Back in October, I filed a pro bono petition for certiorari in McCane v. United States asking the Supreme Court to resolve the circuit split on whether the good faith exception to the Fourth Amendment applies to changing law. The government has filed its BIO, and I’m working on the reply brief. I was hoping I could get some free help from readers who may know of similar cases pending in lower courts.
Specifically, I’m trying to compile a list of the other federal circuits and state Supreme Court where this issue is presently pending. These will be cases with facts like Arizona v. Gant that ask whether the good faith exception of Herring excuses the Gant violation. The Ninth and Tenth Circuit have split on the issue since Gant, and about 20 district courts and state intermediate courts have weighed in since then, also dividing: I’m trying to get a full sense of the federal circuits and state Supreme Courts that presently have the issue on their docket in a pending case.
The Westlaw ALLBRIEFS database is very incomplete, but it reveals cases with this issue pending in the 4th, 6th, and 8th Circuits and the Supreme Courts of Colorado, Ohio, Kansas, Washington and Idaho. If you know of other cases pending in other circuits or state supreme courts that raise the issue, could let me know via e-mail or in the comments? Thanks.
theBruce says:
I’m unable to look it up an official citation at the moment, but People v. Branner is a California Third District Court of Appeals case directly on point. 3rd DCA held that Gant is retroactive, but that a “good faith” exception applies. The decision is from December ’09, so it’s too recent for the Cal Supremes to have looked at it.
January 20, 2010, 7:38 pmOrin Kerr says:
TheBruce,
Thanks. Yes, there have been about 20 state intermediate court or federal district court cases on this issue in the last four months, all directly on point: Branner is just one of many. (My recollection is that something like 5 or 6 reject the good faith exception and around 15 disagree and allow it, but I haven’t counted carefully enough to have exact numbers.)
January 20, 2010, 7:59 pmzuch says:
JOOC:
If the “good faith” exception is applied to every case based on searches pursuant to old law, how would one ever get a change in law? And if it is not, what justifies the original appellant’s successful challenge and not that of others? Shouldn’t the first “successful” appellant also lose on a “good faith” exception?
Cheers,
January 20, 2010, 8:05 pmOrin Kerr says:
Zuch,
Those who favor the good faith exception for changing law argue that the first successful appellant should lose: After all, no one could predict the change in law. As you guess, one of the many problems with such an approach is that no defendant could ever argue in favor of a new rule: If it’s a new rule, the defendant can’t benefit from it. So defendants would always have to argue that they win on the old law, and would have to hide their arguments for a new rule as merely an application of the old rule.
January 20, 2010, 8:22 pmGuy says:
Like others have noted, if the good faith rule didn’t apply in Gant, no reasonable claim can be brought that it should apply in pending cases. Unless the Supreme Court wants to make the exclusionary rule work like qualified immunity (which would be a very bad policy decision, in my opinion) this argument has to be rejected.
Then again, qualified immunity is predicated on considerations of good faith. So to make the law consistent, the Supreme Court only has 3 options that I can see:
1) Eliminate the good faith exception.
2) Make the exclusionary rule work like qualified immunity.
3) Clarify that “good faith” in the 4th Amendment context means something less than “good faith” in the QI context, in such a way that inquiries into “clearly established law” are not relevant.
Option (3) is probably the most likely outcome, since it wouldn’t upset any established precedents, even though it’s not a very logically elegant solution.
January 20, 2010, 8:40 pmRoyLitmus says:
Wasn’t the “good faith” exception meant to allow police who had a warrant issued by a judicial authority to assume that it was valid, based on PC, unless otherwise patently obvious? I didn’t think it was ever meant to apply to “changing law.”
January 20, 2010, 8:54 pmSoronel Haetir says:
I also have to wonder how the analysis may change depending on whether you see Gant as a change or clarification in the old law. The court certainly seemed to think they were merely correcting an over-expansion by lower courts rather than applying a narrowing to their own precident.
