[JURIST] The US Supreme Court [official website; JURIST news archive] heard oral arguments Tuesday in three cases, including two raising issues of criminal procedure. In Herring v. United States [Cornell LII backgrounder; merit briefs], 07-513, the Court will decide whether evidence seized during a search incident to an arrest must be suppressed when the sole premise for the arrest was information later found to be negligently provided by another law enforcement agency. More specifically, the Court must decide whether using the evidence found incident to such an arrest would violate Fourth Amendment [text] protections against unreasonable search and seizure. The US Court of Appeals for the Eleventh Circuit ruled [opinion, PDF] last July that such suppression would not significantly deter the law enforcement agency providing the misinformation, because it would affect only the agency conducting the arrest. Representing the petitioner during Tuesday's arguments [transcript], Pamela Karlan told the justices:

Our view is, just as is true with respect to probable cause, the fact that 99 percent of a department's arrests are with probable cause doesn't mean that when they arrest someone without probable cause you say, well, you get one bite at the apple or a sort of "good enough for government work" theory.

Deputy Solicitor General Michael Dreeben countered that "[i]n this case, where nothing is shown other than a negligent and isolated clerical error in the maintenance of warrants, there is no showing that suppression of evidence will achieve … appreciable deterrence."

The Court also heard arguments [transcript] Tuesday in Arizona v. Gant [Cornell LII backgrounder; merit briefs], 07-542, presenting the question of whether "the Fourth Amendment require[s] law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted after the vehicle's recent occupants have been arrested and secured." Arizona is appealing an Arizona Supreme Court ruling [PDF text] that Rodney Joseph Gant's constitutional rights were violated when police searched his car after he was handcuffed and seated in a police car.

The final case argued [transcript] Tuesday was Kennedy v. Plan Administrator for DuPont Savings and Investment Plan [backgrounder; merit briefs], 07-636, where the Court will consider whether the Qualified Domestic Relations Order (QDRO) provision [text; DOL backgrounder] of the Employee Retirement Income Security Act (ERISA) is the exclusive means by which to waive one's right to a divorcing spouse's pension benefits. The US Court of Appeals for the Fifth Circuit ruled that the provision does not permit a waiver at common law.