IN THE SUPREME COURT OF TENNESSEE

AT JACKSON

April 4, 2018 Session

STATE OF TENNESSEE V. JEROME ANTONIO MCELRATH

Appeal by Permission from the Court of Criminal Appeals 

Circuit Court for Obion County

No. CC-15-CR-71; 72 Jeff Parham, Judge

No. W2015-01794-SC-R11-CD

No. W2015-01958-SC-R11-CD

(consolidated on appeal)

SHARON G. LEE, J., concurring in the suppression of evidence; dissenting from the 

adoption of an exclusionary rule exception for constitutional violations caused by 

careless police recordkeeping.

A Union City Police Department officer twice arrested and searched Jerome 

Antonio McElrath because of systemic and long-standing errors in the police 

department’s records. By stopping and searching McElrath without probable cause based 

on these errors, the police violated McElrath’s constitutional right to be free from 

unreasonable searches and seizures. I disagree with the majority’s adoption of an 

exception to the exclusionary rule to excuse negligent police recordkeeping. That said, I 

agree with the majority’s conclusion that the negligence exception does not apply here 

because of the police department’s systemically flawed recordkeeping process. The 

majority provides a good roadmap for trial courts to make the fact-intensive 

determination of whether isolated or systemic negligence caused the police error thus, 

whether the negligence exception applies. 

On April 8, 2015, McElrath was standing outside the Union City Housing 

Authority’s community center—a place he had a right to be. A police officer saw 

McElrath and believed he was barred from the Housing Authority’s property. The officer 

checked with the police department’s dispatcher, who confirmed that McElrath was on 

the police department’s barred list for the Housing Authority. The officer then arrested 

McElrath for criminal trespass and searched him, finding marijuana. A couple of weeks 

later, the officer again saw McElrath on the property of the Housing Authority, arrested 

him a second time for criminal trespass and searched him, finding marijuana. 

03/12/2019
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But the police department’s records were wrong and had been wrong for nearly 

five years. For some unexplained reason, the police department kept two lists: a list of 

people barred from the Housing Authority’s property and another list of people removed 

from the barred list. In 2007, the police department placed McElrath on the barred list. In 

2010, the police department approved McElrath’s request for removal from the barred 

list. The police department added McElrath’s name to the removed list but failed to take 

his name off the barred list. The police department did not merge or reconcile the two 

lists, resulting in McElrath’s name remaining on the barred list for almost five years. To 

make things worse, the dispatcher only checked the barred list, not the list of people who 

had been removed from the barred list. McElrath brought the error to the attention of the 

police department after he had been twice wrongfully arrested because of the faulty 

recordkeeping.

This haphazard recordkeeping system was bound to result in errors. Although a 

police department lieutenant testified that the barred list was correct 99% of the time, he 

offered no basis or explanation for his conclusion. And no basis for this self-serving 

statistic appears in the record. What we do know is that for almost five years, the police 

department did not update its barred list to remove McElrath’s name, and in 2015, police 

arrested McElrath two times because of police department errors.

Today, a majority of the Tennessee Supreme Court adopts an exception to the 

exclusionary rule to excuse negligent police recordkeeping based on United States v. 

Herring, 555 U.S. 135 (2009). In Herring, a county sheriff’s deputy arrested and 

searched Bennie Dean Herring after learning that a neighboring county’s sheriff’s 

department had an unserved warrant for his arrest. Id. at 137. The search uncovered a gun 

and drugs. Id. Yet the neighboring county’s records were wrong; there had been a warrant 

for Herring’s arrest in that county, but the warrant had been recalled months earlier. Id. at 

137–38. The records failed to show the recall of the warrant, resulting in Herring’s 

unlawful arrest and search. Id. at 138.

In Herring, a majority of the United States Supreme Court, in a 5-4 opinion, ruled 

that the contraband found in the search was admissible even though the deputy had 

violated Herring’s Fourth Amendment rights. Id. at 137. The majority reached this result 

by adopting an exception to the exclusionary rule, concluding that the contraband was 

admissible because isolated police negligence attenuated from the arrest had caused the 

recordkeeping error. Id. The majority reasoned that when police conduct is only 

negligent, rather than caused by systemic error or made with reckless disregard of 

constitutional requirements, then “any marginal deterrence does not pay its way.” Id. at 

147–48 (internal quotation marks omitted). Exclusion of the evidence would have been 

justified, according to the majority, if Herring had proven that the police had been 

reckless in maintaining its records or knowingly made false entries to provide a basis for 

future false arrests. Id. at 146.
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I agree with the four dissenting justices in Herring, who concluded that

“[n]egligent recordkeeping errors by law enforcement threaten individual liberty, are 

susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively 

through other means.” Id. at 157 (Ginsburg, J., dissenting). An exception to the 

exclusionary rule for careless police recordkeeping erodes federal and state constitutional 

guarantees against illegal searches and seizures. The Fourth Amendment to the United 

States Constitution declares that “[t]he right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable searches and seizures, shall not be 

violated.” U.S. Const. amend. IV. The Tennessee Constitution provides another layer of 

protection by stating that “the people shall be secure in their persons, houses, papers and 

possessions, from unreasonable searches and seizures.” Tenn. Const. art. I, § 7.

