good-faith doctrine.
Applying these fundamental concepts to the instant case, we conclude that the conduct at
issue was so objectively culpable as to require exclusion and that the deterrence obtained
by excluding the evidence outweighs the societal costs. The arrests arose not from
“nonrecurring and attenuated negligence” but rather from a system that was so fraught
with problems that a mistake remained undetected for several years. This case presents a
factual scenario that falls outside of the realm of “good faith” and is more closely akin to
the “reckless[ ] or grossly negligent” category of errors proscribed by Lowe. 552 S.W.3d
at 860. The trial court properly suppressed the evidence in both cases, and the judgment
of the Court of Criminal Appeals is affirmed.

                                     CONCLUSION

       Therefore, we adopt the good-faith exception as set forth in Herring v. United
States. However, we conclude that the facts of this case do not support application of the



                                           - 21 -
good-faith exception to the exclusionary rule. We affirm the judgment of the Court of
Criminal Appeals. Costs are taxed to the State.



                                                    ___________________________
                                                    ROGER A. PAGE, JUSTICE




                                       - 22 -
