Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence

Abstract

The Supreme Court’s 2009 decision in Herring v. United States has prompted both criticism and puzzlement concerning the source, meaning, and implications of the new culpability-based framework that it announced for the Fourth Amendment exclusionary rule. This Article proposes that Herring may be better understood not solely by reference to the exclusionary rule precedents to which the majority opinion claims fidelity, but rather in the context of the important and largely unexamined influence that constitutional tort doctrine has had in shaping exclusionary rule jurisprudence. That influence has been driven by the interrelated processes of borrowing and convergence – the former, a deliberate tactic employed when the Court in United States v. Leon drew from qualified immunity jurisprudence to define the contours of the exclusionary rule’s good faith exception; the latter, a gradual and progressive effect of that initial borrowing, whereby first the good faith exception, and eventually other areas of exclusionary rule doctrine, have increasingly drawn from and grown aligned with constitutional tort doctrine. The Article identifies and traces these dynamics of borrowing and convergence in the arena of the exclusionary rule, illuminating the specific mix of historical contingency, adjudicatory pragmatism, and, perhaps most interestingly, tactical considerations that drove the influence of constitutional tort doctrine on the exclusionary rule generally, in Herring more specifically. This examination affords greater understanding of the source, contours, and likely trajectory of the exclusionary rule framework that Herring enunciates. Moreover, close examination of borrowing and convergence in this particular context provides a basis for mapping a more systematic understanding of why and how disparate strands of doctrine come to cross-fertilize – in the particular realm of criminal procedure, in the broader arena of constitutional remedies, and in the law more generally. The story * Assistant Professor, The University of Texas School of Law. 2 TRAWLING FOR HERRING of these dynamics in the exclusionary rule context offers a largely cautionary tale of the risks that convergence poses to substantive legal standards as well as jurisprudential values such as transparency, particularly in constitutional remedial