Good faith, new law, and the scope of the exclusionary rule

Georgetown Law Journal

Volumn 99, Issue 4, 2011, Pages 1077-1118

  Kerr, Orin S ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 79956108394     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (215)

1. See, e.g., United States v. Leon, 468 U.S. 897, 913 (1984) (introducing the good faith exception).
2. This Article will refer to the proposed exception to the exclusionary rule as the good faith exception for reliance on "overturned law," "new law," and "changing law" and it uses the three terms interchangeably. I note this terminology because exactly what standard the exception might adopt is open to question: as Part III explains, there are at least three major ways of framing the exception if it is adopted. For now, the exception can be understood broadly as any exception to the exclusionary rule based on the state of case law at the time of the search or seizure indicating that the search or seizure was lawful. Part III elaborates on how the desirability of the exception changes based on which version of the exception is considered.
3. United States v. Davis, 598 F.3d 1259 (11th Cir.), cert. granted, 131 S. Ct. 502 (2010);
4. see also Petition forWrit of Certiorari at i, Davis, 131 S. Ct. 502 (No. 09-11328).
5. See Petition for Writ of Certiorari, United States v. Gonzalez, No. 10-82 (U.S. July 14, 2010), 79 U.S.L.W. 3062.
6. See Leon, 468 U.S. at 907 n.6 (noting that the exclusionary rule "must be carefully limited to the circumstances in which it will pay its way by deterring official unlawlessness" (quoting Illinois v. Gates, 462 U.S. 213, 257-58 (1983) (White, J., concurring in the judgment))).
7. The reason is that litigation on this aspect of the good faith exception mostly postdates Herring v. United States, 129 S. Ct. 695 (2009).
8. There were sporadic rulings on a good faith exception for new law before Herring. See, e.g., United States v. Jackson, 825 F.2d 853, 866 (5th Cir. 1987) (en banc) (recognizing such an exception in the case of reliance on overturned circuit precedent);
9. State v. Ward, 604 N.W.2d 517 (Wis. 2000) (recognizing such an exception in the case of reliance on overturned state precedent). However, such precedents remained unexplored in the scholarship with the exception of a brief paragraph in one article and a short discussion in Professor LaFave's treatise, both of which portray the exception as unremarkable.
10. See 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE: ATREATISE ON THE FOURTH AMENDMENT § 1.3(h) (3d ed. 1996);
11. Kenneth J. Melilli, What Nearly a Quarter Century of Experience Has Taught Us About Leon and "Good Faith," 2008 UTAH L. REV. 519, 527 (suggesting that the recognition of the good faith exception for changing law in Jackson and Ward is an uncontroversial extension of good faith precedents).
12. The combination of Herring and Arizona v. Gant, 129 S. Ct. 1710 (2009), triggered a flood of litigation on whether the good faith exception for new law should apply to the many cases that closely resembled Gant. The post-Herring, post-Gant cases then led to the current deep split and the Justice Department's petition for certiorari in Gonzalez.
13. See, e.g., Herring, 129 S. Ct. at 700-01;
14. Whren v. United States, 517 U.S. 806, 813 (1996) ("[T]he constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probablecause Fourth Amendment analysis.").
15. See, e.g., Whren, 517 U.S. at 812-13 (rejecting the argument that a search for which the officer had objectively reasonable suspicion or probable cause could be invalidated by showing some "ulterior motive").
16. A Westlaw query of the Journals and Law Review (JLR) database conducted on August 12, 2010, yielded 3,734 hits for articles that mention "fourth amendment" in the same sentence as "exclusionary rule."
