Archive | Good Faith Exception for Changing Law

Third Circuit Votes to Rehear Katzin En Banc on the Scope of the Davis Good Faith Exception [UPDATE: Second Circuit Weighs In, Too]

I’ve blogged before about United States v. Katzin, the Third Circuit decision imposing a warrant requirement for installing a GPS device on a car and limiting the scope of the Davis good faith exception. In my earlier post, I explained why the Third Circuit’s good faith analysis was not likely to be the last word on the issue:

I’m no fan of the Davis good-faith exception — as regular readers know, I think it was wrongly decided — so on one hand, I appreciate the fact that the court construed the case narrowly. Limiting the case to “binding” appellate precedent seems correct, as the Supreme Court clearly relied on that limitation to justify its holding. With that said, as much as I oppose the introduction of a free-floating culpability requirement on the exclusionary rule, if courts are to recognize such a requirement, it probably should mean something: The court here seems to add the requirement (which it didn’t have to do) but then construes to mean almost nothing. The police here didn’t apply a “self-derived” rule, as the court says; they applied the rule that was reflected in the caselaw and found in the treatises. If there’s a culpability requirement to be applied, then it seems like a relatively tough fit with the facts here. Anyway, much of good-faith exception material is likely to lead to relatively deep splits in the next two to three years, so all of this is probably just percolation that will end up leading to future Supreme Court decisions.

On December 4th, DOJ petitioned the Third Circuit to rehear en banc just the good-faith exception part of the decision, and earlier today the Third Circuit granted the petition and scheduled the case for an en banc argument in May. As I understand the […]

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Third Circuit Requires Warrant for GPS Monitoring and Limits Good-Faith Exception in United States v. Katzin

Today the Third Circuit handed down United States v. Katzin, an important cases on three related issues of Fourth Amendment law: first, whether the installation of a GPS device requires a warrant; second, the scope of the Davis good-faith exception to the exclusionary rule; and third, who has standing to suppress the evidence from the physical search of a car following a GPS search.

The divided court ruled in the defendants’ favor on all three issues. First, installation of a GPS device requires a warrant; second, the Davis good-faith exception applies only when there was directly on-point binding appellate precedent allowing the government’s acts; and third, every passenger in the car at the time it is stopped has standing to challenge the fruits of the subsequent physical search. There’s a lot in the Katzin case, so I thought I would blog on the three issues and offer my perspective on them.

I. The Facts

The police were tracking a string of burglaries at Rite-Aid pharmacies across several states, and they came to have very strong suspicion that Katzin and his two brothers were committing the burglaries using Katzin’s van. The police found the van one day, so they called the local U.S. Attorney’s Office. The prosecutors at the office advised them that they could put the GPS device on without a warrant. (This was December 2010, before the Supreme Court’s GPS decision in Jones.) The police attached the GPS device on the car when it was parked on a public road. The device allowed the police to monitor the location of the car in real-time remotely. The GPS device quickly paid off: Just several days after placing the GPS device on the car, the GPS showed the car parked for a few hours right next to a Rite-Aid […]

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Supreme Court Expands Good-Faith Exception to Exclusionary Rule To Include Reliance on Overturned Law

The Court’s decision in Davis v. United States is here. The vote was 7-2, with Justice Alito writing for the majority and Justice Breyer dissenting (joined by Justice Ginsburg).

The key question for the future development of Fourth Amendment law is if and when defendants can challenge adverse Fourth Amendment precedents in criminal cases. The remedy drives the challenges, so the scope of the remedy determines the scope of what is challenged. The answer for challenging anything below Supreme Court cases is now clearly “no.” As soon as a lower court has approved a practice, defendants cannot obtain relief by challenging it. The answer for Supreme Court cases still remains unclear, however. Justice Alito’s opinion for the Court suggests that the Court is open to an exclusionary rule for challenging just Supreme Court precedents just for the one litigant who persuades the Supreme Court to overturn its precedent. If a litigant persuades the Supreme Court to overturn a precedent in the future, Justice Alito says, the Court “could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment overruling one of our Fourth Amendment precedents.” In other words, the Court has adopted an exception to the exclusionary rule but has left open a possible exception to its exception “if necessary.” Also left unclear is whether a lower court restatement of a Supreme Court rule makes the rule a lower court rule that cannot be challenged: Based on this case, I assume it does, but I suppose that is something for a future decision to decide if the Court opts to craft an exception to today’s exception.

