CA10 finds GFE to Gant

The Tenth Circuit today found a good faith exception to Arizona v. Gant. United States v. McCane, 573 F.3d 1037 (10th Cir. 2009). The settled law [albeit wrong?] pre-Gant is a sufficient basis for the good faith exception to apply:

Two inseparable principles have emerged from the Supreme Court cases and each builds upon the underlying purpose of the exclusionary rule: deterrence. First, the exclusionary rule seeks to deter objectively unreasonable police conduct, i.e., conduct which an officer knows or should know violates the Fourth Amendment. See, e.g., Herring, 129 S. Ct. at 701-04; Krull, 480 U.S. at 348-49.

Second, the purpose of the exclusionary rule is to deter misconduct by law enforcement officers, not other entities, and even if it was appropriate to consider the deterrent effect of the exclusionary rule on other institutions, there would be no significant deterrent effect in excluding evidence based upon the mistakes of those uninvolved in or attenuated from law enforcement. See, e.g., Evans, 514 U.S. at 14-15; Krull, 480 U.S. at 351-52; Leon, 468 U.S. at 916-17. Based upon these principles, we agree with the government that it would be proper for this court to apply the good-faith exception 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.

Just as there is no misconduct on the part of a law enforcement officer who reasonably relies upon the mistake of a court employee in entering data, Evans, 514 U.S. at 15, or the mistake of a legislature in passing a statute later determined to be unconstitutional, Krull, 480 U.S. at 349-50, a police officer who undertakes a search in reasonable reliance upon the settled case law of a United States Court of Appeals, even though the search is later deemed invalid by Supreme Court decision, has not engaged in misconduct. The refrain in Leon and the succession of Supreme Court good-faith cases is that the exclusionary rule should not be applied to “objectively reasonable law enforcement activity.” 486 U.S. at 919. Relying upon the settled case law of a United States Court of Appeals certainly qualifies as objectively reasonable law enforcement behavior.

The Supreme Court’s line of good-faith cases clearly indicates that the reach of the exclusionary rule does not extend beyond police conduct to punish the mistakes of others, be they judicial officers or employees, or even legislators. Evans, 514 U.S. at 14 (“[T]he exclusionary rule was historically designed as a means of deterring police misconduct, not mistakes by court employees.”); Krull, 480 U.S. at 350 (“We noted in Leon as an initial matter that the exclusionary rule was aimed at deterring police misconduct. Thus, legislators, like judicial officers, are not the focus of the rule.” (citation omitted)); Leon, 468 U.S. at 916 (“[T]he exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates.”). In the case of judicial officers, the Supreme Court has stated that “there exists no evidence suggesting that judges and magistrates are inclined to ignore or subvert the Fourth Amendment or that lawlessness among these actors requires application of the extreme sanction of exclusion.” Leon, 468 U.S. at 916. Thus there is no basis for believing that excluding evidence resulting from an error of the court will “have a significant deterrent effect on the issuing judge[s].” Id. Courts are neutral arbiters charged with interpreting the law, and have “no stake in the outcome of particular criminal prosecutions.” Id. at 917. Consequently, excluding evidence based on judicial error would serve no deterrent purpose. The Supreme Court has consistently relied upon the deterrent purpose of the exclusionary rule in deciding the scope of the good-faith exception. The Court has declined to apply the exclusionary rule when no deterrent effect would result from its application. Consistent with this practice, this court declines to apply the exclusionary rule when law enforcement officers act in objectively reasonable reliance upon the settled case law of a United States Court of Appeals. The good-faith exception to the exclusionary rule applies in this case. The district court therefore properly denied the motion to suppress.

So, in the Tenth Circuit, and those that chose to follow it, the fact that Gant was faithful to Chimel is ignored and any search that occurred prior to Gant is still valid if Belton was complied with, no matter that Belton was always stretched beyond its facts.

What about Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986) [not cited by the Tenth Circuit]?

If the magistrate issues the warrant in such a case, his action is not just a reasonable mistake, but an unacceptable error indicating gross incompetence or neglect of duty. The officer then cannot excuse his own default by pointing to the greater incompetence of the magistrate.

The incompetence of the Court of Appeals excuses the long running constitutional violation?