Tennessee Supreme Court Adopts Federal Good-Faith Exception to the Exclusionary Rule, But Affirms Exclusion of Evidence in Drug-Related Case

March 12, 2019

In a divided opinion, the Tennessee Supreme Court has adopted a good-faith exception similar to one set forth by the United States Supreme Court in Herring v. United States, which held “that when police mistakes are the result of negligence . . . rather than systemic error or reckless disregard of constitutional requirements,” the evidence is not subject to the exclusionary rule.  

A Union City police officer arrested the defendant, Jerome Antonio McElrath, without a warrant, for being present on property owned by the housing authority because the defendant was on a list maintained by the Union City Police Department of individuals who had been “barred” from the property, as confirmed by the dispatcher.  Upon performing a search incident to arrest, the officer seized marijuana from the defendant.  Nineteen days later, the same officer arrested the defendant on the subject property based on the same list and again seized marijuana from the defendant.  As a result of the defendant’s arrests, he was charged with two drug offenses, a Class E felony and a Class A misdemeanor, in both cases. 

The defendant filed motions to suppress the evidence against him based on the warrantless searches.  At the hearing, evidence was adduced that the defendant had been barred from housing authority property in 2007 but that he had requested to be removed from the list in 2010.  The request was granted, and he was thus supposed to have been removed from the list almost five years before the arrests in this case.  The police department also kept a separate list, a “remove from barred” list.  The defendant’s name appeared on that list, as well. 

The trial court concluded that although the arresting officer did nothing wrong, the Tennessee Supreme Court had not yet adopted the good-faith exception espoused in Herring, which could have allowed admission of the evidence based on the good faith of the officer acting on erroneous information.  Therefore, the trial court granted the defendant’s motions.  The Court of Criminal Appeals affirmed the trial court’s ruling on the same grounds. 

The Tennessee Supreme Court granted the State’s permission to appeal in this case to determine whether, as a matter of state law, Tennessee should adopt a good-faith exception similar to Herring, and if so, whether it should apply under these facts to permit introduction of evidence that was seized as a result of a law enforcement officer’s reasonable reliance on incorrect information in a database maintained by the same police department.

After reviewing cases from other jurisdictions, the development of the federal good-faith exception to the exclusionary rule, and Tennessee’s relevant case law, the majority, joined in part by Justice Holly Kirby, held that Tennessee would adopt a good-faith exception and that negligent police mistakes in recordkeeping, as opposed to those that resulted from systemic error or reckless disregard for constitutional requirements, would not prevent the obtained evidence from being admissible in court. 

However, in comparing the facts of Herring with the facts of these cases, the majority, joined in part by Justice Sharon G. Lee, determined that the Union City’s record-keeping system was so fraught with errors that the evidence obtained should not benefit from application of the good-faith exception. 

In her separate opinion concurring in part and dissenting in part, Justice Lee dissented from the adoption of an exception to the exclusionary rule to excuse police negligence that results in a violation of a citizen’s constitutional right to be free from unreasonable searches and seizures.  In Justice Lee’s view, excusing police carelessness erodes the public’s trust in the judicial system because the courts have a responsibility to protect citizens’ constitutional rights. Justice Lee agreed that the exception should not apply in this defendant’s case because his arrests were caused by long-standing errors in police records due to an inherently flawed recordkeeping system.

In her separate opinion, Justice Kirby concurred in adoption of the good faith exception but dissented from the majority’s conclusion that the defendant’s arrest did not come within the exception. She contended that the police error in this case, as in Herring, amounted to mere negligence, and argued that the majority’s analysis was inconsistent with the U.S. Supreme Court’s analysis in Herring. For this reason, Justice Kirby dissented from the majority’s decision to exclude the evidence. 

To read the majority opinion in State v. McElrath, authored by Justice Roger Page, and the separate opinions authored by Justices Lee and Kirby, visit the opinions section of TNCourts.gov.