A Law.com/National Law Journal article Monday relayed “the First Circuit Court of Appeals on Nov. 22. in U.S. v. Thomas agreed with defendant Michael Thomas that authorities violated his Fourth Amendment rights when they obtained his DNA during a Postal Inspection Service’s prior investigation of suspicious mail sent to his former school. Thomas was never charged in that case, and the investigation was closed in 2006, but the First Circuit panel none-the-less upheld U.S. District Judge D. Brock Hornby of Maine’s ruling in 2011 not to suppress that evidence and Thomas was subsequently sentenced last year to 71 months in prison on charges related to threatening the lives of various politicians.
Chief Judge Sandra Lynch of the First Circuit wrote the opinion, joined by judges William J. Kayatta Jr. and O. Rogeriee Thompson, stating in pertinances:
“… While we agree with Thomas that the method of obtaining his DNA, under Maryland v. King, 133 S. Ct. 1958(2013), violated the Fourth Amendment, we affirm, under Herring v. United States, 555 U.S. 135 (2009), the district court's denial of Thomas's motion to suppress in 2011.
“Relying on Herring v. United States, supra, the court concluded that the exclusionary rule should not be applied because there was no flagrant or deliberate police misconduct at any point, deterrent value, given this absence. The costs of exclusion, the court reasoned, outweighed the benefits.
“The exclusionary rule is ‘designed to safeguard Fourth Amendment rights generally through its
deterrent effect.’ United States v. Calandra, 414 U.S. 338, 348 (1974); see Davis v. United States, 131 S. Ct. 2419, 2426 (2011) ("The [exclusionary] rule's sole purpose . . . is to deter future Fourth Amendment violations." (emphasis added)). Exclusion is not an automatic consequence of a Fourth Amendment violation, but rather is available only where the benefits of deterring the police misconduct that produced the violation outweigh the costs of excluding relevant
evidence. Herring, 555 U.S. at 141.
“Importantly, in Herring, a case involving a negligent mistake, the Court held:
'To trigger the exclusionary rule, police conduct must be sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. 555 U.S. at 144.'
“There is no serious argument presented that Herring's deterrence-based analytical standards are limited to cases of error produced by negligence, and we apply those standards here.
“Significantly for our purposes, the Herring criteria also include consideration of whether thepolice error is 'attenuated' from the events that occur following the error. 'Attenuatio' ispresented by Herring as a necessary component of its deterrence analysis. Where an error "arises from nonrecurring and attenuated negligence," the Court held, it is "far removed from the core concerns that led us to adopt the [exclusionary] rule in the first place," and because the resulting deterrent value is necessarily minimal, exclusion is not warranted. 555 U.S. at 144.”