Earlier this afternoon I filed the Reply Brief in McCane v. United States, a pro bono Fourth Amendment case that asks the Supreme Court to review whether the good-faith exception to the exclusionary rule applies to changing law. Here’s the full set of the cert-stage briefs:
1. Petition for Certiorari
2. Brief in Opposition
3. Reply Brief
The lower court decision is here.
jccamp says:
Out of idle curiosity, had the government argued that a routine inventory of the vehicle, prior to the towing, would have undoubtedly discovered the handgun, leading the subsequent excited utterance, etc, would that have been persuasive?
February 1, 2010, 4:18 pmBuddy Hinton says:
No, because McKane’s passenger, Carr, could have driven the vehicle away, thereby eliminating the prerogative of the police to do a warrantless impound based on the Community Caretaking exception.
The app. ct. opinion makes it sound like McKane believes that the Officer lied about the excited utterance. I wonder if he did lie about that. If the policeman did lie, then I don’t think there was good faith.
February 1, 2010, 4:46 pmjccamp says:
I believe says the officer was waiting for the tow truck when he found the firearm. The vehicle was being towed, and inevitably, the firearm would have been found, and the rest.
McCane alleged that the officer lied. The appellate court called that a jury question.
The rationale for suppressing the firearm is to encourage the officer from future violations of 4A rights. However, the officer acted properly under existing case law at the time of the arrest, and so the exclusionary rule makes no sense, since he’s not likely to repeat the error anyway.
The petitioner does make one very good point though, in that any appeal for 4A relief which might cover new ground would then leave the petitioner with no relief, since new ground would invalidate excluding the (now) improperly seized items.
My suggestion would sidestep this dilemma. Either result causes some harm, since the petitioner seeks to make the exclusionary rule an absolute right in 4A cases (in effect).
Should be an interesting read.
February 1, 2010, 4:58 pmSwan Trumpet says:
I found the Reply Brief not only well written, but very persuasive. Especially this argument…
February 1, 2010, 5:02 pmBuddy Hinton says:
No. If the policeman were to try an inventory search, then the conversation would have gone like this:
Passenger Carr: Why are you coming into the vehicle?
Policeman: To do a pre-impound inventory.
Passenger Carr: Why are you impounding? You need a warrant to seize this vehicle.
Policeman: No, I am relying on the Community Caretaking exception to the warrant requirement.
Passenger Carr: Why does the Community caretaking exception apply?
Policeman: This car is illegally parked and in the way of other drivers.
Passenger Carr: Well, then I will simply drive the car away and resolve the Community Caretaking situation that way. I have permission to operate this vehicle after all.
Policeman: Let me check your license at least.
Passenger Carr: Here you go, Officer. *hands over license*
Policeman: Looks good. *hands back license* Have the best day ever.
Passenger Carr: *drives away, thereby safely resolving the Community caretaking situation*
So long as there was some chance the situation things would have went this way, impoundment was not “inevitable,” because “inevitable” means certain to happen. Here is a thread on another board about how Gant is causing police to try to expand impoundment powers to the limits, and finding that there are indeed limits on its 4A amendment vanquishing ability:
http://ratemycop.com/index.php?option=com_fireboard&Itemid=162&func=view&id=58360&catid=11
February 1, 2010, 5:14 pmjccamp says:
From the original decision by the 10 CCA:
“After requesting dispatch to contact a wrecker service to tow the vehicle, Officer Ulman…”
I don’t know that it mattered, but the car was getting towed, and inventoried prior to towing.
February 1, 2010, 5:21 pmBuddy Hinton says:
Again, no. Things were set to go down like this (absent the unConstitutional search):
Passenger Carr: Why are you coming into the vehicle?
February 1, 2010, 5:31 pmPoliceman: To do a pre-impound inventory.
Passenger Carr: Why are you impounding? You need a warrant to seize this vehicle.
Policeman: No, I am relying on the Community Caretaking exception to the warrant requirement.
Passenger Carr: Why does the Community caretaking exception apply?
Policeman: This car is illegally parked and in the way of other drivers.
Passenger Carr: Well, then I will simply drive the car away and resolve the Community Caretaking situation that way. I have permission to operate this vehicle after all.
Policeman: Let me check your license at least.