17. See discussion infra section I.C.
18. See, e.g., Herring, 129 S. Ct. at 700 ("[T]he benefits of deterrence must outweigh the costs.").
19. Id.
20. [T]he exclusionary rule is not an individual right and applies only where it 'result[s] in appreciable deterrence.'" (quoting United States v. Leon, 468 U.S. 897, 909 (1984))
21. Id.
22. Leon, 468 U.S. 897;
23. United States v. Calandra, 414 U.S. 338, 349 (1974).
24. See, e.g., 18 U.S.C. §§ 2702-2711 (2006) (regulating government access to records held by internet service providers and the telephone company). For example, § 2703 provides that in order to require disclosure of an electronic communication stored for less than 180 days, the government must obtain a warrant. § 2703(a).
25. The famous phrase is Benjamin Cardozo's, who criticized the exclusionary rule on the ground that the "criminal is to go free because the constable has blundered." People v. Defore, 150 N.E. 585, 587 (N.Y. 1926).
26. That is, the bad guy will go to jail only if the rules are followed. Following the law becomes a precondition to a successful conviction.
27. Wilson v. Layne, 526 U.S. 603, 617 (1999)
28. (quoting Procunier v. Navarette, 434 U.S. 555, 562 (1978)).
29. Given that people cannot readily be deterred by what they cannot know, the mere possibility of future appellate overruling of precedent should not deter police in any substantial fashion.
30. For example, in United States v. McCane, the Tenth Circuit adopted the good faith exception for changing law after concluding that the deterrence calculus applies only to the police. 573 F.3d 1037, 1044 (10th Cir. 2009) ("[T]he purpose of the exclusionary rule is to deter misconduct by law enforcement officers, not other entities . . . .").
31. See infra section I.B.
32. 468 U.S. 897, 900 (1984).
33. Id.
34. Id. at 916.
35. Id. at 917.
36. Id.
37. Id. at 918, 923 n.24 (noting that "[r]eferences to 'officer' . . . should not be read too narrowly" and that it is necessary to consider the objective reasonableness of all listed categories of officers in determining whether the good faith exception applies).
38. Id. at 921.
39. 480 U.S. 340 (1987).
40. Id. at 342-46.
41. Id. at 342 (emphasis omitted).
42. Id. at 350 ("If the statute is subsequently declared unconstitutional, excluding evidence obtained pursuant to it prior to such a judicial declaration will not deter future Fourth Amendment violations by an officer who has simply fulfilled his responsibility to enforce the statute as written.").
43. Id. at 352.
44. Id. at 351.
45. Id. at 352.
46. 514 U.S. 1 (1995).
47. Id. at 4-5.
48. Id. at 5.
49. Id. at 14-16.
50. Id.
51. Id. at 15 (citations omitted).
52. 129 S. Ct. 695 (2009).
53. Id. at 698.
54. Id. at 703.
55. Id. at 704.
56. Id. at 702.
57. This has led to broad statements in some opinions that could be read out of context as suggesting that only police deterrence matters.
58. See, e.g., id. at 698 ("Our cases establish that . . . suppression . . . turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct."). Such statements have to be read in the context of the cases in which they arose. The Court would not have given the attention it did to nonpolice deterrence in the good faith cases if such considerations were not important.
59. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is.").
60. Arizona v. Evans, 514 U.S. 1, 15 (1995).
61. See Am. Trucking Ass'ns, Inc. v. Smith, 496 U.S. 167, 201 (1990) (Scalia, J., concurring) (arguing that "prospective decisionmaking is incompatible with the judicial role" and characterizing the Court's decisions as "declaring what the law already is" rather than "creating the law").
62. 552 U.S. 264 (2008).
63. Id. at 266.
64. Id. at 271.
65. See, e.g., Samson v. California, 547 U.S. 843, 864 (2006) ("[T]he question in every case must be . . . the balance of legitimate expectations of privacy, on the one hand, and the State's interests in conducting the relevant search . . . .").
66. 129 S. Ct. 695 (2009).
67. Id. at 702.
68. See Samson, 547 U.S. at 864.
69. See, e.g., See v. City of Seattle, 387 U.S. 541, 546 (1967) ("Any constitutional challenge [to an administrative search program] can only be resolved . . . on a case-by-case basis under the general Fourth Amendment standard of reasonableness.").
