FL declines to to apply Davis GFE where cell phone search issue was being actively litigated all over

Where everybody knew that the law wasn’t settled at the time of the search of defendant’s cell phone before Riley because the issue was being litigated everywhere and in this state, the state doesn’t get the benefit of the Davis good faith exception. The court adopts Sotomayor’s Davis concurrence. Carpenter v. State, 2017 Fla. LEXIS 1433 (June 29, 2017):

Perhaps the most instructive aspect of Davis, for our purposes, is Justice Sotomayor’s opinion concurring in judgment, which predicted the issue arising in the present case and explicitly stated that the holding in Davis did not answer the question of the good-faith exception’s application to areas of law that were unsettled at the time of the search. Davis, 564 U.S. at 250-51 (Sotomayor, J., concurring in judgment). This is such a case. Aside from the national variation on the issue of warrantless cell phone searches incident to arrest, the very fact that the case on which the officers relied was under active review in this Court indicates that the law was not yet settled as to the issue of warrantless cell phone searches in Florida at the time of Carpenter’s search for purposes of the Davis analysis. The First District’s certified question to this Court only furthers the notion that the officers in Carpenter’s case should not have relied on Smallwood I as being the final controlling judicial precedent in this area of constitutional law while the case was certified to this Court for final decision. Since the issue decided in Smallwood I was one concerning a rapidly developing area of unsettled law at the time of the officers’ alleged reliance, the State’s reliance on the United States Supreme Court’s holding in Davis to justify the search is misplaced. Furthermore, the dissent attempts to broadly force cases with vastly different facts into Davis’s application, which is precisely what Justice Sotomayor predicted would happen.

Finally, in determining whether exclusion is warranted in this case, we must determine whether the deterrent benefits of exclusion outweigh the heavy societal costs. enforcement officers that warrantless searches are the exception to the rule and that this exception should only be used when specifically authorized by law. The rule on searches in questionable areas of law is simple and unequivocal: Get a warrant. See Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971) (“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.'” (emphasis added)); see also Riley v. California, 134 S. Ct. 2473, 2493, 189 L. Ed. 2d 430 (2014) (“Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow “weighed” against the claims of police efficiency.'” (quoting Coolidge, 403 U.S. at 481, 491)).

If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolving the unsettled question.

Davis, 564 U.S. at 250-51 (Sotomayor, J., concurring in judgment) (quoting United States v. Johnson, 457 U.S. 537, 561, 102 S. Ct. 2579, 73 L. Ed. 2d 202 (1982)); see also Lee, 862 F. Supp. 2d at 569 (“If law enforcement could ‘rely on non-binding authority …’ officers would ‘beg forgiveness rather than ask permission in ambiguous situations involving … basic civil rights.'” (citations omitted)). The scenario described above is the exact scenario at issue in Carpenter’s case. Holding that the good-faith exception applies when officers rely on developing law that facially demonstrates the status of further review is a slippery slope which essentially abrogates the exclusionary rule in cases concerning unsettled law. The deterrent benefits of exclusion in Carpenter’s case outweigh the societal costs because exclusion reminds law enforcement officers that warrantless searches are the exception to the rule and that this exception should only be used when specifically authorized by law. The rule on searches in questionable areas of law is simple and unequivocal: Get a warrant.
See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (“[T]he most basic constitutional rule in this area is that ‘searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.’” (emphasis added)); see also Riley v. California, 134 S. Ct. 2473, 2493 (2014) (“Our cases have historically recognized that the warrant requirement is ‘an important working part of our machinery of government,’ not merely ‘an inconvenience to be somehow “weighed” against the claims of police efficiency.’ ” (quoting Coolidge, 403 U.S. at 481, 491)).

Therefore, contrary to the dissent, we hold that, under Davis, the good-faith exception to the exclusionary rule does not apply to Carpenter’s case because the officers were not relying on the type of longstanding, thirty-year appellate precedent at issue in Davis, but rather on a non-final, pipeline case still under active review in this Court at the time of the search.