                                                                                          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)
                       ___________________________________

HOLLY KIRBY, J., concurring in part and dissenting in part.

       I write separately in this case because I concur with part of the majority’s analysis
and disagree with other parts of it.

       I am pleased to concur in the majority’s adoption of the Herring good-faith
exception to the exclusionary rule.

       Unfortunately, I must respectfully dissent from the majority’s conclusion that
neither arrest in this case comes within the good-faith exception. After ostensibly
adopting Herring, the majority analyzes the facts in this case in a manner that is
inconsistent with the analysis in Herring. As explained below, the very facts in Herring
counsel an outcome different than that reached by the majority. I am concerned that the
majority’s analysis will leave trial courts uncertain as to whether this Court actually
adopted Herring and unclear on how to apply the good faith exception in future cases.

       In Herring v. United States, 555 U.S. 135 (2009), the Court addressed the good-
faith exception in the context of record-keeping errors by police. In that case, an
investigator with the Coffee County Sheriff’s Department was told by a dispatcher with
the Dale County Sheriff’s Department that Dale County computer records showed
defendant Herring as having an outstanding arrest warrant. A Coffee County police
officer then arrested Herring. A search incident to his arrest revealed methamphetamine
and a pistol in his possession. Herring, 555 U.S. at 137.

       Minutes later, the Dale County sheriff’s employee compared their computer record
with their physical warrants file and discovered that, five months earlier, the warrant
listed in the computer records had been recalled. Id. at 137-38. The Dale County
sheriff’s employee immediately called the Coffee County Sheriff’s Department to correct
the misinformation. By that time, however, Herring had already been arrested and
searched. Id. at 138.

       The record in Herring showed that the Dale County Sheriff’s Department
maintained physical files containing arrest warrants as well as computer records of those
warrants. “For whatever reason,” the Court said, those two files did not accurately
correspond. Id. at 138. This created a situation in which the dispatcher was unaware that
computer records she referenced in response to the Coffee County call were incorrect. Id.
at 137-38.

       In Herring, the fact that the recordkeeping system of the Dale County Sherriff’s
Department was internally inconsistent was not deemed by the Court to be reckless or
deliberate; it amounted to negligence. Id. at 144. The majority in the instant case
acknowledges that this was “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.’’” (quoting Herring, 555 U.S. at 140).

        The facts in this case are eerily similar to those in Herring. In Herring, records of
warrants were kept in two places; a physical file and a computer file, and those records
were inconsistent. Herring, 555 U.S. at 137-38. In this case, there were two records as
well; the barred list and the list containing the names of persons removed from the barred
list, both maintained by the Union City Police Department. As in Herring, those lists
were internally inconsistent. At the suppression hearing in Herring, an officer testified
that he never had reason to question information about a Dale County warrant, and both
warrant clerks testified that they could not remember a problem like this ever happening.
Id. at 147. Similarly, in the instant case, Lieutenant Dowell testified at the suppression
hearing in this case that “99 percent of the time, this [list] is correct and there’s no need
to go behind [the clerk].”

       As in Herring, Lieutenant Dowell’s unrebutted testimony shows that the error on
the police department list was in fact a “simple, isolated oversight or inadvertence,” State
v. Lowe, 552 S.W.3d 842, 860, i.e., mere negligence. Inexplicably, the majority simply
dismisses this proof by characterizing it as a “brief comment.”

       The pivotal question in Herring was whether flawed recordkeeping within a police
department triggered the exclusionary rule when inaccurate information from that flawed
system was communicated to and relied upon by the officer who arrested the defendant.
The same question is presented in the instant case. Herring concluded that the arresting
officer was without fault, and that the conduct of the Dale County Sheriff’s Department
amounted to mere negligence. The majority in the instant case also finds the arresting
officer was without fault. Nevertheless, despite the similarity in the facts, the majority in

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this case concludes that the conduct of the Union City Police Department was
“sufficiently deliberate” to trigger the exclusionary rule, “the kind of ‘systemic error or
reckless disregard of constitutional requirements’ against which Herring cautioned.”
(quoting Herring, 555 U.S. at 144, 147)

       What raises the inaccurate police recordkeeping in this case to that level? Instead
of a fulsome explanation, the majority in this case engages in overstatement, leveraging
an isolated error into a “systematic” one by describing an omission on a list as “a system
inherently flawed by the maintenance of separate lists and the lack of any regular process
by which to reconcile the two.”1 From this the majority arrives at the rather remarkable
conclusion that the Union City police department engaged in “reckless” or even
“deliberate” misconduct.

