Herring v. US
Concerning a Faulty Arrest Based on Incorrect Information in a Government Database
Defendant Bennie Dean Herring was searched and arrested without a warrant based on incorrect information contained in a government database. After he was indicted, Herring petitioned to suppress all evidence gathered incident to his unlawful arrest. The district court ruled against him, and the ruling was affirmed by the Eleventh Circuit Court of Appeals.
EPIC has a history of fighting the problems that arise with inaccurate government databases, and accordingly, filed a “friend of the court” brief in the case. Citing a dramatic expansion of law enforcement databases, and numerous reports detailing errors in such databases, EPIC urged the Court to exclude evidence stemming from a clerical mistake made by law enforcement in order to safeguard privacy in an era of rapid technological change. In a 5-4 decision, the Court ruled in favor of the Government, holding that the exclusionary rule does not extend to evidence gathered as a result of police negligence.
- California Court Strikes Down DNA Collection Law: A state appeals court in California has struck down a state law that requires collection of DNA from people arrested on felony charges. The California court ruled that DNA collection by a cheek swab is an unreasonable search and seizure prohibited by the state's constitution. "The California DNA Act intrudes too quickly and too deeply into the privacy interests of arrestees," wrote the court. The appeals court also said that the U.S. Supreme Court's ruling in Maryland v. King, which upheld a similar law in Maryland, did not apply in this case because of significant differences between each state's DNA collection laws. EPIC has participated as amicus in several cases concerning the collection of DNA. In Maryland v. King, EPIC argued that the government collection of DNA opens the door to misuse and threatens personal privacy. For more information, see EPIC: Maryland v. King, EPIC: Maryland v. Raines, EPIC: Kohler v Englade, EPIC: US v. Kincade, EPIC: Herring v. US, EPIC: Comments on TSA Biometric Systems, and EPIC: Genetic Privacy. (Dec. 4, 2014)
- Divided Supreme Court Upholds Strip Search of those Arrested for Minor Offenses: In a 5-4 opinion by Justice Kennedy, the Supreme Court held that the suspicionless strip search of a prison detainee does not violate the Fourth Amendment. The case, Florence v. Board of Chosen Freeholders, involved a wrongful arrest based on an invalid warrant. Justices Roberts and Alito filed concurring opinions noting potential exceptions to the Court's general rule, such as when a detainee will be kept separate from the general prison population. Justice Breyer's dissenting opinion argued that strip searches are an "affront to human dignity and to individual privacy," and questioned whether they are necessary given other, less intrusive, screening methods available. EPIC has opposed the use of airport body scanners, which collect images of naked air travelers, and filed an amicus brief challenging a wrongful arrest based on errors in a Government database. For more information, see: EPIC: Herring v. US. (Apr. 4, 2012)
- Supreme Court Permits Arrest Based on Police Database Error, EPIC Amicus Brief Cited in Dissent: In a 5-4 opinion, the Supreme Court has held that the police may use false information contained in a police database as the evidence for an arrest. Chief Justice Roberts 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.'" Justice Ginsburg, writing for four of the Justices in dissent, said that "negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means." EPIC filed a friend of the court brief urging the Justices to ensure the accuracy of police databases, on behalf of 27 legal scholars and technical experts and 13 privacy and civil liberty groups. The EPIC brief was cited by the Justices in dissent. See EPIC Herring v. US ("Concerning a Faulty Arrest Based on Incorrect Information in a Government Database"). (Jan. 14, 2009)
- UPDATED - Supreme Court Hears Argument in Police Database Errors Case.Today, the U.S. Supreme Court heard arguments in Herring v. United States. The case will determine whether an arrest based on inaccurate information in a criminal justice database should be upheld. EPIC filed a "friend of the court" brief (pdf) in the case, urging the Justices to ensure the accuracy of police databases. The EPIC brief was filed on behalf of 27 legal scholars and technical experts and 13 privacy and civil liberty groups. EPIC explained how government databases are becoming increasingly unreliable, according to the government's own studies and urged the Court to "ensure an accuracy obligation on law enforcement agents who rely on criminal justice information systems." The amici warned that, "to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system." Transcript. For more, see EPIC's Herring v. U.S. page. (Oct. 7)
- Supreme Court To Hear Argument in Police Database Errors Case.Tomorrow, the U.S. Supreme Court will hear arguments in Herring v. United States. The case will determine whether an arrest based on inaccurate information in a criminal justice database should be upheld. EPIC filed a "friend of the court" brief (pdf) in the case, urging the Justices to ensure the accuracy of police databases. The EPIC brief was filed on behalf of 27 legal scholars and technical experts and 13 privacy and civil liberty groups. EPIC explained how government databases are becoming increasingly unreliable, according to the government's own studies and urged the Court to "ensure an accuracy obligation on law enforcement agents who rely on criminal justice information systems." The amici warned that, "to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system." (Oct. 6)