January 20, 2010, 8:57 pmLaura Victoria says:
Excellent brief Professor Kerr. I am not able to give the expert opinion of others, but your argument is beyond persuasive that retroactivity is incompatible with a good faith exception. Orin, may I assume that Colorado is in the first category, together with the 10th and the 5th?
Beyond that, my prescriptive advice for the Court is eliminate the ludicrous good faith exemption. Recognize that cops, as prone as they are to misconduct, are not the only bad faith actors on the legal stage, and that the whole triumverate of DAs, judges (largely ex-DAs), and cops (DAs without college or law degrees) are all part of the chain of misconduct that needs to be deterred. Must I elaborate? I will upon request, but hope this point is obvious to most here.
Then, let’s get rid of qualified immunity. I believe most Americans are aware of the adage that ignorance of the law is no excuse. Either the rule needs to be changed in light of how far we have progressed in proliferating illogical malum prohibitum laws and extend the “qualified immunity” to criminal prosecutions of non-government employees, or eliminate qualified immunity for government employees.
I think most Americans are very unaware of qualified immunity, and that if they were, would vehemently oppose it if they received all the facts. Seriously, how stupid is it that those charged with enforcing the laws get a cop out on a “mere” civil judgment based on ignorance of the law, but mere taxpayers could commit “Three Felonies a Day” without even knowing it and lose their freedom by transporting an undersized fish (or three) over state lines.
January 20, 2010, 9:06 pmzuch says:
Prof. Kerr:
Thanks for the explanation (such as it is, and I don’t hold you responsible for the vacuity and/or disingenuousness of such “distinctions”).
How can they legitimately “win” on the old law? Isn’t the “new application” of the old rule just as much “new law” (and certainly just the same with regard to those similarly situated)? I still don’t see a principled distinction between the first successful appelant and others in the same boat….
I have to admit that my (admittedly limited) look at retroactivity in “new law” when I was looking into such back in the ’90s was not a very enlightening experience. Seemed rather ad hoc.
Cheers,
January 20, 2010, 9:08 pmOrin Kerr says:
Laura,
The case is still pending in Colorado, so we don’t know how the court will rule yet.
FWIW, I disagree with you about the good faith exception generally. In areas of law that have a lot of technical requirements, such as obtaining and executing warrants, it makes sense that minor technical violations should not lead to suppression. If you want to look at it from the pro-civil liberties perspective, courts are not going to recognize Fourth Amendment protections if they know a minor defect will lead to the entire case being tossed.
The good faith exception for changing law strikes me as a very different bird, though. It’s really a backwards way of eliminating the retroactivity of new decisions, and it creates all sorts of perverse incentives on the litigation process that would cause major structural problems in developing Fourth Amendment rules.
January 20, 2010, 9:15 pmML says:
Prof. Kerr,
Is the gov’t brief online? I couldn’t find a copy of it, perhaps you could post it?
January 20, 2010, 9:40 pmLior says:
Prof. Kerr: There must be some way to hold the police accountable when the violate defendants’ rights. A “good faith” exception makes sense when considering an individual criminal case in isolation — no need to suppress useful evidence because of minor violations, and the check on the police can occur outside the criminal case. However, this exception does not make sense when the violations are committed by police officers shielded by qualified immunity, prosecutors shielded by absolute immunity and the like. If the police officers (together or individually) cannot be held responsible for violations, and if the court will accept illegally obtained evidence, then what is the check on the police?
PS: You discuss (and I continue) the policy debate on the desirability of a “good faith” exception. Why should the court take sides in this debate? Congress enacts rules of evidence; surely these address an issue as important as the admissibility of illegally obtained evidence?
January 20, 2010, 10:55 pmWm. Tyroler says:
Pending in Wis. supreme court: State v. Michael A. Littlejohn, Appeal Number 2007AP000900 – CR. Though Littlejohn in his opening brief didn’t raise the issue of good-faith reliance on Gant, the state raises it in the response brief. In fact, the state explicitly asks the court to adopt McCane. Companion case, same basic argument: State v. David A. Dearborn, Appeal Number 2007AP001894 – CR.