70. See SUP. CT. R. 10 (listing "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter" as one of the "compelling reasons" for which the Court will grant certiorari).
71. 129 S. Ct. 1710 (2009).
72. 453 U.S. 454, 462-63 (1981).
73. See, e.g., United States v. Humphrey, 208 F.3d 1190, 1201-02 (10th Cir. 2000).
74. 541 U.S. 615, 617, 624 (2004) (5-4 decision).
75. Id. at 625-32 (Scalia, J., concurring in the judgment).
76. Id. at 624-25 (O'Connor, J., concurring in part).
77. Id. at 633-36 (Stevens, J., dissenting).
78. State v. Gant, 162 P.3d 640, 643 & n.2 (Ariz. 2007).
79. Arizona v. Gant, 538 U.S. 976 (2008).
80. Arizona v. Gant, 129 S. Ct. at 1723 (holding that "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest").
81. Paul J. Mishkin, The Supreme Court, 1964 Term-Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 HARV. L. REV. 56, 60-62 (1965).
82. Id. at 60-61.
83. Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004) (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986)).
84. United States v. Leon, 468 U.S. 897, 919 n.20. Part III of this Article considers possible variations from this standard, such as limiting the good faith exception for changing law to reliance on settled law.
85. Yale Kamisar, Gates, "Probable Cause," "Good Faith," and Beyond, 69 IOWA L. REV. 551, 603-04 (1984) (arguing that public defenders will litigate for constitutional change even if relief is only purely prospective).
86. See Pearson v. Callahan, 129 S. Ct. 808, 820 (2009) (noting that in the context of qualified immunity, requiring courts to decide the merits of Fourth Amendment questions when actual liability hinges on objective reasonableness "may create a risk of bad decisionmaking" because it can lead to "cases in which the briefing of constitutional questions is woefully inadequate").
87. Lujan v. Defenders of Wildlife, 504 U.S. 555, 581 (1992) (Kennedy, J., concurring)
88. quoting Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 472 (1982)) (internal quotation marks omitted
89. ANTONIN SCALIA& BRYAN A. GARNER, MAKING YOUR CASE: THE ART OF PERSUADING JUDGES 19-20 (2008).
90. If a court concludes that the government did not violate any rights, the defendant will necessarily lose his challenge.
91. See, e.g., Hudson v. Michigan, 547 U.S. 586, 597-99 (2006) (discussing the role of civil suits in deterring knock-and-announce violations in the course of concluding that the exclusionary rule is not needed to deter such violations);
92. INS v. Lopez-Mendoza, 468 U.S. 1032, 1044-45 (1984) (discussing the role of alternative enforcement methods in determining the deterrent impact of an exclusionary rule in civil deportation hearings).
93. See Harlow v. Fitzgerald, 457 U.S. 800, 807-08 (1982) (discussing the doctrine of qualified immunity).
94. See, e.g.,Wilson v. Layne, 526 U.S. 603, 609 (1999).
95. Id. at 614 ("Since the police action in this case violated petitioners' Fourth Amendment right, we now must decide whether this right was clearly established at the time of the search.").
96. 129 S. Ct. 1710 (2009).
97. Id. at 1722 n.11.
98. Such an event is particularly unlikely in light of Pearson v. Callahan, which gives courts discretion to resolve Fourth Amendment civil cases on qualified immunity grounds without addressing the merits under the Fourth Amendment. Pearson v. Callahan, 129 S. Ct. 808, 818 (2009).
99. 461 U.S. 95, 99 (1983).
100. Orin S. Kerr, The Limits of Fourth Amendment Injunctions, 7 J. TELECOMM. & HIGH TECH. L. 127, 130 (2009).
101. See, e.g., Mayfield v. United States, 599 F.3d 964, 969-73 (9th Cir. 2010) (requiring plaintiff seeking a declaratory judgment to show an ongoing injury and redressability).