Whether Davis applies when the law is merely unclear is the obvious next question: The significant possibility (always in the background during Davis) is that […]

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Merits Brief for Petitioner in Davis v. United States — The Good-Faith Exception for New Fourth Amendment Decisions

Today I filed the merits brief for the Petitioner in Davis v. United States, 09-11328, a Fourth Amendment case the Supreme Court recently agreed to hear on the scope of the exclusionary rule for searches made in reliance on subsequently-overturned precedent. The brief is here: Brief for Petitioner in Davis v. United States, 09-11328.

I will be doing the oral argument for the Petitioner, Willie Gene Davis. I’ve written merits briefs in Supreme Court cases, but Davis will be my first Supreme Court oral argument. The argument date has not yet set, but at this point I expect the argument to be sometime in late March.

I want to thank a number of friends (including co-bloggers) for reading and commenting on a draft of the brief in the last two weeks, but I haven’t asked for their permission so I don’t want to do so quite yet. Perhaps I’ll name names later on, at least of those who agree to be thanked in public for their help. […]

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This Petition for Certiorari Seems Strangely Familiar

Last year I drafted a cert petition in McCane v. United States on whether the good-faith exception to the Fourth Amendment applies to changing law. The Court denied the petition. But having now just read the cert petition in Davis v. United States, the case the Court took today that raised the same issue as McCane, I can now say that the Court sort of granted on my petition after all: If you compare the two petitions, you’ll notice that much of the Davis petition is from the cert petition in McCane.

UPDATE: I’ve now spoken with counsel for Mr. Davis, and it looks like I may be working with him on the merits briefing and argument in the case. I was off working for the Senate when the cert petition in Davis was due, which is why I wasn’t consulted earlier (counsel for Mr. Davis didn’t know how to reach me, which is certainly understandable), and now it looks like I may be joining forces with him on the case. […]

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Supreme Court Agrees to Hear Case on the Good-Faith Exception For Changing Law

As regular readers know, I have a forthcoming article that explains why I think the Supreme Court should reject the good-faith exception to the exclusionary rule for reliance on overturned precedent: Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Georgetown Law Journal (forthcoming 2011). Readers will also recall that I’ve been expecting the Supreme Court to grant cert on a case raising this issue sometime this fall: Specifically, I recently suggested that the Court probably would grant cert on the pending petition in Davis v. United States to avoid the recusal problems raised by DOJ’s petition for certiorari in United States v. Gonzalez.

Anyway, the Court scheduled consideration of Davis for last Friday’s conference, and this morning’s order list announces that the Supreme Court has indeed granted cert in Davis. So this issue will be on the Court’s docket for the Term after all; argument will be some time in the early spring, with a decision expected by June. This should be a very important case on the exclusionary rule, so stay tuned. […]

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Supreme Court Holding Good-Faith-for-New-Law Fourth Amendment Petition

DOJ’s cert petition in United States v. Gonzalez, 10-82, a case on the good-faith exception to the Fourth Amendment, was distributed for last week’s “long conference.” The case did not appear on the Court’s list of granted cases nor its list of denied cases, however. That means either the case will be formally relisted for another conference soon or it is being held outside a formal relist (which is rare, but apparently happens).

It’s hard to know with any certainty what is happening, but I wonder if the Court is going to hold the Gonzalez petition and grant in another similar case in coming weeks instead of taking Gonzalez. Here’s my thinking. The Ninth Circuit panel decision in United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009), was handed down in August 2009, and DOJ filed its petition for rehearing in that case in November 2009. At the time, Elena Kagan was the SG, so she would have had to personally approve the petition for rehearing. Having approved the petition for rehearing in the Ninth Circuit, Kagan presumably is recused from sitting on the Gonzalez case.

At the same time, this is a recurring question and other petitions are pending raising the same issue but that Kagan would not have worked on as SG. For example, there’s United States v. Davis from the Eleventh Circuit: The Davis petition was filed in June, and DOJ’s Brief in Opposition was filed on September 15th. Although DOJ’s brief is not yet on the OSG website, it seems likely that DOJ had to pretty much concede in Davis that the issue was cert-worthy in light of its own cert petition in Gonzalez on the exact same issue in a case with nearly identical facts.