I’d guess there’s a number of such cases pending in the Wis court of appeals, including State v. Shawn R. Schmitt, Appeal Number 2009AP002389 – CR. Briefs in these cases are available on-line: go here, navigate to the case search screen, plug in the case number, then go to the case history screen, where you’ll find the parties’ briefs.
January 21, 2010, 12:34 amKirk Lazarus says:
It seems mad to me. A court cannot make law, it can only discover it. A court cannot make what is unconstitutional constitutional, or vice versa. If searches of a certain kind violate the 4th amendment now, then they always have.
January 21, 2010, 6:00 amBuddy Hinton says:
Get rid of the exclusionary rule AND the good faith exception. In this way, we don’t have to worry about the societal cost of letting guilty people go free, and, at the same time, we wouldn’t have to worry about the policeperson pleading ignorance of the law (eg, lack of established precedent, changing precedent) when he messes with an innocent searchee, friskee or seizee — just like a regular citizen can’t plead ignorance of the law when charged with resisting an unlawful arrest or an unlawful search.
January 21, 2010, 8:02 amBuddy Hinton says:
Which is to say that I hope that the cases Professor Kerr collects include both exclusionary rule cases and section 1983 cases. If there are no splits / precedents in the context of section 1983 cases on this particular good faith reteroactivity issue, then this good faith reteroactivity issue is simply not ripe for SCOTUS.
January 21, 2010, 8:05 amhf says:
Buddy
In theory one would have to agree with you that the best solution is to eliminate both the exclusionary rule and the various exemptions and immunities for law enforcement. In practice, the main reason for the exclusionary rule was that everyone knew real damn well that police weren’t going to police themselves.
I could go for a compromise position – the state gets to decide whether to exclude the evidence or prosecute the LEO. The evidence can be admitted once the LEO has completed, say, six months of actual time in the penitentiary and has had his license permanently revoked.
January 21, 2010, 9:19 amdcperson says:
I second this question if someone has a few brief minutes to explain it. Sorry I can’t help with the research request Prof. Kerr…but I am curious about the substantive question. The only place I’ve heard of the good faith exception is reasonable reliance on a warrant later deemed to be invalid. What’s the applicability to retroactivity?
January 21, 2010, 10:07 amDavid Drake says:
Buddy Hinton–
I would favor something like what you are suggesting: let the evidence in for whatever the jury will make of it without a “good faith” exception” on the criminal side, but make the “good faith exception” applicable in Section 1983 cases, and abolish the immunity of law enforcement officers, including prosecutors and perhaps even judges who can be shown to have acted in bad faith.
One good feature of this approach would be that the conviction would greatly increase damages in the civil action, which would have a pretty strong deterrent effect on the police/prosectors/judges.
I realize there are some problems with this approach, but it seems to me greatly preferable to the exclusionary rule as now applied. If the suspect can prove that the cops planted the evidence or that they got a warrant on a pretextual basis then went on a fishing expedition and “caught” the evidence, then the evidence should be excluded. But mere “foot faults” in the search process should not exclude the evidence found in the criminal proceeding.
January 21, 2010, 10:18 amBill Schmaal says:
Sir: I am one of the two appellate public defenders who are presently arguing against the good-faith exception to Gant in Wisconsin (see blog note 13). Would you be kind enough to save me some time and send me your updated case citations off-blog? I have already obtained your cert petition in McCane, but my briefing time is very limited because of the procedural posture of these cases. Thank you.
