Earlier this year, I blogged a lot about the circuit split that has emerged on a critical question of Fourth Amendment law: Whether the good-faith exception to the Fourth Amendment applies when a police officer conducts a search that was considered lawful at the time it occurred that is later recognized as unlawful before the conviction becomes final. As regular readers might recall, I filed a pro bono cert petition in United States v. McCane to try to get the Supreme Court to take the issue, and after that petition was denied, I wrote a series of blog posts on why I think the good faith exception does not apply in that setting.
Now that I’m back blogging, I thought I would flag an important development: After opposing certiorari in McCane, the DOJ recently changed course and filed its own petition for certiorari seeking review of the same issue in the case that created the direct circuit split with McCane, United States v. Gonzalez. You can read DOJ’s petition for certiorari in Gonzalez here. DOJ’s new position makes it very likely that the Supreme Court will agree to hear this issue in the upcoming Term.
I’m presently writing a new law review article on the question, tentatively titled Good Faith, New Law, and the Scope of the Exclusionary Rule. I will post the draft as soon as it’s complete, which should be in about 2 or 3 weeks.
zuch says:
Welcome back!
Cheers,
July 27, 2010, 12:58 pmstickler says:
Fun issue. Sorry to quibble, but I don’t think it’s fair to say that “the DOJ recently changed course” by seeking cert in Gonzalez after opposing it in McCane. The McCane opposition did not say that the issue was not certworthy, but instead said that review was premature, specifically noting that the conflict might disappear if the Ninth took Gonzalez en banc and flipped the panel. Once that did not happen, then cert was needed, and that’s perfectly consistent with (and was even telegraphed in) the McCane opposition.
July 27, 2010, 1:00 pmshg says:
Good to have you back.
July 27, 2010, 1:05 pmOrin Kerr says:
Stickler,
The “change of course” I had in mind is DOJ’s switch in ultimate position on whether the issue is cert-worthy, which is the relevant question for the post: Why DOJ changed its position is an interesting issue, but not really the point of the post.
July 27, 2010, 1:08 pmRhode Island Lawyer says:
Nice to have you back, Orin.
July 27, 2010, 1:25 pmDave N. says:
In thinking about the legal issue involved, Orin’s position makes sense in the criminal context — that is, even though the officer otherwise acted in good faith, the defendant is entitled to the new rule and suppression of the evidence since the conviction had not yet become final. This is the rule in most retroactivity cases.
However, in the civil context it makes less sense. If the officer was acting in good faith at the time of the action, then the office should be entitled to qualified immunity for his or her actions, even if the evidence is ultimately suppressed because of a change in 4th Amendment law.
(And I fully realize Orin’s position is based on the suppression issue, not the civil issue)
On a personal note, I, too, welcome you back. You have been missed.
July 27, 2010, 1:44 pmOrin Kerr says:
Thanks, all, for the welcome back.
Dave N, I agree re qualified immunity in the civil context: It would be nutty to hold an officer personally liable for following the law as it existed at the time. See Gant fn 11 (“Because a broad reading of Belton has been widely accepted, the doctrine of qualified immunity will shield officers from liability for searches conducted in reasonable reliance on that understanding.”)
July 27, 2010, 2:03 pmPyrrho says:
Orin,
As I suspect you are aware (but I’ll point out anyway), the Wisconsin Supreme Court recently held in State v. Dearborn (http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52200) that the good-faith exception to pre-Gant searches. As I suspect you also may be aware, a dissent written by C.J. Shirley Abrahamson gave a shout out the “persuasive and informal articulation of the problem” in your VC posts on the subject.
July 27, 2010, 2:19 pmAnderson says:
Welcome back, and I’m certainly eager to learn what Justice Kagan will think of this issue! ;)
(Really, it’s been bleak here without you, Prof. Kerr. Bleeeeeaak.)
July 27, 2010, 3:05 pmRealistLiberal says:
I will join the multitude of inevitable comments and say “Welcome back, you have been missed.”
July 27, 2010, 3:23 pmBored Lawyer says:
Can you summarize why you think the exclusionary rule should apply notwithstanding the good faith exception? IIRC, the good faith exception is based on the premise that there is no inherent right to exclude evidence.
When the police act in good faith (e.g. they tell the complete truth to the Magistrate, who issues a warrant, that after the fact, a Court determines should not have been issued), there is no deterrence effect that comes out of excluding evidence, and hence it is not excluded. I think that roughly summarized the rationale of the good faith exception, starting with U.S. v. Leon.
The exclusionary rule is thus meant as a deterrent to police misconduct, not as a right of the defendant. It is an impediment to truth-finding (which is why Cardozo and many others opposed it completely.) Although it is now established in our law, surely it should not apply beyond where it is meant to apply.
The same should apply here. If everyone, including the Courts, assumed at the time that the warrant or search was proper, then the police acted in good faith. Where is the deterrence from excluding the evidence?