Given the possibility […]

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New Article: “Good Faith, New Law, and the Scope of the Exclusionary Rule”

I have posted a new draft article: Good Faith, New Law, and the Scope of the Exclusionary Rule, forthcoming in the Georgetown Law Journal. Here’s the abstract:

Lower courts recently have divided on whether the good-faith exception to the Fourth Amendment exclusionary rule applies to reliance on overturned caselaw. This Article argues that the Supreme Court should reject the good-faith exception in this setting. A suppression remedy for new law creates necessary incentives for criminal defendants to challenge existing precedents. The exclusionary rule deters constitutional violations by creating an environment for appellate decision-making in which constitutional errors can be corrected. The costs of the exclusionary rule for overturned law are comparatively minor, as other doctrines already limit the scope of the exclusionary rule. The benefits of the exclusionary rule for reliance on overturned caselaw exceed its costs, and the rule therefore should be retained.

Readers may recall the basic argument from my blogging, as the article began as a series of blog posts here at the VC. The article will be published in the GLJ in the early spring. Meanwhile, the Justice Department has petitioned for certiorari on this question in United States v. Gonzalez, and the Supreme Court likely will rule on whether to grant DOJ’s petition one week from today.

Comments on the article are very welcome, as always. […]

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Good-Faith Exception for Changing Law Likely Headed to the Supreme Court

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. […]

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Colorado Supreme Court Rejects Good Faith Exception for Changing Law

A while back I blogged a bunch about whether the good faith exception to the exclusionary rule should apply when a search that is constitutional under existing law at the time of the search is ruled unconstitutional on direct appeal. Yesterday the existing split deepened, with a divided Colorado Supreme Court joining the Ninth Circuit in rejecting the good faith exception in People v. McCarty:

Although it may not have expressly considered and rejected the good-faith exception proposed by the People, the Supreme Court has nevertheless effectively rejected any doctrine of non-retroactivity premised on the exclusionary rule’s lack of deterrent effect. A good-faith exception for reliance upon subsequently overruled Supreme Court decisions would therefore appear to be in “untenable tension” with its retroactivity precedent. See United States v. Gonzalez, 578 F.3d 1130, 1132-33 (9th Cir. 2009). And if a lack of deterrent value in applying the exclusionary rule to searches conducted in good-faith reliance on controlling Supreme Court precedent would not excuse its application, it is difficult to conceive that the same lack of deterrent value in enforcing the rule against officers acting in good-faith reliance upon a lower court misinterpretation of Supreme Court precedent could justify that result. Id. But see United States v. Davis, 598 F.3d 1259, 1263-68 (11th Cir. 2010) (concluding otherwise); United States v. McCane, 573 F.3d 1037, 1041-45 (10th Cir. 2009) (same); People v. Key, No. 07CA1257, 2010 WL 961646, at *2 (Colo. App. Mar. 18, 2010) (same).

In any event, the United States Supreme Court has made it abundantly clear that neither the reach of the exclusionary rule nor its retroactivity jurisprudence is simply a matter of constitutional construction; rather, both largely involve policy choices peculiarly within the discretion of the Court and subject to continual reassessment. See Hudson, 547 U.S. at 597

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The Good Faith Exception and Changing Law: Misunderstanding “Good Faith”

This is my 6th post in series of posts on why the good faith exception to the exclusionary rule should not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right now thanks to a clash of two recent Fourth Amendment cases, Herring v. United States, — U.S. — (2009) and Arizona v. Gant, 556 U.S. ___ (2009). Herring has language suggesting a broad approach to the good faith exception, while Gant ruled a common and widely-accepted law enforcement practice unconstitutional. The combination of the two cases raises a question: Should the exclusionary rule apply for the many violations that occurred before Gant was handed down, or does the good faith exception apply so the evidence is admitted? The prior posts are here. Now on to Post #6: Misunderstanding “Good Faith.”

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In this post, I wanted to address a very natural response to my arguments: Isn’t a police officer who relies on then-current law acting in good faith? After all, a police officer who simply does what the law says he can do isn’t morally culpable or a bad-faith actor. Isn’t he pretty much the poster-child of good faith, and thus worthy of the good-faith exception?

This is a natural reaction, but also a wrong one. The error is one of labels:  “good faith.” Although the doctrine is called the “good faith exception,” that is a confusing label: The subjective good faith of the officer is actually irrelevant, as decisions from Leon to Herring have all emphasized. It’s more accurate to think of the so-called “good faith” exception as the “technicality” exception. The exception applies when the police violate the Fourth Amendment […]

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The Good Faith Exception and Changing Law: A Brief History

This is my fifth post in a planned series on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right now thanks to a clash of two recent Fourth Amendment cases, Herring v. United States, 556 U.S.___ (2009) and Arizona v. Gant, 556 U.S. ___ (2009). Herring has language suggesting a broad approach to the good faith exception, while Gant ruled a common and widely-accepted law enforcement practice unconstitutional. The combination of the two cases raises a question: Should the exclusionary rule apply for the many violations that occurred before Gant was handed down, or does the good faith exception apply so the evidence is admitted? Post #1 is available here, post #2 is here, post #3 is here, and post #4 is here.   Now on to post #5: A Brief History.