January 21, 2010, 11:21 amBuddy Hinton says:
I don’t think that is good enough on the civil side (that is, for innocent victims of 4a transgressions). 4A requires “reasonableness,” which just so happens to be the negligence standards that governs regular citizens at their jobs and in their private conduct. Police can and should be held to this standard at the least. If there is bad faith, or reckless disregard, or an intentional violation, then it might be a good idea to provide enhanced liability, beyond what is traditionally obtainable in a negligence suit in any old regular citizen context. However, any lack of reasonableness in search or seizure type activity: (i) violates 4a; and (ii) should be compensated. I look at it this way: conforming one’s conduct to vague, amorphous and constantly shifting standards of “reasonableness” is difficult for sure, but we all have to do it every day, and in every way. Policemen should be held to no less. If we got rid of good faith and qi and all the policemen quit and went to work at WAL*MART (which they wouldn’t), then the employing departments could look into insurance (which they already have anyway).
This brings us down to the nub of the matter with the good faith exception and qi generally — they are basically a transfer payment from the victims of unreasonable police conduct to companies that insure police departments. That is why qi and the good faith exception continue to exist in the context of section 1983 suits, because the companies that benefit spend a lot of money directly, and indirectly, funding a lot of high priced litigators, and amici, to keep these limitations on section 1983 going strong, and, on the other hand, people who are the victims of unreasonable police conduct are generally unempowered. however, it is time to look beyond the economic dynamic, and to look at what is fair and just. To do otherwise is a Faustian bargain. Listen instead to your heart. Listen to the ghost of the Founding Fathers who drafted 4A and want it to be obeyed, at least in cases where innocent citizens are involved.
January 21, 2010, 11:24 amPubliusFL says:
And here I thought qi was the vital energy inherent in all living things.
January 21, 2010, 11:32 amzuch says:
The police are some of the biggest fans of the exclusionary rule. They don’t want to be socked with damages for violations of civil rights. The exclusionary rule is a sanction that doesn’t hurt them much personally.
Cheers,
January 21, 2010, 12:00 pmBuddy Hinton says:
The exclusionary rule has definitely grown into black ops in the house of Jefferson, and don’t-throw-me-into-the-briar-patch politics at its best. This situation that this thread is about is an excellent example. The scholars are collecting exclusionary rule cases to form a position generally supportive of the good faith exception. Sure, at the margin they may be advocating that there should be some kind of limit on the good faith exception. But mostly they want a good faith exception cabined in only by things like clear reteroactivity, and not cabined in by things like a high burden of proof or production for establishing good faith, or common sense extensions of existing precedent as a limitation on good faith.
So they get tonnes of these exclusionary rule cases and solemnly admit to the court that there are some theoretical limits to the good faith exception, so the good faith exception has not completely swallowed the exclusionary rule, meaning that the exclusionary rule can continue to be the 4a enforcement mechanism of choice. This is thought to show a lot of intellectual integrity because it presumably demonstrates some independence from the prosecutor’s office.
What is really going on is a bit deeper and weirder. Justices Roberts and Scalia are making noises about getting rid of the exclusionary rule. That is what the new balancing test for application of the exclusionary rule is all about. That is what Herring was about. The concern that the exclusionary rule could be jettisoned entirely (as it should be) has now become real. So now we see efforts to prop up the exclusionary rule in minor ways that won’t actually get in the way of too many prosecutions. It is an intellectual endeavor of great strategic nuance.
What we really need is an amici in there saying: “C’mon Chief Justice Roberts. You know you wanna! You can woo Justice Sotomayor away from the wonk contingent and just get rid of the thing. It lets criminals get away — just like the repeal of the fleeing felon rule did — but the difference is that you are on the court now and not the AG’s office.”
January 21, 2010, 12:31 pmGuy says:
I’m okay with that solution as long as we institute the death penalty for constitutional violations… and I never have to be a police officer. Seriously, though, I think the exclusionary rule is the best remedy for the problem.
January 21, 2010, 5:55 pmBracton says:
For the folks still trying to find the Solicitor General’s brief in opposition, it’s available at http://www.justice.gov/osg/briefs/2009/0responses/2009-0402.resp.pdf.
January 23, 2010, 7:57 am