This is my second 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 #2: The Benefit of the Exclusionary Rule on Direct Appeal. Post #1 is available here.
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Whether you call the issue “good faith,” “retroactivity”, or something else, the exclusionary rule is justified for changing law on direct appeal only if the overall systematic benefits of applying the rule to cases of changing law exceed the costs. So we need to tally up the benefits and the costs. This post will address the benefits. My next post will address the costs, and it will then then compare the two.
1. How Fourth Amendment Law Develops. To appreciate the benefits of the exclusionary rule for changing law, you need to understand how Fourth Amendment law develops. Fourth Amendment law develops in a case-by-case fashion. As a particular law enforcement technique begins to be used, cases begin to appear deciding whether it is lawful. Sometimes all the lower courts agree on [...]