        The pertinent facts in this case are indistinguishable from those in Herring.
Herring involved two files on warrants; the error in the computer records was not caught
until the physical file was checked. In the instant case, the error on the barred list was not
caught until the other list was checked. As in Herring, nothing in this record would
support a conclusion that the omission was “recurring,” nor did the trial court make any
finding to that effect.2

        The majority points to the fact that almost five years elapsed in this case before the
error was caught, as opposed to five months in Herring, as further indication that this was
“systematic” error. Quite the opposite; coupled with Lieutenant Dowell’s testimony that
the lists were correct 99% of the time, the longer length of time before discovery of the
error in this case shows even more emphatically that the error was “isolated negligence
attenuated from the arrest.” See Herring, 555 U.S. at 137.

       Moreover, the majority appears to say that Herring is not applicable in this case
because here, unlike Herring, the inaccurate information was maintained within the same
police department to which it was later communicated. That is a distinction without a
difference.3 As the majority acknowledges, nothing in Herring indicates that the

        1
         The obvious question arises, what if there had been only one list, and it contained an inadvertent
omission? Under the majority’s analysis, would that too have constituted a “system inherently flawed”
amounting to “reckless” or “deliberate” misconduct?
        2
          The fact that Justice Lee approves of the majority’s analysis of the facts in her separate opinion
proves the point. In her separate opinion, Justice Lee asserts that this Court should apply the exclusionary
rule to police errors that are merely negligent and “reject the Herring exception.” It is unsurprising, then,
that she would praise the majority’s analysis as “a good roadmap for trial courts,” since the majority
applies the exclusionary rule to a police error that was merely negligent, consistent with rejection of the
Herring exception.
        3
         The majority refers to “ease of access to information within the same department” as the reason
why this distinction in the facts is significant. This is slightly puzzling. In Herring, as in this case, both
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Supreme Court intended such an interpretation of the exclusionary rule. An isolated
internal inconsistency in records is still mere negligence, whether the isolated inaccuracy
is in the records of the same police department or a neighboring one.

       To be sure, Herring is clear that not “all recordkeeping errors by the police are
immune from the exclusionary rule. . . . If the police have been shown to be reckless in
maintaining a warrant system, or to have knowingly made false entries to lay the
groundwork for future false arrests, exclusion would certainly be justified under our cases
should such misconduct cause a Fourth Amendment violation.” Id. at 146.4 But the
record in this case contains no indication of either recklessness or deliberate falsification.
As in Herring, “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).

       The majority’s application of the collective knowledge doctrine muddles the
picture even more. The “collective knowledge” or “fellow officer” doctrine is generally
understood to allow the corporate or collective knowledge of an officer, obtained from
other reliable sources, to establish reasonable suspicion or probable cause for a stop or
arrest. The United States Supreme Court first discussed this doctrine in the context of
probable cause to support an arrest. See Whiteley v. Warden, 401 U.S. 560 (1971). The
Court extended the doctrine to encompass reasonable suspicion to briefly detain a person
in an attempt to obtain further information in United States v. Hensley, 469 U.S. 221
(1985). In both cases, the collective knowledge doctrine was applied in a permissive
manner. Likewise, this Court has also historically applied the collective knowledge
doctrine in a permissive manner. See State v. Clayton, 535 S.W.3d 829, 849 (Tenn.
2017); State v. Bishop, 431 S.W.3d 22, 36 (Tenn. 2014) (“When determining whether the
police possessed probable cause, the courts should consider the collective knowledge that
law enforcement possessed at the time of the arrest, provided 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

of the lists in question were housed within the same department. In Herring, unlike this case, the
arresting officer was in a neighboring county police department. However, in neither case was the error
caught by the arresting officer. Consequently, whether or not the arresting officer is in the same police
department as the erroneous records would appear to make no difference.
        4
          Two years later, the Court reaffirmed Herring in Davis v. U.S., 564 U.S. 229 (2011), where the
Court reiterated that “[w]hen the police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for
Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting
costs.” Id. at 238 (citing Herring, 555 U.S. at 144). “But when the police act with an objectively
‘reasonable good faith belief’ that their conduct is lawful, or when their conduct involves only simple,
‘isolated’ negligence, the “‘deterrence rationale loses much of its force,’” and exclusion cannot ‘pay its
way.’” Id. at 238 (internal citations omitted).


                                                     -4-
information or when one officer directs another officer to act.”); State v. Echols, 382
S.W.3d 266, 278 (Tenn. 2012) (the existence of probable cause depends upon the
accumulated information known to law enforcement only if there exists a sufficient nexus
of communication between the arresting officer and another officer with knowledge of
the information in question).

