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 posts, the applicability of the exclusionary rule in light of new law has generally been thought to be a retroactivity question. Precedents directly arguing for a good faith exception for changing law have generally been rare, and didn’t make any waves.  The first such case was United States v. Jackson, 825 F.2d 853 (5th Cir. 1987) (en banc), in which the en banc Fifth Circuit overturned a Fifth Circuit panel decision and applied the good faith exception for reliance on its panel decision.  No one paid much attention, as far as I can tell, as the issue was entirely within the circuit and was never applied outside that one decision.

Over a decade later, the North Dakota Supreme Court and Wisconsin Supreme Court recognized good faith exceptions for changing law in light of Richards v. Wisconsin‘s narrow reading of the no-knock rule.  See State v. Ward, 604 N.W.2d 517 (Wis. 2000); State v. Herrick, 588 N.W.2d 847 (N.D. 1999).  But with all due respect to the supreme courts of North Dakota and Wisconsin, these weren’t high profile decisions — and the U.S. Supreme Court later held there was no suppression for knock-and-anounce violations anyway.  As a result, these decisions didn’t get widely noticed.  Finally, the Seventh Circuit rejected the good faith exception for changing law absent a warrant in United States v. Real Property Located at 15324 County Highway E., 332 F.3d 1070 (7th Cir. 2003). In that case the government had a warrant, however, so the good faith exception applied anyway and the evidence was admitted.

That’s the entire body of caselaw that had considered the good-faith exception for changing law before the spring of 2009.  By the time of Gant, then, the issue of whether there was a good faith exception for changing law was not widely recognized.  The common understanding was that all new decisions applied on direct appeal as a matter of retroactivity law.  Thus, the Arizona Supreme Court and the U.S. Supreme Court both tossed out Gant’s conviction even though the search of his car had been lawful based on then-existing law.   As best I can tell, it simply never occurred to the members of either court that there was such a thing as a good faith exception for changing law that might preserve Gant’s conviction.

(b) The Immediate Reaction Following Gant.

Following Gant, it seems, that general understanding continued. As best I can tell, some prosecutors simply never thought to argue a good faith exception for changing law in light of Gant. Some others recognized the possible argument but decided that they lacked a good faith basis on which to argue that there was a good-faith exception in these circumstances.   We don’t know the details of how these issues were discussed (or not) within various prosecutors offices. But in the weeks following Gant, the Justice Department and state prosecutors mostly failed to raise the argument in the many cases litigating Gant violations for pre-Gant searches.  As a result, Gant violations routinely led appellate courts to overturn convictions based on pre-Gant searches incident to arrest made in reliance on then-existing law.

Some of these decisions were unpublished, as the courts did not see themselves as doing anything interesting in vacating the convictions.  I think the first such case was United States v. Majette, 326 Fed.Appx. 211 (4th Cir. 2009), handed down just nine days after Gant.  But there were others in the summer of 2009.  In addition to Majette, the Fourth Circuit had United States v. Megginson, 340 Fed.Appx. 856 (4th Cir. 2009), and United States v. Palmore, 2009 WL 5126611 (4th Cir. 2009).  

The Sixth Circuit and Eighth Circuit each had published opinions in June 2009 vacating convictions for Gant violations based on pre-Gant searches that had been lawful at the time.  The Justice Department did not raise the good faith exception in either case. See United States v. Lopez, 567 F.3d 755 (6th Cir. 2009) (Kethledge, J.) (“In light of intervening Supreme Court authority, we reverse and remand.”); United States v. Hrasky, 567 F.3d 367 (8th Cir. 2009) (Colloton, J.) (“[The government makes no argument in this case for application of a good-faith exception to the exclusionary rule, and expressly concedes that “due to the Supreme Court’s decision in Arizona v. Gant, the two handguns seized from Appellant’s vehicle should be suppressed.”).

State appellate courts had similar decisions vacating convictions for Gant violations based on pre-Gant searches.  See, e.g.. State v. Thomas, 2009 WL 2054145 (Ohio App. 8 Dist. 2009); State v. Carter, 682 S.E.2d 416 (N.C.App. 2009); Hathaway v. State, 906 N.E.2d 941 (Ind.App. 2009); State v. Henning, 289 Kan. 136 (Kan. 2009).

Just to be clear, I’m not arguing that these cases show that there is no good faith exception for changing law. Rather, the point is that many or most prosecutors either never even thought to make the argument following Gant, or else declined to do so because they felt they lacked a good faith basis for even making such claim. None of this seemed remarkable at the time: It was just the usual process under the retroactivity precedents when the Supreme Court changed the law in a criminal defendant’s favor. (I should also add, just to be clear, that these are not the only decisions overturning convictions for Gant violations — they’re just the ones I found in quick online search. Also, there are many more cases in which courts affirmed convictions after searches that violated Gant by applying the inevitable discovery exception or other exceptions.)

(c) The Good Faith Arguments are Made

Not every prosecutor was unwilling to make a good faith argument for changing law. And such arguments received a huge boost on July 28, 2009, when the Tenth Circuit became the first circuit court to address the argument and agreed with the Government in United States v. McCane that the good faith exception excused the exclusionary rule when the search is made in reliance on then-existing circuit precedent. The Ninth Circuit followed with its own decision, United States v. Gonzalez, rejecting the good faith exception for changing law a month later on August 24th.

At this point, the decisions really took off. Since then, there have been something like 30 or 35 lower court decisions on whether the good faith exception applies to changing law. Most have been state intermediate court decisions and federal district court decisions; most have adopted the good faith exception for changing law. The most notable decisions since the Gonzalez panel opinion have been the ones I noted earlier today: the denial of rehearing in United States v. Gonzalez; the Eleventh Circuit’s decision last week to join the Tenth Circuit in United States v. Davis, and the Utah Supreme Court’s decision to join the Tenth Circuit a few days ago in State v. Baker.

There are lots more courts with this issue pending, and they could come down any day now, so stay tuned for more courts adding to the split.

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