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 (“We cannot assume that exclusion in this context is necessary deterrence simply because we found that it was necessary deterrence in different contexts and long ago. That would be forcing the public today to pay for the sins and inadequacies of a legal regime that existed almost half a century ago.”). A good-faith exception to the exclusionary rule, when “tailored to situations in which the police have reasonably relied on a warrant issued by a detached and neutral magistrate but later found to be defective,” has been expressly found compatible with the retroactivity policy articulated in Johnson. See Leon, 468 U.S. at 912. In Gant, however, the majority did not suggest that the good-faith exception would apply to reliance on pre-Gant case law, and the dissenters clearly concluded that it would not. See Gant, ___ U.S. at ___, 129 S. Ct. at 1726 (Alito, J., dissenting) (“The Court’s decision will cause the suppression of evidence gathered in many searches carried out in good-faith reliance on well-settled case law.”).
Under these circumstances, we are reluctant to expand the good-faith exception to the Supreme Court’s exclusionary rule beyond the limits set by that Court itself.
Absolutely right in my view, for reasons I expressed in my long series of blog posts (and for that matter, in my denied petition and reply brief in McCane v. United States).
Just counting the courts that have decided this issue in the wake of Arizona v. Gant, and ignoring the pre-existing split on the question, I believe that brings us to two circuits and one state supreme court accepting the good faith exception in these circumstances (10th in McCane, 11th in Davis, Utah in Baker) and one circuit and one state supreme court rejecting the good faith exception in these circumstances (9th in Gonzalez, Colorado in McCarty).
If the state files a petition, I suspect that the Supreme Court will review this case — or at the very least, that this case will prompt the Court to grant the petition in another similar case like Davis or Baker and then hold this case pending that one. Not only is the split deep and deepening with essentially identical facts, but this case creates a state/federal split inside the 10th Circuit between this case and 10th Circuit’s decision in McCane. Given that most Gant cases involve guns and drugs, with concurrent federal and state laws, Colorado state officials now can just pass off their uncontitutional Gant cases to the feds. The feds can bring charges in federal court and get the evidence in under McCane‘s good faith exception that would be suppressed in state court under McCarty. That kind of split gets the Justices’ attention, and it tends to prompt review. Plus, the state on top (that is, filing the petition) will get the attention of the more pro-law enforcement Justices and their clerks.
The downside is that McCarty is interlocutory, but with a state on top I doubt it matters. So I suspect the Court either will grant this case or else take one of the recently-decided cases like Davis from the 11th Circuit or Baker from the Utah Supreme Court.