102. 18 U.S.C. § 242 (2006).
103. United States v. Lainier, 520 U.S. 259, 270-71 (1997).
104. See U.S. CONST. art. I, § 9, cl. 3 & § 10, cl. 1.
105. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (holding that the exclusionary rule applies when evidence has been "come at by exploitation" of an illegal search).
106. See Murray v. United States, 487 U.S. 533, 537 (1988).
107. See Nix v.Williams, 467 U.S. 431, 449-50 (1984).
108. See Brown v. Illinois, 422 U.S. 590, 599-600, 602 (1975) (exclusionary rule does not apply for evidence obtained in violation of the Fifth Amendment when there is an "act of free will" sufficient to "purge the primary taint" of the illegality and break the "causal chain" between the illegal interrogation and the evidence discovered).
109. See Rakas v. Illinois, 439 U.S. 128, 134 (1978). To be clear, the Supreme Court has instructed that courts should not speak of "standing" as an independent doctrine, and should instead ask whether the defendant's reasonable expectation of privacy was violated.
110. Id. at 139-40. Courts continue to refer to standing, however, so I will do the same.
111. Id. at 133-34 ("Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.").
112. Id.
113. See Danforth v. Minnesota, 552 U.S. 264, 271-75 (2008) (reciting the history of retroactivity law).
114. Griffith v. Kentucky, 479 U.S. 314, 328 (1987).
115. Stone v. Powell, 428 U.S. 465, 494-95 (1976).
116. See Rakas, 439 U.S. at 137-38 (discussing "deterrent values" and "social cost[s]" of extending standing to challenge a search (internal quotation marks omitted));
117. Linkletter v. Walker, 381 U.S. 618, 636-37 (1965) (discussing deterrent effect and effect on "administration of justice" of retroactivity of the exclusionary rule).
118. See Griffith, 479 U.S. at 328.
119. See Rakas, 439 U.S. at 134 n.3 (noting the "deterrence aim" of the exclusionary rule).
120. Stone, 428 U.S. at 494-95 (1976).
121. See Groh v. Ramirez, 540 U.S. 551, 568 (2004) (Kennedy, J., dissenting) (listing the many Fourth Amendment responsibilities of a police officer executing a warrant).
122. See, e.g., Los Angeles County, California v. Rettele, 550 U.S. 609, 613-15 (2007) (discussing detention of individuals during execution of warrants);
123. Horton v. California, 496 U.S. 128, 143 n.1 (1990) (limitation on where officer looks for evidence);
124. Baird v. Renbarger, 576 F.3d 340, 346-47 (7th Cir. 2009) (pointing a weapon during execution of warrant can violate Fourth Amendment).
125. See Groh, 540 U.S. at 568 (recognizing that "[a]n officer who complies fully with all of [the warrant execution] duties can be excused" when the warrant itself contains a clerical error).
126. United States v. Leon, 468 U.S. 897, 922 (1984).
127. Hudson v. Michigan, 547 U.S. 586, 599 (2006).
128. Arizona v. Evans, 514 U.S. 1, 3-4 (1995).
129. Herring v. United States, 129 S. Ct. 695, 698, 704 (2009).
130. See Leon, 468 U.S. at 923 (noting that the good faith exception does not apply if an officer relied on a warrant based on an affidavit clearly insufficient to show probable cause, or if a warrant is obviously facially deficient).
131. Mapp v. Ohio, 367 U.S. 643, 655 (1961).
132. Stone v. Powell, 428 U.S. 465, 494 (1976).
133. United States v. Calandra, 414 U.S. 338 (1974).
134. Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 369 (1998).
135. INS v. Lopez-Mendoza, 468 U.S. 1032, 1051 (1984).
136. United States v. Janis, 428 U.S. 433, 454 (1976).
137. LAFAVE, supra note 6, § 3.1(g) (citation omitted).
138. United States v. Ryan, 236 F.3d 1268, 1271-72 (10th Cir. 2001) (holding accordingly, and noting that "all nine other circuits to have considered this issue have determined that, in most circumstances, the exclusionary rule does not bar the introduction of the fruits of illegal searches and seizures during sentencing proceedings"). There are some exceptions to this rule.