The exclusionary rule safeguards these constitutional rights by providing a remedy 

for the violation of the Fourth Amendment and Article I, section 7. This remedy is the 

suppression of evidence obtained through an illegal search or seizure. State v. Reynolds, 

504 S.W.3d 283, 309–10 (Tenn. 2016) (citing Weeks v. United States, 232 U.S. 383 

(1914); Davis v. United States, 564 U.S. 229, 236 (2011); United States v. Calandra, 414 

U.S. 338, 348 (1974); State v. Huddleston, 924 S.W.2d 666, 672 (Tenn. 1996)).

Under the exclusionary rule, police gain no benefit from an illegal search and, 

thus, have a strong incentive to comply with the constitutional prohibitions against 

unreasonable searches and seizures. See Reynolds, 504 S.W.3d at 310 (quoting Elkins v. 

United States, 364 U.S. 206, 217 (1960)) (stating that the purpose of the exclusionary rule 

is “to deter—to compel respect for the constitutional guaranty in the only effectively 

available way—by removing the incentive to disregard it”). The conclusion in Herring

that there would be only marginal deterrence from excluding evidence based on police 

negligence goes against the long-standing tort principle that individuals and entities have 

an incentive to act with due care when there is liability for negligence. The distinction 

between police conduct that is negligent as opposed to intentional or reckless, as noted by 

Herring, is of little comfort to a citizen who the police wrongfully arrest, handcuff, 

search, and haul off to jail. Whatever the cause of the error, the result is the same—a 

violation of a basic constitutional right. We should not reduce a citizen’s right to be free 

from unreasonable searches and seizures to a cost-benefit analysis, as it was in Herring. 

See State v. McKnight, 319 P.3d 298, 325 (Haw. 2013) (Acoba, J., dissenting). The 

exception for police negligence is poised to swallow the exclusionary rule. Davis, 564 

U.S. at 258 (Breyer, J., dissenting); accord McKnight, 319 P.3d at 325 (observing that 

after Herring, safeguards of constitutional rights provided by the exclusionary rule have 

been largely eviscerated).

Many legal commentators have appropriately criticized the Herring exception for 

negligent police recordkeeping. See 1 Steve C. Posner, Modern Privacy & Surveillance 

Law § 2.08 (Matthew Bender & Co. 2018) (asserting that the Herring exception is 
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tantamount to a policy decision that “convicting criminals is more important than 

preventing citizen victimization due to police negligence in record keeping”); Thomas K. 

Clancy, The Irrelevancy of the Fourth Amendment in the Roberts Court, 85 CHI.-KENT L.

REV. 191, 207 (2010) (predicting that a broad reading of the “mere negligence” standard 

under Herring might “make many—if not most—Fourth Amendment violations 

inappropriate candidates for suppression”); George M. Dery, III, Good Enough for 

Government Work: The Court’s Dangerous Decision, in Herring v. United States, to 

Limit the Exclusionary Rule to Only the Most Culpable Police Behavior, 20 GEO. MASON 

U. C.R. L.J. 1, 27 (2009) (contending that Herring signals to the police that negligence 

by individual agents need not be avoided); Alex R. Hess, Herring v. United States: Are 

Errors in Government Databases Preventing Defendants from Receiving Fair Trials?, 11 

J. HIGH TECH. L. 129, 131 (2010) (pointing out the unfairness in admitting illegally 

seized evidence while giving the government a pass for keeping incorrect records); 

Matthew Allan Josephson, To Exclude or Not Exclude: The Future of the Exclusionary 

Rule After Herring v. United States, 43 CREIGHTON L. REV. 175, 196 (2009) (noting that 

if Herring allows the admission of illegally seized evidence, as long as the police did not 

act culpably, then the warrant requirement would eventually not be much of a 

requirement at all); Candace C. Kilpinen, Comment, Herring v. United States: A Threat 

to Fourth Amendment Rights?, 44 VAL. U. L. REV. 747, 756 (2010) (warning that 

Herring may result not only in the loss of the exclusionary rule but also in the demise of 

the Fourth Amendment itself); Wayne R. Lafave, The Smell of Herring: A Critique of the 

Supreme Court’s Latest Assault on the Exclusionary Rule, 99 J. CRIM. L. &

CRIMINOLOGY 757, 782 (2009) (concluding that police are better positioned to remedy 

their own errors and might do so “if the exclusionary rule were there to remove the 

incentive to do otherwise”); Jennifer E. Laurin, Trawling for Herring: Lessons in 

Doctrinal Borrowing and Convergence, 111 COLUM. L. REV. 670, 744 (2011) 

(concluding that Herring “may well represent a sweeping rollback of the exclusionary 

rule that will effectively preclude any remedy for entire categories of Fourth Amendment 

violations—in particular, those resulting from negligent police conduct”); Claire 

Angelique Nolasco et al., What Herring Hath Wrought: An Analysis of Post-Herring 

Cases in the Federal Courts, 38 AM. J. CR. L. 221, 231 (2011) (quoting United States v. 

