Today my co-counsel and I filed a petition for certiorari in the case of McCane v. United States. The question presented:
Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.
From the petition:
The Court should grant certiorari to resolve the deep and irreconcilable three-way split among the lower courts and this Court about whether the good-faith exception applies when a search that was considered lawful at the time it occurred is later ruled unconstitutional.
This recurring question of Fourth Amendment law is raised every time a court issues a ruling in a defendant’s favor that departs unexpectedly from earlier decisions. Criminal defendants with similar cases still in the pipeline will invoke the new ruling in support of suppression. The question is, does the new case apply in full force so that the evidence is suppressed? Or does the good-faith exception to the exclusionary rule apply so that the evidence is admitted?
You can read the decision of the Tenth Circuit below here: United States v. McCane, 573 F.3d 1037 (10th Cir. 2009).