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For this post, I thought it might be helpful to discuss how the good faith exception for changing law has developed in the lower courts.   Specifically, I want to talk  about the pre-Gant cases; the immediate reaction to Gant; and how the post-Gant circuit split has developed. There won’t be much of an argument in this post; my goal is mostly to just explain the history. But to the extent there’s a narrative take-away here, that take-away is that the argument for the exception quickly went from an claim some prosecutors weren’t even willing to argue to a position that most lower courts so far appear eager to accept.

(a) The Pre-Gant Precedents.

As I explained in my earlier […]

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The Good Faith Exception for Changing Law: Recent Developments

I’ve been running a series of posts about the good faith exception for changing law, and I wanted to flag three new developments just in the last week:

1. Today the Ninth Circuit denied DOJ’s petition for rehearing en banc in Gonzalez, the case rejecting the exception, so the clear circuit split stays: United States v. Gonzalez. (Judge Bea dissented, and I’ll respond to at least some of his arguments in a post later today.)

2. Last Thursday, the Eleventh Circuit joined the fray, agreeing with the Tenth Circuit that the good faith exception applies to changing law: United States v. Davis.

3. The Utah Supreme Court also joined in, agreeing that the good faith exception applies for changing law: State v. Baker.

I plan to continue to blog on this issue, and I may also put my thoughts together into an article. Stay tuned. […]

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The Good Faith Exception and Changing Law: Distinguishing Illinois v. Krull

This is my fourth post in a planned series on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right now thanks to a clash of two recent Fourth Amendment cases, Herring v. United States, 556 U.S.___ (2009) and Arizona v. Gant, 556 U.S. ___ (2009). Herring has language suggesting a broad approach to the good faith exception, while Gant ruled a common and widely-accepted law enforcement practice unconstitutional. The combination of the two cases raises a question: Should the exclusionary rule apply for the many violations that occurred before Gant was handed down, or does the good faith exception apply so the evidence is admitted? Post #1 is available here, post #2 is here, and post #3 is here. Now it’s time for Post #4: Distinguishing Illinois v. Krull.

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At first blush,  Illinois v. Krull, 480 U.S. 340 (1987), seems like it points strongly in favor of recognizing a good faith exception for changing law.  In this post, I want to explain the holding of Krull and then explain why I think Krull is distinguishable.

(a) Illinois v. Krull. Krull deals with good faith reliance on a statute authorizing a search. The state of Illinois had enacted a statute that allowed Illinois authorities to conduct warrantless administrative searches of businesses engaged in selling automobiles and autoparts. An officer made a warrantless inspection of Krull’s wrecking yard and saw evidence that Krull was engaged in criminal activity. When Krull was charged with various offenses, he moved to suppress the evidence found in his wrecking […]

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The Good Faith Exception and Changing Law: The Costs of the Exclusionary Rule, and Balancing Costs and Benefits

This is my third post in a planned series on why the good faith exception to the exclusionary rule does not apply when a police officer conducts a search that is lawful when it occurs that is later ruled unlawful before the conviction is final. This issue is being litigated all over the country right now thanks to a clash of two recent Fourth Amendment cases, Herring v. United States, — U.S. — (2009) and Arizona v. Gant, 556 U.S. ___ (2009). Herring has language suggesting a broad approach to the good faith exception, while Gant ruled a common and widely-accepted law enforcement practice unconstitutional. The combination of the two cases raises a question: Should the exclusionary rule apply for the many violations that occurred before Gant was handed down, or does the good faith exception apply so the evidence is admitted? Here is post #3: The Costs of the Exclusionary Rule, and Balancing Costs and Benefits. Post #1 is available here; post #2 is available here.

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Now we turn to the costs of the exclusionary rule.   The key to determining the costs of the exclusionary rule for any good-faith case is understanding the subset of cases in play.  The question is, is the cost of suppression for that class of cases worth the benefits explained in Post #2?  Here I think the answer is clearly “yes.”  To see why, we need to start by identifying the precise class of cases in which suppression would be imposed.

1.  The Class of Cases. The trick to understanding the scope of suppression is to recall the different limitations on the exclusionary rule discussed in my first post.  As I explained there, whether the exclusionary remedy applies depends on three basic questions:

1. Is

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