July 27, 2010, 4:15 pmmicdeniro says:
Orin Kerr wrote
A bold move predicting when a manuscript will be available. Back in the day when I was professing, a manuscript was ready when my secretary refused to type another edition.
I also welcome you back. Did you solve all Senator Cornyn’s problems while you were on summer break?
To raise the level of the discourse here at the VC, since you all have tenure, how about a weekly/monthly/annual VC blogger par excellence award?
July 27, 2010, 4:39 pmthemsbadapples says:
A Serpent in the Garden Poem
Step right up!
July 27, 2010, 5:04 pmGet your Fruit-of-the-Poison-Tree!
It’s not just any
Fruit-of-the-Poison-Tree,
It’s special!
A.W. says:
i don’t know, the whole concept depends on the Supremes admitting that this is a new and unexpected change in the law, instead of being a natural and implied interpretation of the constitution and prior rulings. From an institutional perspective, i find that to be very unlikely.
July 27, 2010, 5:11 pmAllan says:
This is troubling.
On the one hand, these guys are criminals and are caught red-handed.
On the other hand, allowing the Man to violate the constitution (even unintentionally) without repercussions will lead us straight to the Star Chamber.
Having the exclusionary rule allows people to get off scott-free.
Not having the exclusionary rule leaves people with no recourse when their Constitutional rights have been ravaged (1983 notwithstanding). But even when they do get money, it is from me and you, while the wrongdoer generally is just given a slap on the qualified immunity wrist.
I think the exclusionary rule is the best. Others may not think it worth the cost — until their rights are violated.
July 27, 2010, 5:31 pmAlex S says:
Couple of thoughts:
1. By the logic of the DOJ, should not the police officers in the Gant case itself also be entitled to a good-faith exception?
2. What happens when the Supreme Court precedent is more of a “clarification” instead of, as was the case in Gant, a major departure? As a matter of fact, the officers’ reliance on the old Belton reading in this case was fair. But what happens in more close cases? See, e.g., Kyllo (heat sensors held to be a “search” under 4A) — Would the cops in a similar situation (in a case on direct review after Kyllo is decided) be under a good faith exception, even though their conduct was not as obviously justifiable under the pre-Kyllo precedent, like the conduct of these cops was clearly fine pre-Gant?
July 27, 2010, 5:41 pmDavid Schwartz says:
Five second version: If the good faith exception is permitted for a change of law, then how can there be adversarial testing of whether a change in law is needed?
July 27, 2010, 6:29 pmDon Samuel says:
Perhaps more troubling than extending the good faith exception to the exclusionary rule to cases in which Circuit precedent was thought to be clear (and permitted the conduct of the police), what about extending Herring to ALL searches, including all warrantless searches? Consider the recent case of USA v. Julius, 2010 WL 2331119 (2d Cir, June 11, 2010), which held that the trial court must undertake a cost benefit analysis in EVERY case involving a fourth amendment violation.
July 27, 2010, 7:10 pmOrin Kerr says:
By the logic of the DOJ, should not the police officers in the Gant case itself also be entitled to a good-faith exception?
Yes, that’s correct. DOJ’s argument is that Gant’s conviction should have been affirmed, but that — oops! — no one actually raised the good-faith argument. Sounds pretty bogular to me, too.
July 27, 2010, 7:47 pmOrin Kerr says:
Don,
After reading Julius, it’s not quite clear it does that. (I should add that it shouldn’t do that, but that’s another matter.)
July 27, 2010, 7:48 pmBilly Blackstone says:
When and how did courts acquire the authority to change the law based on adversarial testing? Your response here, I think, highlights the difficulty of attempting to approach this topic from a legalist standpoint. If I understand correctly, the Court’s jurisprudence in this area is largely guided by ideas of retroactivity, as one commenter has noted, which are imports from the legislative/administrative context. Are you comfortable with this? It strikes me as a problem.
July 27, 2010, 8:52 pmwhit says:
that is not even a bad slippery-slope argument.
it’s a straight up straight down slide to hell argument…
cmon! are you for real? “lead us straight to the star chamber”?
July 27, 2010, 8:57 pmOrin Kerr says:
When and how did courts acquire the authority to change the law based on adversarial testing?
The Supreme Court’s view is that they are not changing the law: They are recognizing that they have previously interpreted the Constitution incorrectly, and they are finally discovering and reocognizing the true constitutional rule that existed all along. See Danforth v. Minnesota.
July 27, 2010, 9:17 pmSoronel Haetir says:
This is actually one area where I am entirely comfortable with courts fiddling with the rules. The authority derives from the inherent power of a court to shape the rules it operates under. And for the most part those rules are dictated by tradition and experience.
I would not want them to make radical changes (for instance, I don’t see any US judge ruling that an inquisitive style proceeding is constitutionally required (or likely even permitted)), but the slow and marginal changes we see are entirely appropriate. See the recent confrontation cases for another example.