Passenger Carr: Here you go, Officer. *hands over license*
Policeman: Looks good. *hands back license* Have the best day ever.
Passenger Carr: *drives away, thereby safely resolving the Community caretaking situation*
Policeman: *On phone to tow company* Dad, cancel the tow.
Policeman’s dad: Look, if there is a passenger next time then just order him out of the vehicle and arrest for jaywalking when he gets there.
Policeman: But our prosecutor doesn’t vigorously prosecute jaywalking.
Policeman’s dad: Doesn’t matter. You need your search and I need my tow fee.
Policeman: I see your point. We’ll get’em next time!
John says:
Great brief. About a year ago, when Herring first came down, I think I remember Professor Kerr and Tom Goldstein having an interesting debate about the scope of that opinion. As I recall, Mr. Goldstein thought that Herring signaled the end of the exclusionary rule for non-culpable police conduct, and Professor Kerr viewed the case much more narrowly. It’s interesting to see how that debate is playing out in the courts of appeals.
February 1, 2010, 5:33 pmtheBruce says:
I agree that the Court needs to resolve the split, but I just can’t see how this comes out in favor of the petitioner in light of Herring.
[From a brief I filed in a California court on the issue of retroactivity:] In Herring, supra, the Supreme Court noted “that evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” (citations) Turning to the factual circumstances before it, the Court noted that had the police department been shown to have been “reckless in maintaining its warrant system, or to have knowingly made false entries” in it, exclusion would have been justified.” (citation)
How may it be said that an officer had knowledge, or may be properly charged with knowledge that a vehicle search is unconstutional when he relies on years of federal and state law that says it is not? To quote myself again: “Here, the search of Defendant’s vehicle occurred twenty-six years after a California court pronounced that such a search was permissible incident to the arrest of an occupant of the vehicle, and a mere one year after a California Supreme Court opinion reiterated that position.” Hardly negligent, and certainly not reckless of the officer to conduct the search.
Then again, I’m a prosecutor, so I’m used to being accused of being “unusually eager to make creative arguments that could expand the good-faith exception.” Sorry Orin, I couldn’t resist.
February 1, 2010, 5:35 pmOrin Kerr says:
TheBruce,
If you’re going to make an argument based on Supreme Court precedent, don’t you have to start with the Supreme Court precedents that have explicitly addressed whether the exclusionary rule applies to newly announced rules and concluded that it does, despite any reasonable reliance on overruled cases by the police? See, e.g., Katz v. United States, Stone v. Powell, Griffith v. Kentucky, etc.
Making an argument based on language from a case on a police database error seems like an odd place to start given the direct Supreme Court precedents on the question, even if that case is a recent one that has received a great deal of press attention.
In any event, I’m very curious how you deal with Katz, etc. in your brief.
(Asked with my personal hat on.)
February 1, 2010, 5:41 pmBuddy Hinton says:
here is something I never understood about Herring:
why didn’t police have the burden in the first instance to establish with evidence that their warrant system had good integrity? Why is the burden of production shifted to the defendant on this issue?
Not only are the police the ones seeking the benefit of the good faith exception (which would seem to place the burden on them), but also police have the access and resources to produce this evidence. They can keep daily track of how many illegitimate warrants are in their system on an ongoing basis. Not only can they do this, but they should be encouraged to do this. there seems to be every reason to place the burden on the police to affirmatively establish good faith, and still the burden is placed on the defendant to refute good faith. Is there some good jurisprudential reason why it does not work that way?
February 1, 2010, 5:59 pmDavid Schwartz says:
I thought it was clear that the exclusionary rule exists solely to discourage misconduct and not at all to vindicate 4A rights directly. If that’s so, then this case is a slam dunk — there was no misconduct to discourage here. If that’s not so, then why isn’t exclusion an automatic remedy for any 4A violation?
February 1, 2010, 7:49 pmjccamp says:
David –
That’s the way I would see it, but for that very clever piece of reasoning suggesting (in so many words) ‘why bother with a 4A appeal at all, if the appeal reaches new ground or promises (threatens maybe is better) new precedent, if the new precedent will avail the petitioner naught (based on good faith exception)?’
