                                                                                       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, Judge


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



SHARON G. LEE, J., concurring in the suppression of evidence; dissenting from the
adoption of an exclusionary rule exception for constitutional violations caused by
careless police recordkeeping.


       A Union City Police Department officer twice arrested and searched Jerome
Antonio McElrath because of systemic and long-standing errors in the police
department’s records. By stopping and searching McElrath without probable cause based
on these errors, the police violated McElrath’s constitutional right to be free from
unreasonable searches and seizures. I disagree with the majority’s adoption of an
exception to the exclusionary rule to excuse negligent police recordkeeping. That said, I
agree with the majority’s conclusion that the negligence exception does not apply here
because of the police department’s systemically flawed recordkeeping process. The
majority provides a good roadmap for trial courts to make the fact-intensive
determination of whether isolated or systemic negligence caused the police error thus,
whether the negligence exception applies.

        On April 8, 2015, McElrath was standing outside the Union City Housing
Authority’s community center—a place he had a right to be. A police officer saw
McElrath and believed he was barred from the Housing Authority’s property. The officer
checked with the police department’s dispatcher, who confirmed that McElrath was on
the police department’s barred list for the Housing Authority. The officer then arrested
McElrath for criminal trespass and searched him, finding marijuana. A couple of weeks
later, the officer again saw McElrath on the property of the Housing Authority, arrested
him a second time for criminal trespass and searched him, finding marijuana.
         But the police department’s records were wrong and had been wrong for nearly
five years. For some unexplained reason, the police department kept two lists: a list of
people barred from the Housing Authority’s property and another list of people removed
from the barred list. In 2007, the police department placed McElrath on the barred list. In
2010, the police department approved McElrath’s request for removal from the barred
list. The police department added McElrath’s name to the removed list but failed to take
his name off the barred list. The police department did not merge or reconcile the two
lists, resulting in McElrath’s name remaining on the barred list for almost five years. To
make things worse, the dispatcher only checked the barred list, not the list of people who
had been removed from the barred list. McElrath brought the error to the attention of the
police department after he had been twice wrongfully arrested because of the faulty
recordkeeping.

        This haphazard recordkeeping system was bound to result in errors. Although a
police department lieutenant testified that the barred list was correct 99% of the time, he
offered no basis or explanation for his conclusion. And no basis for this self-serving
statistic appears in the record. What we do know is that for almost five years, the police
department did not update its barred list to remove McElrath’s name, and in 2015, police
arrested McElrath two times because of police department errors.

       Today, a majority of the Tennessee Supreme Court adopts an exception to the
exclusionary rule to excuse negligent police recordkeeping based on United States v.
Herring, 555 U.S. 135 (2009). In Herring, a county sheriff’s deputy arrested and
searched Bennie Dean Herring after learning that a neighboring county’s sheriff’s
department had an unserved warrant for his arrest. Id. at 137. The search uncovered a gun
and drugs. Id. Yet the neighboring county’s records were wrong; there had been a warrant
for Herring’s arrest in that county, but the warrant had been recalled months earlier. Id. at
137–38. The records failed to show the recall of the warrant, resulting in Herring’s
unlawful arrest and search. Id. at 138.

        In Herring, a majority of the United States Supreme Court, in a 5-4 opinion, ruled
that the contraband found in the search was admissible even though the deputy had
violated Herring’s Fourth Amendment rights. Id. at 137. The majority reached this result
by adopting an exception to the exclusionary rule, concluding that the contraband was
admissible because isolated police negligence attenuated from the arrest had caused the
recordkeeping error. Id. The majority reasoned that when police conduct is only
negligent, rather than caused by systemic error or made with reckless disregard of
constitutional requirements, then “any marginal deterrence does not pay its way.” Id. at
147–48 (internal quotation marks omitted). Exclusion of the evidence would have been
justified, according to the majority, if Herring had proven that the police had been
reckless in maintaining its records or knowingly made false entries to provide a basis for
future false arrests. Id. at 146.


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       I agree with the four dissenting justices in Herring, who concluded that
“[n]egligent recordkeeping errors by law enforcement threaten individual liberty, are
susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively
through other means.” Id. at 157 (Ginsburg, J., dissenting). An exception to the
exclusionary rule for careless police recordkeeping erodes federal and state constitutional
guarantees against illegal searches and seizures. The Fourth Amendment to the United
States Constitution declares 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.” U.S. Const. amend. IV. The Tennessee Constitution provides another layer of
protection by stating that “the people shall be secure in their persons, houses, papers and
possessions, from unreasonable searches and seizures.” Tenn. Const. art. I, § 7.