139. See LAFAVE, supra note 6, § 3.1(f) & nn.153-54.
140. See, e.g., Lopez-Mendoza, 468 U.S. at 1040-50.
141. 414 U.S. 338, 349-52 (1974).
142. See, e.g., Stone v. Powell, 428 U.S. 465, 493 (1976) ("We adhere to the view that these [cost-benefit] considerations support the implementation of the exclusionary rule at trial and its enforcement on direct appeal of state-court convictions. But the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs.").
143. Id. at 493-94.
144. Herring v. United States, 129 S. Ct. 695, 701 (2009) (noting that in Leon, the Court "(perhaps confusingly) called this objectively reasonable reliance 'good faith'").
145. 468 U.S. 897 (1984).
146. Id. at 900.
147. See United States v. Leon, No. 82-1093, 1983 WL 486883, at *2-3 (9th Cir. Jan. 19, 1983). Kennedy wrote: "Whatever the merits of the exclusionary rule, its rigidities become compounded unacceptably when courts presume innocent conduct when the only common sense explanation for it is on-going criminal activity. I would reverse the order suppressing the evidence."
148. Id. at *3 (Kennedy, J., dissenting).
149. Leon, 468 U.S. at 926.
150. Id. at 904 n.4 (quoting the trial judge as saying: "I will say certainly in my view, there is not any question about good faith. [Officer Rombach] went to a Superior Court judge and got a warrant; obviously laid a meticulous trail. Had surveilled for a long period of time, and I believe his testimony-and I think he said he consulted with three Deputy District Attorneys before proceeding himself, and I certainly have no doubt about the fact that that is true." (brackets in original)).
151. Id. at 904.
152. See Brief for the United States at 19, Leon, 468 U.S. 897 (Nos. 82-1771, 82-963, 82-1711), 1983 WL 482697, at *19. The government's brief argued for a "reasonable mistake" doctrine, and emphasized that some errors are not as easily recognized as others.
153. Id. at 19, 44-45, 1983 WL 482697, at *19, *44-45.
154. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 815 (1983) (referring to the qualified immunity defense as the "good faith" immunity defense, and noting that it has both an objective and a subjective element).
155. See, e.g., United States v. Riccardi, 405 F.3d 852, 863-64 (10th Cir. 2005).
156. Chief Justice Roberts described the holding of Leon as follows: "When police act under a warrant that is invalid for lack of probable cause, the exclusionary rule does not apply if the police acted 'in objectively reasonable reliance' on the subsequently invalidated search warrant. We (perhaps confusingly) called this objectively reasonable reliance 'good faith.'" Herring v. United States, 129 S. Ct. 695, 701 (2009) (citation omitted) (quoting Leon, 468 U.S. at 922 & n.23).
157. Id. at 702.
158. Id.
159. 394 U.S. 244, 253 (1969).
160. Leon, 468 U.S. at 913.
161. United States v. Peltier, 422 U.S. 531, 537 (1975) (emphasis added).
162. 428 U.S. 465, 494 (1976).
163. See, e.g., United States v. Dietz, 577 F.3d 672, 688 (6th Cir. 2009) (holding that no plain error occurred when an officer followed pre-Gant case law on searches incident to arrest).
