Today’s Supreme Court ruling in Herring v. U.S. provides yet another opportunity for us to put a bad ruling in perspective. Like most recent 4th Amendment cases decided by the Court, Herring is an unfortunate finding, but it’s not going to change our advice on handling police encounters.

Bennie Dean Herring was known to local police, who spotted him at the impound lot where he was retrieving an item from his impounded truck. An officer confirmed that Herring had a warrant in a neighboring county and arrested him, in the process discovering methamphetamine and a gun. Moments later, the officer learned that the warrant was erroneous, thus the arrest and subsequent search were invalid.

The Supreme Court found that because officers legitimately believed a warrant existed for Herring’s arrest, their actions were justified and not subject to the exclusionary rule, which prohibits the use of illegally obtained evidence. This is called the “good faith” doctrine, wherein police actions are upheld if officers believed they were acting legally (even if they were not).

The “good faith” doctrine is nothing new, so the Court’s decision isn’t particularly shocking. The Court argues that the exclusionary rule is intended to deter police misconduct and shouldn’t be applied here because the officers didn’t willfully do anything wrong. The dissent argues, and I agree, that the exclusionary rule is a perfectly appropriate means of deterring police agencies from keeping bad records that cause illegal arrests. If there’s no penalty for using bad information, then police have no incentive to keep their books in order. Worse yet, I could envision situations in which police manufacture “good faith” circumstances by preemptively withholding relevant facts from the arresting officers.

The exclusionary rule is vital to the interests of justice and we regret any ruling that reduces the citizen’s protection against illegally obtained evidence. That said, we hope the public will recognize that today’s decision is based on a specific set of circumstances and does not mean that police can now perform illegal arrests at will. The 4th Amendment continues to protect citizens against illegal searches, particularly in common scenarios such as searches that follow a refusal of consent. There’s no question that the Supreme Court is disturbingly reluctant to uphold 4th Amendment rights, but our right against unreasonable searches and seizures is still relevant in the vast majority of common police encounters. Knowing these rights remains your best and only defense when confronted by law enforcement.

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Flex Your Rights’ response to the new random search policy on D.C. public transportation may soon find us in court. The Washington Metro Area Transit Authority (WMATA) has threatened us with legal action due to our use of Metro’s "M" logo on our informational flyer about refusing random searches. Metro alleges that our use of the logo on the widely-distributed flyer constitutes a violation of their registered servicemark and has promised legal action if we do not destroy all remaining flyers and issue an apology by January 5th.

The 5th has now passed, and we have no intention of complying with Metro’s ill-conceived intimidation tactics. We’re well aware that the 1st Amendment protects "fair use" of trademarked material for the purpose of criticism. The ACLU of the National Capital Area has agreed to represent us in the event that Metro files a lawsuit. Our attorney Art Spitzer contacted Metro in a letter today, urging that the legal threats against us be promptly withdrawn to avoid an inevitable loss in court.

As controversy surrounding the random search program continues to escalate, Metro’s frivolous threat is just the latest in a series of bad choices by Metro dating back to the announcement of the program itself. Here’s a quick recap of what’s happened so far:

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Being on the blunt edge of technology, I’ve just subscribed to my first podcast. Created by rockstar attorney, David Clark (AKA: Smoove D.), the show celebrates the myriad reasons why the 4th Amendment, um, rocks. Enjoy!

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Our response to the new random search program on public transportation in DC is continuing to generate media hits, including a negative reaction to our work in The Washington Times.
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On Wednesday, Flex Your Rights brought together numerous allies, volunteers and friends to protest random searches on public transportation in the Nation’s Capital. The effort was aimed at voicing opposition to the new search policy, while educating the public about the 4th Amendment right to refuse police searches.

The event generated considerable media attention, including the Washington Post, the Washington CityPaper, and local ABC and NBC affiliates:
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