MO: Even though SI was well after Gant, state hadn’t overruled prior authority, so David GFE applies

Even though Gant was decided in 2009, and Davis good faith post-Gant was decided in 2011, and the search incident here was in 2012, the good faith exception would be applied to save an unreasonable search incident because the state courts never overruled binding authority before the search. [Apparently, SCOTUS decisions are only advisory in Missouri on the Fourth Amendment? One almost has to take off one’s glasses, wipe them clean, and look again. Yes, that’s what it says. What machination. Would SCOTUS even grant cert in such a twisting of the good faith exception?] State v. Carrawell, 2016 Mo. LEXIS 3 (Jan. 12, 2016):

Here, Carrawell was handcuffed and locked in the back of a police car at the time Officer Burgdorf searched the plastic bag. It matters not whether this bag was more akin to luggage or more akin to a purse. Neither is part of the person. It matters only whether the bag was within Carrawell’s immediate control. Because it was not, there was not a valid search incident to arrest. E.g., United States v. Matthews, 532 Fed. Appx. 211, 218 (3d Cir. 2013); United States v. Maddox, 614 F.3d 1046, 1049 (9th Cir. 2010); People v. Redmond, 73 Ill. App. 3d 160, 390 N.E.2d 1364, 1374, 28 Ill. Dec. 774 (Ill. App. 1979). The state has not demonstrated any other exception to the warrant requirement applies.

That the search here was unlawful is not dispositive, however. “[W]hen an officer conducts a search incident to arrest in ‘objectively reasonable reliance’ on binding appellate precedent that is later overturned, the exclusionary rule does not suppress the evidence obtained as a result of that search.” State v. Johnson, 354 S.W.3d 627, 630 (Mo. banc 2011). “[T]he exclusionary rule is triggered only when police practices are ‘deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system.'” Id. at 633 (quoting Davis v. United States, 564 U.S. 229, 131 S.Ct. 2419, 2428, 180 L. Ed. 2d 285 (2011)). “[O]fficers act in good faith when they objectively rely on binding directives from the judiciary and the legislature even though these directives may be later overturned.” Id. at 634. At the time of Officer Burgdorf’s search, there was court of appeals precedent authorizing officers to search an arrestee’s personal effects as a search incident to arrest, even if such items were not within the arrestee’s immediate control. See, e.g., Ellis, 355 S.W.3d at 524-25. Although such searches should no longer be deemed lawful, the exclusionary rule will not apply to this case. Accordingly, the circuit court did not err or abuse its discretion in overruling Carrawell’s motion to suppress evidence of the heroin discovered in Carrawell’s plastic bag.

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