BTW, I would have suggested that Katz described circumstances in which agents could have obtained a valid warrant, but decided not to. The agents exercised their discretion and chose a path which afforded the defendant less protection than had they obtained a warrant first. Thus, excluding the intercepted conversations had some effect on future law enforcement conduct. The instant case describes circumstances in which the cop could never have obtained a warrant prior to discovery of the firearm, but was instead the cop was basing the search on another warrant exception, carved out from a search incident to lawful arrest and massaged to fit the automobile.
But that’s what you said. I agree.
February 1, 2010, 8:15 pmOrin Kerr says:
David,
How do you square your view with Katz v. United States, Stone v. Powell, Griffith v. Kentucky, Arizona v. Gant, and all the other (many) Supreme Court cases applying the exclusionary rule to new decisions on direct review?
February 1, 2010, 8:22 pmDavid Schwartz says:
Arizona v. Gant and Katz v. United States address the constitutionality of the search in great detail and finding that lacking, assumes exclusion is the remedy. If there’s any analysis in either of whether exclusion would serve any purpose and is a suitable remedy, I can’t find it.
The question of whether good faith reliance on overturned law justifies a good faith exception to suppression, as far as I can tell, has not yet been addressed by the Supreme Court. These other cases don’t address that question at all. For all we know, had good faith been raised, the courts would not have granted the remedies requested in those cases.
If the purpose of the exclusionary rule is to prohibit police misconduct, in every case where there is no police misconduct and someone raises this argument, exclusion should not be granted as a remedy.
I agree that this leads to the absurd results pointed out in your brief, but I attribute that to the absurdity of the position that exclusion exists solely to discourage misconduct.
February 1, 2010, 8:38 pmOrin Kerr says:
David,
We often disagree on Fourth Amendment issues, and this is another one of those times. Fortunately, the Fourth Amendment is not as absurd as you think.
I don’t want to rehash the arguments in our brief. But I completely disagree with your reading of those cases. The deterrence vs. culpability framework that determines the scope of the exclusionary rule has been around for a long time: It is not at all new. And it has clearly taken the view that the exclusionary rule applies to new decisions on direct appeal, which as I believe you agree is the only approach that avoids absurd results.
February 1, 2010, 9:18 pmArthurKirkland says:
The court’s current willingness to revisit precedent inclines me to hope the court will rescind immunity and hold law enforcement personnel accountabe for unconstitutional conduct that disadvantages citizens.
It may require improvement in the makeup of the Court, of course.
February 1, 2010, 9:31 pmDavid Schwartz says:
The fourth amendment is only absurd, and only leads to the absurd results mentioned in your brief, if you believe that it never requires exclusion as a remedy.
February 1, 2010, 10:03 pmOrin Kerr says:
David,
Your comments remind me of a dissenting opinion in which the dissenter reads the majority opinion as much broader than it is in order to decry all the horrible things that will happen under it, thus trying to undercut the majority view. (See, e.g., Scalia’s dissent in Lawrence.) The problem with such dissents is that they read the majority as being much broader than it is; they make it seem like the sky is falling when it’s actually not. Similarly, I do not think the sky is falling in the way you think it is falling.
February 1, 2010, 10:30 pmtheBruce says:
Orin, the short answer to your question regarding my treatment of Katz, Stone, etc. in my brief is that I chose not to discuss the holdings, focusing instead on the policies the Court invoked as retroactivity doctrine developed. I don’t believe that those justifications for retroactive application outweigh the current court’s (or more properly, the court as comprised when Gant was decided) rationale for its interpretation of the of the good faith exception. Notably, the “pluck one case from the stream” argument that was used to justify in several contexts a retroactive application is somewhat a curosity to me. The entire appeals process up to and including a SCOTUS cert grant, is about plucking one case from a stream of many. On that note, I’d be interested to hear your thoughts on why retroactivity was not even discussed by the Court in Gant, considering that it was argued on the same day as Herring.
For what it’s worth, when I first discussed the Gant holding with some folks in our office, I argued fairly strongly that there was no question that Gant would be applied retroactively. When directed back to my role as an advocate (as opposed to that of an analyst), I found I was able to support the office’s preferred position that Herring “saves” some pre-Gant searches. Until it proves me wrong, I think it’s less likely that the Court will say “that’s not what we meant” about Herring than it will say that Katz et seq. don’t reflect the current state of the law vis-a-vis good faith. To put it another way, Katz overturned at least 39 years of precedent; I doubt the Court will hestitate to say that Gant distinguishes/narrows/overturns 42 years of precedent from Katz. I hope you’re granted cert– will you handle the argument, or is my question akin to talking to a pitcher working on a no-hitter?