- EPIC, Technical Experts, Legal Scholars, and Civil Liberties Organizations Urge Accuracy In Police Databases. EPIC today filed a "friend of the court" brief (pdf) in the United States Supreme Court, urging the Justices to ensure the accuracy of police databases. The brief was filed on behalf of 27 legal scholars and technical experts and 13 privacy and civil liberty groups. In Herring v. US, the Court will be asked to determine whether an arrest based on inaccurate information in a criminal justice database should be upheld. EPIC explained how government databases are becoming increasingly unreliable, according to the government's own studies and urged the Court to "ensure an accuracy obligation on law enforcement agents who rely on criminal justice information systems." The amici warned that, "to permit a good faith reliance on data that is inaccurate, incomplete, or out of date will actually exacerbate the problem and increase the likelihood of unfair treatment in the criminal justice system." (May 16)
- Supreme Court To Review Decision on Faulty Arrest. The US Supreme Court today agreed to consider Herring v. United States (pdf), a challenge to an arrest based on inaccurate information in a government database. The Court will decide whether to suppress the evidence obtained. In a 1995 opinion, Justice O'Connor wrote, "In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities." EPIC has also highlighted problems with inaccurate government databases in formal comments to federal agencies, as well as a 2003 online campaign urging the reestablishment of accuracy requirements for the FBI's National Crime Information Center, the nation's largest criminal justice database. (February 19, 2008)
In Herring v. US, the police searched and then arrested Bennie Dean Herring based on incorrect information in a government database. He was illegally arrested and searched even though he told the officers that there was no arrest warrant, and no officer had seen or could produce a copy of the arrest warrant.
After he was indicted, Herring petitioned the district court to suppress the evidence gathered incident to his unlawful arrest, arguing the exclusionary rule prevented the use of such evidence. But the district court rule against him. Herring then appealed to the Eleventh Circuit Court of Appeals, which affirmed (pdf) the district court's ruling. Herring then petitioned for cert. to the US Supreme Court. The US Supreme Court agreed on February 19, 2008 to consider the case and decide whether to suppress the evidence obtained.
In the petition to the Supreme Court, Herring argued, "The question of how to apply the Fourth Amendment's exclusionary rule in cases involving law enforcement's clerical negligence is a recurring and important one in the criminal justice system," noting that state and federal courts are divided over the issue. Herring cites to five state supreme courts that have said, "that evidence that police officers seize in reliance on clerical errors must be suppressed when those errors are committed not by court employees but by officers in other police departments or other 'adjuncts to the law enforcement team.'" Herring also has said, "For over ninety years, this Court has enforced the exclusionary rule every time the government in a federal prosecution has sought to rely on evidence that it obtained as a direct result of illegal law enforcement conduct. Nothing in Evans undercuts this unbroken line of authority. To the contrary, Evans emphasized at every turn that court employees, unlike 'adjuncts of the law enforcement team engaged in the often competitive enterprise of ferreting out crime,.., have no stake in the outcome of particular criminal prosecutions.' It thus remains appropriate and necessary to enforce the exclusionary remedy when employees of any law enforcement agency working in collaboration with arresting officers negligently make clerical errors that trigger groundless arrests and searches that arresting officers would not otherwise have undertaken -- especially when, as here, there is no other remedy or deterrent measure that is available" (internal citation omitted).
The Supreme Court heard oral argument in the case on October 7, 2008. EPIC Advisory Board Member Professor Pamela S. Karlan argued on behalf of Herring.
It is well-documented that government databases are filled with errors. In a 1997 report and a 2002 follow-up review, the Inspector General of the Department of Justice found that data from the Immigration and Naturalization Service (the predecessor of U.S. Citizenship and Immigration Services), was unreliable and "seriously flawed in content and accuracy." In August 2005, the Government Accountability Office investigated (pdf) and found myriad errors in information from Department of Homeland Security databases. A December 2006 report (pdf) by the Social Security Administration's Office of Inspector General found accuracy problems in databases of Citizenship and Immigration Services and Social Security Administration. The Inspector General estimated (pdf) that about 17.8 million records in the Social Security Administration's Numerical Identification File ("NUMIDENT") have discrepancies with name, date of birth or death, or citizenship status. About 13 million of these incorrect records belong to U.S. citizens, he said. In an October 2007 opinion (pdf) granting a temporary restraining order enjoining the Department of Homeland Security from implementing a new "no-match" employment eligibility verification proposal, the federal judge noted "the government recognizes, the no-match letters are based on SSA records that include numerous errors." And these are just the government databases; as explained in the next section, commercial database are also riddled with mistakes.
