Kent Scheidegger even thinks "Herring may be setting the stage for the Holy Grail -- overruling Mapp v. Ohio," which extended the federal exclusionary rule to state courts. (That would be his "Holy Grail," btw, not mine.) He says that after Herring, arguably, "a defendant seeking to suppress evidence [must] establish not only that a Fourth Amendment violation occurred and no categorical exception applies, but also that there was ... 'deliberate, reckless, or grossly negligent conduct'." That would limit exclusion to an incredibly narrow class of cases.
Outside of federal court, for Texans, at least, the impact is much less profound. Robert Guest points out that Texas relies on our own state statutory exclusionary rule, not one created by federal courts.
So when you hear complaints that the exclusionary rule amounts to judges "legislating from the bench," that's a reference to the federal debate. In Texas, legislators crafted the rule back in 1925. The current version reads:
Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.Guest points out that the Texas Court of Criminal Appeals in 1999 already created the same loophole in Texas' exclusionary rule as SCOTUS just created in federal Fourth Amendment doctrine.
Tom Goldstein had expressed concern that Herring, for the first time, "extended the good faith exception to ordinary police conduct" (though Orin Kerr disagrees). Whatever the case, though, Texas' statute already has a "good faith" exception written into it that the CCA ruled allows evidence admitted from an arrest based on a recalled warrant - the identical circumstance that SCOTUS addressed in Herring.
So while the ruling will limit evidence exclusion in federal cases, for state cases, which involve the vast majority of police searches, the "new" extension of a good faith exception to police is mostly redundant - the Court of Criminal Appeals already went there years ago.
Herring also brought out more traditional, debates over whether the exclusionary rule is a viable public policy approach, regardless of whether it's created by the Legislature (as in Texas) or the federal courts. The National Review's Jonah Goldberg argued that "I don’t see why cops who break the rules intentionally or unintentionally should be punished by having objectively guilty criminals let loose on society."
To this, Instapundit Glenn Reynolds replied with a comment that almost precisely reflects my own view:
If the alternative is a constitutionally originalist approach that eliminates judicial-invented immunity for police and prosecutors, I'd gladly agree there'd be little need for an overt exclusionary rule. Such matters could be handled in the civil courts, as the founders intended. Short of that, however, eliminating the exclusionary rule would remove the only significant institutional check on certain types of official misconduct without creating a viable alternative to prevent abuse.
These are good arguments and I’d be happy to scrap the exclusionary rule and return to the framing-era approach that put the constable at risk for personal liability whenever there was an unreasonable search or arrest, unless he had a warrant, in which case the magistrate who issued the warrant might be at risk if the warrant was improperly issued. But modern doctrines of official immunity — which are basically judge-made, and a result of “judicial activism” of the first order — make that impossible. There’s no constitutional basis for immunity on the part of police or their supervisors; it’s just something judges think is a good idea. Nonetheless, it’s not going anywhere — as part of my efforts to get something done about no-knock raids, I was recently told that, even in the Democratic Congress, it’s not going to be possible to do anything about official immunity.Meanwhile, if you reward negligence, by letting cops who are negligent arrest people they’d otherwise be unable to, the cops — and, more importantly, their superiors, who might otherwise look bad if a guilty person is allowed to go free — wind up incentivized to be negligent. That increases the risk that innocent people will be subjected to unreasonable searches. In this imperfect world, the exclusionary rule is pretty much all we’ve got. But hey, if Jonah wants to join me in a campaign to get official immunity abolished or cut back, I’m ready.