       Relying on People v. Ramirez, 668 P.2d 761(Cal. 1986), the majority would now
apply the collective knowledge doctrine in a prohibitive fashion, relying on language in
Ramirez stating: “The ‘fellow officer’ or ‘collective knowledge’ rule cannot function
solely permissively, to validate conduct otherwise unwarranted; the rule also operates
prohibitively, by imposing on law enforcement the responsibility to disseminate only
accurate information.” Id. at 764-65.

       Importantly, the majority quotes with approval language from Ramirez that
automatically imputes to the arresting officer knowledge of the law enforcement
agency’s clerical error, regardless of whether the error is isolated and inadvertent: “[W]e
cannot permit the arresting officer to rely with impunity on his fellow officers’ errors of
omission, but must impute their accurate knowledge to him.” Id. Ramirez, then, follows
a strict standard not allowing for any assessment of the level of fault regarding the
inaccurate information; if law enforcement records contain an error, knowledge of the
error is automatically imputed to the arresting officer, and the exclusionary rule is
invoked.5

       Ramirez was decided long before Herring. The Court in Herring expressly
considered the actions of all of the officers involved, in both Coffee County and Dale
County, but its analysis on this issue does not resemble the approach now adopted by the
majority in this case. Herring explicitly determined that the investigator from Coffee
County did not act improperly by relying on the inaccurate information and that the
employees from the Dale County Sherriff’s Office were merely negligent—not reckless
or deliberate—in failing to update the computer with accurate arrest warrant information.
Herring, 555 U.S. at 140. Herring specifically rejected the Ramirez approach now
apparently embraced by the majority, stating that defendant Herring’s “claim that police
negligence automatically triggers suppression cannot be squared with the principles
underlying the exclusionary rule, as they have been explained in our cases.” Id. at 147.



        5
          Similarly, the majority quotes with approval an assertion in Defendant McElrath’s brief that also
would invoke the exclusionary rule when an arrest is based on flawed law enforcement information,
regardless of the level of fault: “[T]o 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.”
(Emphasis added).


                                                    -5-
      At least one California appeals court has recognized that the approach in Ramirez,
adopted by the majority herein, is not consistent with Herring:

       In Ramirez, the court suppressed evidence from a booking search after it
       was determined that the warrant in the computer system providing the basis
       for the defendant’s arrest had been recalled months earlier. Not only does
       [People v.] Troyer, supra, 51 Cal.4th [599] at page 613, 120 Cal.Rptr.3d
       770, 246 P.3d 901 [(2011)], instruct that we must look to what the officers
       knew at the time of the search, but it would appear subsequent United
       States Supreme Court precedent has entirely undermined Ramirez’s
       efficacy. (See Herring v. United States (2009) 555 U.S. 135, 146–148, 129
       S.Ct. 695, 172 L.Ed.2d 496 [holding that exclusionary rule suppression
       should not apply where law enforcement personnel were negligent in
       failing to expunge from their computer system a warrant that led to the
       defendant’s arrest and a search incident thereto].)

People v. Pou, 216 Cal. Rptr. 3d. 920, 928 n.3 (2017) (alterations in original).

      In the face of Ramirez’s inconsistency with Herring, the majority nevertheless
approves the language in Ramirez that automatically imputes to the arresting officer
knowledge of a law enforcement clerical error, even when the error is isolated and
inadvertent. Does the majority expect trial courts applying its ruling to do the same?

        As the Supreme Court reiterated in Herring, 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.” Herring, 555 U.S. at 143 (internal citations omitted). The majority points
to no evidence in this record showing that Officer Cummings knew, or could be charged
with knowing, that the stop and subsequent search of the defendant was unconstitutional
under the Fourth Amendment. The error of the Union City Police Department arose
“from nonrecurring and attenuated negligence” and “is thus far removed from the core
concerns that led” to the adoption of the exclusionary rule. Id. at 144. “Where the police
conduct was no more intentional or culpable than this,” the exclusionary rule should not
work to suppress the evidence found on the defendant. Id.

       Since the majority’s analysis of the facts in this case is at odds with Herring’s
analysis of strikingly similar facts, I do not know how trial courts are to apply this
Court’s ruling going forward. Did the majority actually adopt Herring, or did it adopt
something else? We must all wait and see.




                                            -6-
       Accordingly, I concur in the majority’s adoption of the Herring good faith
exception, but I respectfully dissent from the majority’s retreat from Herring in its
conclusion that neither arrest in this case comes within the good-faith exception.




                                       ______________________________
                                       HOLLY KIRBY, JUSTICE




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