There have been increasing efforts by federal agencies to exempt themselves from Privacy Act of 1974, 5 U.S.C. 552a, provisions that require record accuracy. For example, the Department of Homeland Security seeks exemptions from the requirement that the agency assure the reliability of personal data for its intended use in the Automated Targeting System. This system creates secret, terrorist "risk assessments" of tens of millions of U.S. citizens and foreign visitors annually. The agency seeks these exemptions even though the Automated Targeting System uses data from erroneous government watchlists. A review (pdf) of the Terrorist Screening Center by the Justice Department's Inspector General found that the government's watchlists of known or suspected terrorists remain filled with errors that the Inspector General said could obstruct the capture of terrorists. The Inspector General said, "The results of our testing of watchlist records, as well as the TSC finding that many records involved in its redress reviews required modification or removal, indicate a deficiency in the integrity of watchlist information." He explained this deficiency significantly affects travelers because "inaccurate, incomplete, and obsolete watchlist information increases the chances of innocent persons being stopped or detained during an encounter because of being misidentified as a watchlist identity." Even with knowledge of these deficiencies, the Department of Homeland Security still seeks to exempt the Automated Targeting System from the accuracy requirements of the Privacy Act.
Reports referenced in this section:
- Office of Inspector Gen., Dep't of Justice, Immigration and Naturalization Service Monitoring of Nonimmigrant Overstays, Rept. No. I-97-08 (Sept. 1997)
- Office of Inspector Gen., Dep't of Justice, Follow-Up Report on INS Efforts to Improve the Control of Nonimmigrant Overstays, Rept. No. I-2002-006 (Apr. 2002)
- Office of Inspector Gen., Dep't of Justice, Immigration and Naturalization Service's Ability to Provide Timely and Accurate Alien Information to the Social Security Administration, Rept. No. I-2003-001 (Nov. 2002) (PDF)
- Gov't Accountability Office, Immigration Enforcement: Weaknesses Hinder Employment Verification and Worksite Enforcement Efforts, GAO-05-813 (Aug. 2005) (PDF)
- Inspector Gen., Audit Div., Dep't of Justice, Audit Report No. 05-27: Review of the Terrorist Screening Center (June 2005) (PDF)
- Office of Inspector Gen., Soc. Sec. Admin, Congressional Response Report: Accuracy of the Social Security Administration's Numident File, A-08-06-26100 (Dec. 18, 2006) (PDF)
There has been an increase in information sharing not just among government agencies, but between federal, state, local, tribal and commercial entities. In October 2005, President George W. Bush issued Executive Order 13388 (pdf), which created the Information Sharing Environment among these many entities. An outgrowth of this has been "fusion centers," which have received $380 million in federal grants and millions more from state governments. There are 43 current and planned fusion centers in the U.S., and some states have more than one, according to (pdf) the Congressional Research Service. The expansion of fusion center goals and increasing interaction with federal and private sector entities leads to a massive accumulation of data, raising questions of possible misuse or abuse. The Department of Homeland Security (DHS) seeks to create a "national network" of local and state fusion centers, tied into DHS's "day-to-day activities." This national network combined with the Department of Homeland Security's plan to condition grant funding based on fusion center "compliance" with the federal agency's priorities inculcates DHS with enormous domestic surveillance powers and evokes comparisons to the publicly condemned domestic surveillance program COINTELPRO.
"Fusion centers" collect an enormous amount of data from law enforcement agencies, "public safety components, including fire, health, transportation, agriculture, and environmental protection," and private sector organizations, according to (pdf) the Department of Justice. This increased data dissemination is problematic for many reasons, including the fact that fusion centers use erroneous information culled from government and commercial databases. The problems with government databases are detailed above. Private sector databases are also full of mistakes. For example, when a news reporter looked up his file on databroker Intellius.com, he found the record said he was charged with child molestation (he wasn't) and that he had a close male relative who was convicted of manslaughter (the reporter had never even heard of the man). There are numerous errors in the records of databroker ChoicePoint, used by the FBI and IRS. A man bought his ChoicePoint record and found that the file showed he had died in 1976. Another man's report included numerous crimes that he never committed. "In Florida I'm a female prostitute (named Ronnie); in Texas I'm currently incarcerated for manslaughter," according to the man. Also, "In New Mexico I'm a dealer of stolen goods. Oregon has me as a witness tamperer. And in Nevada -- this is my favorite -- I'm a registered sex offender."