164. Powell v. Nevada, 511 U.S. 79 (1994), provides a helpful example. Although Powell was held by the police for a longer period than was authorized by County of Riverside v. McLaughlin, 500 U.S. 44 (1991)-a case decided while Powell's appeal was on direct review-the Supreme Court held that McLaughlin was retroactive to Powell's case but stressed that this did not mean Powell was entitled to relief: It does not necessarily follow, however, that Powell must be set free, or gain other relief, for several questions remain open for decision on remand. In particular, the Nevada Supreme Court has not yet closely considered the appropriate remedy for a delay in determining probable cause (an issue not resolved by McLaughlin), or the consequences of Powell's failure to raise the federal question, or the district attorney's argument that introduction at trial of what Powell said on November 7, 1989, was "harmless" in view of a similar, albeit shorter, statement Powell made on November 3, prior to his arrest. Powell, 511 U.S. at 84 (citation and internal quotation marks omitted). There remained a range of different ways the evidence could be admitted despite the constitutional violation. On remand, the Nevada Supreme Court upheld Powell's conviction despite the Constitutional violation.
165. See Powell v. State, 930 P.2d 1123, 1126 (Nev. 1997).
166. 129 S. Ct. 1710 (2009).
167. Id. at 1719.
168. See infra notes 149-51 and accompanying text.
169. See, e.g., United States v. Debruhl, 993 A.2d 571, 578 (D.C. 2010) ("To be clear: the good faith exception cannot excuse a police officer's mistake of law; the exception applies only when a Supreme Court ruling upsets clearly settled law on which the officer had reasonably relied before the high Court's decision placed the mistake of law on the lower court, not on the officer.").
170. Groh v. Ramirez, 540 U.S. 551, 565 n.8 (2004).
171. Id. (quoting Malley v. Briggs, 475 U.S. 335, 344 (1986));
172. see also Harlow v. Fitzgerald, 457 U.S. 800, 815 (1982) (referring to qualified immunity as "good faith" immunity).
173. See Malley v. Briggs, 475 U. S. 335, 341 (1986) (noting that qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law").
174. That is, assuming that the defendants did not act in concert.
175. See Herring v. United States, 129 S. Ct. 695, 699 (2009) ("In analyzing the applicability of the rule, Leon admonished that we must consider the actions of all the police officers involved." (citing United States v. Leon, 468 U.S. 897, 923 n.24 (1984) ("It is necessary to consider the objective reasonableness, not only of the officers who eventually executed a warrant, but also of the officers who originally obtained it or who provided information material to the probable-cause determination."))).
176. Groh v. Ramirez, 540 U.S. 551, 565 n.8. (2004).
177. 480 U.S. 340, 355 (1987).
178. Id. at 354 ("In an effort to suppress evidence, a defendant has no reason not to argue that a police officer's reliance on a warrant or statute was not objectively reasonable and therefore cannot be considered to have been in good faith.").
179. 468 U.S. 897 (1984).
180. Id. at 923.
181. See Pierson v. Ray, 386 U.S. 547, 557 (1967) ("[A] police officer is not charged with predicting the future course of constitutional law.").
182. Because qualified immunity attaches unless clear precedent indicates the conduct is unlawful, the absence of case law generally means that qualified immunity is available. By analogy, under the traditional standard, the good faith exception should be triggered unless there is clear case law indicating that the search or seizure violates the Fourth Amendment. Whether this is so depends on how a court decides to interpret the good faith exception. For example, a court might require the government to identify a case on which the police officer relied, and might limit the scope of the good faith exception to reliance on that case. However, it is also possible to frame the good faith exception for new law more broadly as simply incorporating the qualified immunity standard in the suppression context.
183. See Wilson v. Layne, 526 U.S. 603, 617-18 (1999);
184. see also Groh v. Ramirez, 540 U.S. 551, 566 (2004) (Kennedy, J., dissenting) ("An officer conducting a search is entitled to qualified immunity if a reasonable officer could have believed that the search was lawful in light of clearly established law and the information the searching officers possessed. . . . [T]his is the same objective reasonableness standard applied under the 'good faith' exception to the exclusionary rule." (emphasis added) (citations and internal quotation marks omitted) (citing Anderson v. Creighton, 483 U.S. 635, 641 (1987))).