July 27, 2010, 9:35 pmShelbyC says:
The motivation for the exclusionary rule as deterant to law enforcement, to be applied when courts think it’s good policy to to do, is inconsistent with the role of the courts as arbiters of cases and controversies. The only good reason is as a remedey to the accused, to which he should be entitled.
July 27, 2010, 11:09 pmFantasiaWHT says:
If you think making an already-miniscule chance to win reversal on appeal slightly more miniscule is going to seriously deter criminal defendants from making the arguments anyway, you have a very poor grasp of the practical side of criminal defense realities.
July 28, 2010, 9:10 amSCOTUSblog » Wednesday round-up says:
[...] the Volokh Conspiracy, Orin Kerr discusses a new cert. petition from the Department of Justice that he predicts is [...]
July 28, 2010, 9:19 amVisitor Again says:
Yes, welcome back, Orin. The Volokh Conspiracy suffered while you were gone. It’s a conspiracy gone awry when one of the two main hubs is removed, leaving only a few spokes left whirling away to God only knows where. I read this blog primarily for its quality legal content, and you and Eugene are the main purveyors of that.
July 28, 2010, 10:14 amAnon says:
The Washington Supreme Court recently found no good faith exception to exist at all, and in the context of Gant. I want to say it was unanimous, but there may have been one dissenter. I can track down the link if anyone is actually interested.
July 28, 2010, 12:43 pmwhit says:
i’ve made this point before about my state. the only good faith exception i enjoy is on domestic violence crimes (see: the war on domestic violence).
if i arrest a murderer (unless it’s a DV murder), and make a good faith mistake. tough.
if i arrest a gal for slapping her boyfriend and make a good faith mistake, i’m covered.
July 28, 2010, 7:16 pmMatt Caplan says:
Professor Kerr -
I think the circuit split is a bit wider than the government says in their brief. They cite only to the Fifth, Tenth, and Eleventh Circuits, and to Utah for the proposition that “the good-faith exception to the exclusionary rule where . . . law enforcement officers have conducted searches in objectively reasonable reliance on binding appellate precedent that is subsequently overruled.”
The Second, Sixth, and Seventh Circuits have also rendered decisions applying the good-faith exception to reliance searches rendered illegal by Chadwick v. United States, 433 U.S. 1 (1977)).
July 28, 2010, 8:14 pmLook at these:
- United States v. Reda, 563 F.2d 510, 511-512 (2d Cir. 1977) (per curiam), cert. denied, 435 U.S. 973 (1978);
- United States v. Berry, 571 F.2d 2, 3 (7th Cir. 1978), cert. denied, 439 U.S. 840 (1978);
- United States v. Calandrella, 605 F.2d 236, 247 (6th Cir. 1979), cert. denied, 444 U.S. 991 (1979).
Wednesday round-up | theConstitutional.org says:
[...] the Volokh Conspiracy, Orin Kerr discusses a new cert. petition from the Department of Justice that he predicts is [...]
July 28, 2010, 9:23 pmOrin Kerr says:
Matt,
Aren’t those retroactivity cases that were overruled by Griffith v. Kentucky? (Granted, it’s hard to see a real difference between retroactivity and a good faith exception, as in practice they are identical and apply the same legal test. But DOJ’s argument is that retroactivity and good faith are totally different doctrines.)
July 29, 2010, 7:50 pmBilly Blackstone says:
Yes, I am aware that this is the account of things the Court offers in public. But, the comment to which I was responding clearly assumed that these cases involve changing, rather than interpreting law. I find that troubling in some respects, but much easier to swallow as a descriptive matter.
July 30, 2010, 1:13 amBilly Blackstone says:
I am not sure there is any such inherent power, unless you mean to say that it is included in the “judicial power” of Article III. But, in that case, most judicial legislation, like the Judiciary Act or the Rules Enabling Act, would be quite superfluous.
I also think it’s very difficult to see the 4th Amendment as a procedural rule. The idea of raising constitutional violations as procedural barriers to prosecution is relatively recent. It used to be that a person who was wrongfully searched or seized brought a common law trespass action against the offending officer, and would use the 4th Amendment to defeat the officer’s inevitable defense of lawful authority. But, perhaps more to the point, the Warren Court was quite explicit that cases like Miranda and Mapp were intended to be substantive restraints on law enforcement, and that clearly goes beyond the scope of what you describe.
And, there is another problem: incorporation. The Supreme Court’s rulings on criminal procedure bind state courts as well as federal ones. For your theory to work, you would have to say that the 14th Amendment transformed the Court’s inherent power over its own rules into a general supervisory power over state judiciaries. This is probably descriptively accurate, but surely it cannot be legally sound.
July 30, 2010, 1:53 amWednesday round-up : SCOTUSblog says:
[...] the Volokh Conspiracy, Orin Kerr discusses a new cert. petition from the Department of Justice that he predicts is [...]
August 10, 2010, 8:06 pm