Not only does erroneous data affect citizens, but it also harms security investigations by creating confusion and mistakes. Therefore, it is paramount that government and commercial entities follow the Fair Information Practices and apply all the Privacy Act requirements of accuracy, purpose limitation, notice, access, correction, and judicially enforceable redress.
EPIC has highlighted problems with inaccurate government databases in formal comments (pdf) to federal agencies and a 2003 online campaign urging the reestablishment of accuracy requirements for the FBI's National Crime Information Center (NCIC), the nation's largest criminal justice database. In 2003, the Justice Department administratively discharged the FBI of its statutory duty to ensure the accuracy and completeness of the over 39 million criminal records maintained in the NCIC. The Privacy Act of 1974 requires the FBI to make reasonable efforts to ensure the accuracy and completeness of the records in the NCIC system. EPIC and 85 other organizations campaigned against this change, stating that, "This action poses significant risks to privacy and effective law enforcement. The NCIC system provides over 80,000 law enforcement agencies with access to data on wanted persons, missing persons, gang members, as well as information about stolen cars, boats, and other information."
Also in 2003, EPIC filed an amicus brief with the Supreme Court in Hiibel v. Sixth Judicial District Court of Nevada, a case in which the Court determined whether an individual may refuse to identify himself to police when there is no probable cause to arrest. EPIC's amicus brief (pdf) discusses how existing information systems, such as the NCIC and the Multi-State Anti-Terrorism Information Exchange (MATRIX), may become systems of public surveillance though they are filled with errors. EPIC also has testified about the need to ensure the accuracy and completeness of such databases, such as in 2007 testimony (pdf) about E-Verify (an employment eligibility verification system that uses information from databases that the Social Security Administration's Inspector General has said (pdf) are riddled with mistakes) and 2007 testimony (pdf) about the REAL ID national identification system (which would "verify" the identities of state driver's license and ID card holders by searching erroneous government databases).
Supreme Court (all PDFs)
- Court Opinion (January 14, 2009)
- Transcript of oral argument (October 7, 2008)
- "Friend-of-the-court" Brief by EPIC, 27 Legal Scholars and Technical Experts and 13 Privacy and Civil Liberty Groups (May 16, 2008)
- Brief for Petitioner (May 9, 2008)
- Joint Appendix (May 9, 2008)
- Orders list granting cert (February 19, 2008)
- Petitioner's reply (January 30, 2008)
- Brief in opposition (January 18, 2008)
- Petition for certiorari (Petitioner is Herring) (October 11, 2007)
Eleventh Circuit Court of Appeals (PDFs)
- Court opinion (July 17, 2007)
District Court (PDF)
- Opinion (October 26, 2005)
- EPIC: Utah v. Strieff
- Transcript of oral argument in Herring v. US, No. 07-513.
- Supreme Court docket page for Herring v. US, No. 07-513.
- EPIC's page on Hiibel v. Sixth Judicial District Court of Nevada, a case in which the Supreme Court determined whether an individual may refuse to identify himself to police when there is no probable cause to arrest. EPIC's amicus brief (pdf) discusses how existing information systems, such as the National Crime Information Center (NCIC) and the Multi-State Anti-Terrorism Information Exchange (MATRIX), may become systems of public surveillance though they are filled with errors.
- EPIC's page on the 2003 online petition urging the reestablishment of accuracy requirements for the FBI's National Crime Information Center, the nation's largest criminal justice database.
- EPIC's page on Justice Sandra Day O'Connor's legacy, including 1995's Arizona v. Evans.
- EPIC's page on Secure Flight, a passenger prescreening system that relies on watchlists created from error-filled government databases.
- 1984 Supreme Court opinion in United States v. Leon.
- SCOTUSblog, a legal analysis blog, is following the case.
- Justices Say Evidence Is Valid Despite Police Error, New York Times, January 14, 2009.
- Supreme Court Argument Report: The Fourth Amendment, Thomas Jefferson and Barney Fife, Law.com, October 8, 2008
- High Court Mulls Reach of Fourth Amendment's 'Exclusionary Rule', American Constitution Society Blog, October 8, 2008
- Justices will hear case on evidence suppression, New York Times, February 20, 2008
- Supreme Court to review 'exclusionary rule' on evidence, Los Angeles Times, February 20, 2008
- Court to look at how evidence is obtained, United Press International, February 19, 2008
- Supreme Court to Hear Exclusionary Rule Case, ABAJournal Law News Now, February 19, 2008
- Court to Consider Suppression Case, Associated Press, February 19, 2008
- Supreme Court Takes Case on Evidence, New York Times, February 19, 2008
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Communications Law and Policy
Jerry Kang and Alan Butler