185. Wilson, 526 U.S. at 617-18.
186. See, e.g., United States v. Davis, 598 F.3d 1259, 1264 (11th Cir. 2010) (holding "that the exclusionary rule does not apply when the police conduct a search in objectively reasonable reliance on our well-settled precedent, even if that precedent is subsequently overturned");
187. United States v. McCane, 573 F.3d 1037, 1044 (10th Cir. 2009) (holding that the good faith exception applies to "a search justified under the settled case law of a United States Court of Appeals, but later rendered unconstitutional by a Supreme Court decision");
188. United States v. Debruhl, 993 A.2d 571, 578 (D.C. 2010) (interpreting the good faith exception for new law to apply "only when a Supreme Court ruling upsets clearly settled law on which the officer had reasonably relied before the high Court's decision placed the mistake of law on the lower court, not on the officer").
189. See, e.g., McCane, 573 F.3d at 1044.
190. See, e.g., DeBruhl, 993 A.2d at 578.
191. See, e.g., id.
192. Wilson, 526 U.S. at 618.
193. Id. (recognizing that police officers are not expected "to predict the future course of constitutional law").
194. The exclusionary rule was actually applied in Gant, the first case to announce the new rule of Gant. As a result, if the good faith exception applies in subsequent cases, it might be argued that as a practical matter a first-come, only-served rule is in place. However, the Justice Department has contended that the good faith exception was not applied in Gant only because the state did not ask for the exception: Indeed, Gant had no occasion to (directly) address whether the good faith exception should apply because the State in Gant focused entirely on the constitutionality of the search and failed to argue as an alternative that the good faith exception would warrant reversal. The Court's silence on a point not argued does not preclude the government from advancing, and the court of appeals from accepting, the good faith exception as a basis for affirming petitioner's conviction. Brief for the United States in Opposition at 10, McCane v. United States, No. 09-042 (U.S. 2010), available at http://www.justice.gov/osg/briefs/2009/0responses/2009-0402.resp.pdf. Thus the Justice Department appears to argue that the good faith exception should have applied even in Gant itself.
195. Stovall v. Denno, 388 U.S. 293, 296 (1967);
196. Linkletter v.Walker, 381 U.S. 618, 620 (1965).
197. See Katz v. United States, 389 U.S. 347 (1967);
198. Miranda v. Arizona, 384 U.S. 486 (1966);
199. Mapp v. Ohio, 367 U.S. 643 (1961).
200. Desist v. United States, 394 U.S. 244, 253 (1969).
201. Id.
202. United States v. Desist, 277 F. Supp. 690, 691 (S.D.N.Y. 1967).
203. Katz v. United States, 369 F.3d 130, 131-32 (9th Cir. 1966).
204. Katz, 389 U.S. at 359.
205. Desist, 394 U.S. at 253.
206. 552 U.S. 264, 269-71 (2008).
207. 479 U.S. 314, 316 (1987).
208. Desist, 394 U.S. at 258-59 (Harlan, J., dissenting).
209. Mackey v. United States, 401 U.S. 667, 675 (1971) (Harlan, J., concurring in the judgments in part and dissenting in part).
210. See, e.g., James B. Haddad, "Retroactivity Should Be Rethought": A Call for the End of the Linkletter Doctrine, 60 J. CRIM. L. CRIMINOLOGY & POL. SCI. 417 (1969);
211. Mishkin, supra note 70;
212. Kermit Roosevelt III, A Little Theory Is a Dangerous Thing: The Myth of Adjudicative Retroactivity, 31 CONN. L. REV. 1075 (1999).
213. 129 S. Ct. 695 (2009).
214. See, e.g., Erwin Chemerinsky, Moving to the Right, Perhaps Sharply to the Right, 12 GREEN BAG 413, 416 (2009) (describing Herring as "[o]ne of the most important criminal cases of the year," and arguing that it "effected the biggest change in the exclusionary rule since Mapp v. Ohio applied the rule to the states in 1961").
215. See United States v. Calandra, 414 U.S. 338, 347 (1974).