This morning the Supreme Court denied cert in McCane v. United States, the pro bono case I worked on over the last few months on whether the good faith exception of the Fourth Amendment applies to changing law.
Although the Court denied cert in my case, I think it is extremely like that that the Court will grant cert on the issue within the next year. The issue is now pending in several circuits and at lots of state supreme courts, with more on the way, and the lower courts continue to be deeply divided over the issue. As the Kentucky Court of Appeals noted last week in Valesquez v. Commonwealth, — S.W.3d —-, 2010 WL 567325 (Ky. App. 2010), “[t]his important constitutional question is destined to be determined at the highest levels of not only this court system, but the federal court system as well.”
In light of the importance of the issue, and the fact that most of the lower courts seem to be getting this issue wrong, I thought I would devote a few blog posts to explaining why I think the good faith exception cannot apply to changing law. In my view, this is one of those legal issues that at first blush looks one way, but when you think about it carefully, you realize that it has to come out the other way. I wanted to blog about why I believe that. Think of it as the merits brief I was itching to write, offered in blog form instead. I’ll probably start with the first post later today.