CA8: Rodriguez loses on remand to Davis GFE [the ultimate perversion of good faith: the guy whose case made the rule loses, too]

WaPo: Volokh Conspiracy: Rodriguez wins, Rodriguez loses by Orin Kerr (United States v. Rodriguez, 2015 U.S. App. LEXIS 15675 (8th Cir. September 3, 2015):

An important theme in Fourth Amendment law these days is the rights/remedy gap. Over the past few years, courts have interpreted the Fourth Amendment broadly in some interesting ways. But when they have, a broad “good-faith exception” kicks in and takes away any remedy for the violation that results from the court’s broad interpretation. The result makes a lot of high-profile Fourth Amendment litigation mostly prospective. It’s often clear at the outset that the defendant will lose eventually. The litigation is mostly about whether the defendant will lose on the right or lose on the remedy, with the difference being the prospective application of the rule.

To be clear, I’m no fan of this development. I have argued against it in articles (here and here) and in briefs and argument in Davis v. United States. But the Supreme Court is going in a different direction, so that’s all just academic.

That brings me to a new case on the rights/remedy gap, Rodriguez v. United States, handed down Thursday by the Eighth Circuit. Rodriguez is on remand from April’s Supreme Court decision of the same name, which held that the government violated the Fourth Amendment by extending a traffic stop for seven or eight minutes while waiting for drug-sniffing dogs. According to the Supreme Court in Rodriguez, a traffic stop must end “when tasks tied to the traffic infraction are — or reasonably should have been — completed.” The Fourth Amendment does not permit an extension to wait for the dogs, so Rodriguez’s Fourth Amendment rights were violated.

On remand, the Eighth Circuit says that Rodriguez loses anyway. Eighth Circuit law “provided that a brief delay to employ a drug dog did not constitute an unconstitutional seizure, as long as the traffic stop was not unreasonably prolonged.” Because the stop here was not unreasonably prolonged, the Davis good-faith exception applies, and there is no remedy for the violation. In response to Rodriguez’s point that he wouldn’t have litigated the case to the Supreme Court if he had known he would have lost anyway on the remedy, the Eighth Circuit offers the Supreme Court’s answer from Davis: “[A] good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions” because “defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue.” In other words, Rodriguez’s incentive doesn’t matter. If he hadn’t litigated the issue, someone else might have.