       The exclusionary rule safeguards these constitutional rights by providing a remedy
for the violation of the Fourth Amendment and Article I, section 7. This remedy is the
suppression of evidence obtained through an illegal search or seizure. State v. Reynolds,
504 S.W.3d 283, 309–10 (Tenn. 2016) (citing Weeks v. United States, 232 U.S. 383
(1914); Davis v. United States, 564 U.S. 229, 236 (2011); United States v. Calandra, 414
U.S. 338, 348 (1974); State v. Huddleston, 924 S.W.2d 666, 672 (Tenn. 1996)).

       Under the exclusionary rule, police gain no benefit from an illegal search and,
thus, have a strong incentive to comply with the constitutional prohibitions against
unreasonable searches and seizures. See Reynolds, 504 S.W.3d at 310 (quoting Elkins v.
United States, 364 U.S. 206, 217 (1960)) (stating that the purpose of the exclusionary rule
is “to deter—to compel respect for the constitutional guaranty in the only effectively
available way—by removing the incentive to disregard it”). The conclusion in Herring
that there would be only marginal deterrence from excluding evidence based on police
negligence goes against the long-standing tort principle that individuals and entities have
an incentive to act with due care when there is liability for negligence. The distinction
between police conduct that is negligent as opposed to intentional or reckless, as noted by
Herring, is of little comfort to a citizen who the police wrongfully arrest, handcuff,
search, and haul off to jail. Whatever the cause of the error, the result is the same—a
violation of a basic constitutional right. We should not reduce a citizen’s right to be free
from unreasonable searches and seizures to a cost-benefit analysis, as it was in Herring.
See State v. McKnight, 319 P.3d 298, 325 (Haw. 2013) (Acoba, J., dissenting). The
exception for police negligence is poised to swallow the exclusionary rule. Davis, 564
U.S. at 258 (Breyer, J., dissenting); accord McKnight, 319 P.3d at 325 (observing that
after Herring, safeguards of constitutional rights provided by the exclusionary rule have
been largely eviscerated).

       Many legal commentators have appropriately criticized the Herring exception for
negligent police recordkeeping. See 1 Steve C. Posner, Modern Privacy & Surveillance
Law § 2.08 (Matthew Bender & Co. 2018) (asserting that the Herring exception is


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tantamount to a policy decision that “convicting criminals is more important than
preventing citizen victimization due to police negligence in record keeping”); Thomas K.
Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 CHI.-KENT L.
REV. 191, 207 (2010) (predicting that a broad reading of the “mere negligence” standard
under Herring might “make many—if not most—Fourth Amendment violations
inappropriate candidates for suppression”); George M. Dery, III, Good Enough for
Government Work: The Court’s Dangerous Decision, in Herring v. United States, to
Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 GEO. MASON
U. C.R. L.J. 1, 27 (2009) (contending that Herring signals to the police that negligence
by individual agents need not be avoided); Alex R. Hess, Herring v. United States: Are
Errors in Government Databases Preventing Defendants from Receiving Fair Trials?, 11
J. HIGH TECH. L. 129, 131 (2010) (pointing out the unfairness in admitting illegally
seized evidence while giving the government a pass for keeping incorrect records);
Matthew Allan Josephson, To Exclude or Not Exclude: The Future of the Exclusionary
Rule After Herring v. United States, 43 CREIGHTON L. REV. 175, 196 (2009) (noting that
if Herring allows the admission of illegally seized evidence, as long as the police did not
act culpably, then the warrant requirement would eventually not be much of a
requirement at all); Candace C. Kilpinen, Comment, Herring v. United States: A Threat
to Fourth Amendment Rights?, 44 VAL. U. L. REV. 747, 756 (2010) (warning that
Herring may result not only in the loss of the exclusionary rule but also in the demise of
the Fourth Amendment itself); Wayne R. Lafave, The Smell of Herring: A Critique of the
Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. CRIM. L. &
CRIMINOLOGY 757, 782 (2009) (concluding that police are better positioned to remedy
their own errors and might do so “if the exclusionary rule were there to remove the
incentive to do otherwise”); Jennifer E. Laurin, Trawling for Herring: Lessons in
Doctrinal Borrowing and Convergence, 111 COLUM. L. REV. 670, 744 (2011)
(concluding that Herring “may well represent a sweeping rollback of the exclusionary
rule that will effectively preclude any remedy for entire categories of Fourth Amendment
violations—in particular, those resulting from negligent police conduct”); Claire
Angelique Nolasco et al., What Herring Hath Wrought: An Analysis of Post-Herring
Cases in the Federal Courts, 38 AM. J. CR. L. 221, 231 (2011) (quoting United States v.
Jones, 620 F. Supp. 2d 163, 177 (D. Mass. 2009)) (noting the view that “Herring
foreshadows the elimination of the exclusionary rule altogether”); see also David L.
Hudson, Opinion, Tennessee Supreme Court Must Resist Chipping Away at Fourth
Amendment Rights, THE TENNESSEAN, March 21, 2018, https://www.tennessean.com/
story/opinion/2018/03/21/tennessee-supreme-court-fourth-amendment-rights/374946002/
(“The exclusionary rule ensures that the government does not violate the law in fulfilling
its mission.”).