Jones, 620 F. Supp. 2d 163, 177 (D. Mass. 2009)) (noting the view that “Herring

foreshadows the elimination of the exclusionary rule altogether”); see also David L.

Hudson, Opinion, Tennessee Supreme Court Must Resist Chipping Away at Fourth 

Amendment Rights, THE TENNESSEAN, March 21, 2018, https://www.tennessean.com/

story/opinion/2018/03/21/tennessee-supreme-court-fourth-amendment-rights/374946002/ 

(“The exclusionary rule ensures that the government does not violate the law in fulfilling 

its mission.”).

Against this backdrop, a majority of the Tennessee Supreme Court in State v. 

Reynolds, 504 S.W.3d 283, 313 (Tenn. 2016), adopted a narrow exception to the 

exclusionary rule for constitutional violations. The exception was based on Davis v. 
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United States, 564 U.S 229 (2011), and applied to evidence obtained in reliance on 

binding judicial precedent later overturned. Reynolds, 504 S.W.3d at 312. I dissented in 

Reynolds, because “[t]he adoption of this exception for a constitutional violation erodes 

our citizens’ rights to be free from unreasonable searches and seizures as guaranteed by 

the United States and Tennessee Constitutions.” Id. at 315 (Lee, J., dissenting). That said,

I later joined in adopting a good faith exception for a statutory or procedural rule 

violation. See State v. Davidson, 509 S.W.3d 156 (Tenn. 2016); State v. Daniel, 552 

S.W.3d 832 (Tenn. 2018); State v. Lowe, 552 S.W.3d 842 (Tenn. 2018). A constitutional 

violation differs from a statutory or rule violation. Our federal and state constitutions are 

the foundation of our democracy and have withstood the test of time. Statutes and rules 

are important but can be amended or repealed from one legislative session to the next. To 

this point, Tennessee Rule of Criminal Procedure 41, the violation of which was at issue 

in Davidson, Daniel, and Lowe, was amended after these opinions were issued to give 

courts discretion in suppression decisions. See Daniel, 552 S.W.3d at 835 n.5 (explaining 

that the amended version of Rule 41 permits a trial court to exercise discretion in ruling 

on a motion to suppress if the conduct at issue violates Rule 41, but not the Constitution).

We have interpreted Article I, section 7 of the Tennessee Constitution to be 

“identical in intent and purpose with the Fourth Amendment,” Reynolds, 504 S.W.3d at

303 (internal quotation marks omitted), but we have “not hesitated to extend greater 

privacy protections to the citizens of this State when appropriate” under that section.

State v. Randolph, 74 S.W.3d 330, 335 (Tenn. 2002); accord Miller v. State, 584 S.W.2d 

758, 760 (Tenn. 1979). Although we look to the United States Supreme Court to guide 

our interpretation of state constitutional rights, we need not move in “lockstep” with its 

decisions. See State v. Handy, 18 A.3d 179, 186 (N.J. 2011).

In sum, declining to hold the police accountable when their negligence results in a 

constitutional violation erodes public trust in the judicial system, makes courts 

participants in “official lawlessness,” and signals that the government may indeed profit

sometimes “from its lawless behavior.” Herring, 555 U.S. at 152 (Ginsburg, J., 

dissenting) (citations omitted); see also Olmstead v. United States, 277 U.S. 438, 485 

(1928) (Brandeis, J., dissenting) (“To declare that in the administration of the criminal

law the end justifies the means—to declare that the government may commit crimes in 

order to secure the conviction of a private criminal—would bring terrible retribution.”), 

overruled in part by Berger v. State of New York, 388 U.S. 41 (1967) and Katz v. United 

States, 389 U.S. 347 (1967); State v. Hess, 785 N.W.2d 568, 584–85 (Wis. 2010) 

(rejecting the proposition that under Herring and other recent Supreme Court decisions, 

“judicial integrity” is no longer a part of the exclusionary rule analysis). Courts abdicate 

their responsibility to protect citizens’ constitutional rights by imposing no consequence 

on police carelessness that results in a violation of these sacred rights. We should reject 

the Herring exception and preserve the efficacy of the exclusionary rule to redress 
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constitutional violations and not justify negligent police conduct at the expense of 

constitutional rights.

Although I dissent from the adoption of the Herring exception for negligence, I 

concur in the majority’s decision that McElrath’s arrests were the result of long-standing 

mistakes in the police department’s records caused by an inherently flawed 

recordkeeping system.

_________________________________

SHARON G. LEE, JUSTICE