February 2, 2010, 12:51 amSoronel Haetir says:
The thing I keep thinking about Gant and retro-activity comes back to the idea of the new rule. Looking at Belton and Gant together simply makes me think the CoAs and state courts made an unwarranted leap. If that is actually the case then it wouldn’t be retroactive at all, it would simply be bringing practice back in line with the announced rule. In which case anyone still on direct review certainly ought to benefit thereby. You shouldn’t be able to rely on CoA rulings that are in fact contrary to SCOTUS pronouncements even if SCOTUS takes awhile to get around to saying the CoA is wrong.
February 2, 2010, 2:37 amBuddy Hinton says:
I would also add that Justices Souter and Stevens were in the minority on Hudson, but the majority on Gant. If this case gets granted, the impact of Hudson is likely to be considered more seriously than it got considered in Gant. Lets see what Justice Sotomayor thinks about the impact of Hudson on warrantless automobile searches:
Now this is not conclusive proof, and I am not privy to behind the scenes stuff with these justices, but it looks to me like there may be some daylight btwn her & Justice Souter’s respecto positios.
February 2, 2010, 8:49 amJoe Student says:
Professor Kerr,
I’m writing my law review comment based, in part, on this case. I hope to have it done by end of February, but I fear that the Court will grant, vacate, and remand in accordance with Gant, without ever addressing the issue. Any thoughts on the odds of this occurring?
February 2, 2010, 12:52 pmJoe Student says:
Let me further clarify that I think that GVR result would be irrational, but I can’t shake the sneaking suspicion. Maybe I am just a pessimist and expect a simple stroke of the pen to destroy 3 months of my work.
February 2, 2010, 12:55 pmAnon says:
I agree with this. Gant is as much new law as it is a reaffirmation of Belton’s grounding in Chimel.
February 2, 2010, 2:23 pmRebecca Pennell says:
Thanks for getting involved in this case. I agree with your analysis entirely. To find in favor of the government, the Supreme Court would have to over-rule the Griffith line of cases. The choice was made long ago to let new constitutional rules develop in the criminal context (where they are applicable to all pending cases) as opposed to the civil context (where there are qualified immunity protections). The balance has worked well. It should not be over-turned. I suspect the Ninth Circuit hasn’t ruled on the EB petition in Gonzalez (my case) because it is waiting to see what the Supreme Court will do.
February 2, 2010, 3:26 pmSwan Trumpet says:
Justice Scalia wrote a separate concurring Opinion in Arizona v. Gant where he obliquely addresses the exclusion remedy. He explicitly stated his preference for the reasonable standard over the subjective analysis of whether law enforcement acted in good faith. The reasonable standard would be whether a reasonably well-trained officer should know that a warrantless search of a vehicle was illegal in that particular circumstance.
Justice Scalia wrote in Gant, “When an arrest is made in connection with a roadside stop, police virtually always have a less intrusive and more effective means of ensuring their safety—and a means that is virtually always employed: ordering the arrestee away from the vehicle, patting him down in the open, handcuffing him, and placing him in the squad car.”
February 2, 2010, 10:31 pmSwan Trumpet says:
I’d also like to add that as Prof. Kerr’s brief points out, exclusion is the only remedy available. The purpose it serves is to uphold a defendant’s 4th amendment rights. If the Bill of Rights has any meaning, than it’s better to let a hundred guilty go free than to secure an unjust conviction.
February 2, 2010, 11:13 pmTweets that mention The Volokh Conspiracy » Blog Archive » Final Cert-Stage Briefing in McCane v. United States -- Topsy.com says:
[...] This post was mentioned on Twitter by Damir Tankovic, Eugene Volokh. Eugene Volokh said: Final Cert-Stage Briefing in McCane v. United States: Earlier this afternoon I filed the Reply Brief in McCane v. … http://bit.ly/9PDARL [...]
February 5, 2010, 11:10 pmknee high socks says:
I don’t generally comment on blog posts but I needed to stop in and say thank you for writing this, I totally agree and hopefully folks will understand your argument.
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