       Against this backdrop, a majority of the Tennessee Supreme Court in State v.
Reynolds, 504 S.W.3d 283, 313 (Tenn. 2016), adopted a narrow exception to the
exclusionary rule for constitutional violations. The exception was based on Davis v.


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United States, 564 U.S 229 (2011), and applied to evidence obtained in reliance on
binding judicial precedent later overturned. Reynolds, 504 S.W.3d at 312. I dissented in
Reynolds, because “[t]he adoption of this exception for a constitutional violation erodes
our citizens’ rights to be free from unreasonable searches and seizures as guaranteed by
the United States and Tennessee Constitutions.” Id. at 315 (Lee, J., dissenting). That said,
I later joined in adopting a good faith exception for a statutory or procedural rule
violation. See State v. Davidson, 509 S.W.3d 156 (Tenn. 2016); State v. Daniel, 552
S.W.3d 832 (Tenn. 2018); State v. Lowe, 552 S.W.3d 842 (Tenn. 2018). A constitutional
violation differs from a statutory or rule violation. Our federal and state constitutions are
the foundation of our democracy and have withstood the test of time. Statutes and rules
are important but can be amended or repealed from one legislative session to the next. To
this point, Tennessee Rule of Criminal Procedure 41, the violation of which was at issue
in Davidson, Daniel, and Lowe, was amended after these opinions were issued to give
courts discretion in suppression decisions. See Daniel, 552 S.W.3d at 835 n.5 (explaining
that the amended version of Rule 41 permits a trial court to exercise discretion in ruling
on a motion to suppress if the conduct at issue violates Rule 41, but not the Constitution).

       We have interpreted Article I, section 7 of the Tennessee Constitution to be
“identical in intent and purpose with the Fourth Amendment,” Reynolds, 504 S.W.3d at
303 (internal quotation marks omitted), but we have “not hesitated to extend greater
privacy protections to the citizens of this State when appropriate” under that section.
State v. Randolph, 74 S.W.3d 330, 335 (Tenn. 2002); accord Miller v. State, 584 S.W.2d
758, 760 (Tenn. 1979). Although we look to the United States Supreme Court to guide
our interpretation of state constitutional rights, we need not move in “lockstep” with its
decisions. See State v. Handy, 18 A.3d 179, 186 (N.J. 2011).

        In sum, declining to hold the police accountable when their negligence results in a
constitutional violation erodes public trust in the judicial system, makes courts
participants in “official lawlessness,” and signals that the government may indeed profit
sometimes “from its lawless behavior.” Herring, 555 U.S. at 152 (Ginsburg, J.,
dissenting) (citations omitted); see also Olmstead v. United States, 277 U.S. 438, 485
(1928) (Brandeis, J., dissenting) (“To declare that in the administration of the criminal
law the end justifies the means—to declare that the government may commit crimes in
order to secure the conviction of a private criminal—would bring terrible retribution.”),
overruled in part by Berger v. State of New York, 388 U.S. 41 (1967) and Katz v. United
States, 389 U.S. 347 (1967); State v. Hess, 785 N.W.2d 568, 584–85 (Wis. 2010)
(rejecting the proposition that under Herring and other recent Supreme Court decisions,
“judicial integrity” is no longer a part of the exclusionary rule analysis). Courts abdicate
their responsibility to protect citizens’ constitutional rights by imposing no consequence
on police carelessness that results in a violation of these sacred rights. We should reject
the Herring exception and preserve the efficacy of the exclusionary rule to redress



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constitutional violations and not justify negligent police conduct at the expense of
constitutional rights.

      Although I dissent from the adoption of the Herring exception for negligence, I
concur in the majority’s decision that McElrath’s arrests were the result of long-standing
mistakes in the police department’s records caused by an inherently flawed
recordkeeping system.



                                                _________________________________
                                                SHARON G. LEE, JUSTICE




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