CA9: GFE does not apply to Gant

Disagreeing with the Tenth Circuit, the Ninth Circuit, on a Gant remand, holds that the good faith exception does not apply under Gant. United States v. Gonzalez, 578 F.3d 1130 (9th Cir. August 25, 2009), reh. den. en banc 2010 U.S. App. LEXIS 5365 (9th Cir. March 16, 2010):

[1] The Government’s assertion is not directly supported by our current case law. The Government relies on the Supreme Court’s recent decision in Herring v. United States, 129 S. Ct. 695 (2009), which applied the good faith exception of United States v. Leon, 468 U.S. 897 (1984), in holding that whether the exclusionary rule should be applied to a search in violation of the Fourth Amendment “turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.” Herring, 129 S. Ct. at 698. Neither the Supreme Court nor our court, however, has applied the good faith exception to the scenario we face: a search conducted under a then-prevailing interpretation of a Supreme Court ruling, but rendered unconstitutional by a subsequent Supreme Court ruling announced while the defendant’s conviction was on direct review. The cases the Government relies on involve application of the good faith exception to searches conducted in reliance on a warrant held invalid following the search; see, e.g., Herring 129 S. Ct. at 698; or a statute or regulation subsequently found unconstitutional during direct review of the defendant’s conviction; see, e.g., Illinois v. Krull, 480 U.S. 340 (1987); United States v. Peltier, 422 U.S. 531 (1975); United States v. Meek, 366 F.3d 705 (9th Cir. 2004).

[2] We conclude, however, that this case should be controlled by long-standing precedent governing the applicability of a new rule announced by the Supreme Court while a case is on direct review. The Court has held that “a decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.” United States v. Johnson, 457 U.S. 537, 562 (1982); see Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (finding that even decisions constituting a “clear break” with past precedent have retroactive application). This precedent requires us to apply Gant to the current case without the overlay of an application of the good faith exception. To hold that Gant may not be fully applied here, as the Government urges, would conflict with the Court’s retroactivity precedents.

[3] Such a ruling would undermine the rationale of Johnson and Griffith. As stated in Griffith, “failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.” 479 U.S. at 314. It would violate “the integrity of judicial review” by turning the court into, in effect, a legislative body announcing new rules but not applying them, rather than acting in our proper role as an adjudicative body deciding cases. It also would “violate[ ] the principle of treating similarly situated defendants the same” by allowing only one defendant to be the beneficiary of a newly announced rule. Id. at 322-23. In Gant, the Supreme Court upheld in full the decision of the Arizona Supreme Court, which not only found the search at issue unconstitutional, but ordered the suppression of the evidence found as a result of the unconstitutional search. See Gant, 129 S. Ct. at 1724; State v. Gant, 162 P.3d 640, 646 (Ariz. 2007). Hence, refusal to allow Gonzalez similarly to benefit from the Court’s ruling in Gant through application of the exclusionary rule would implicate the same concerns mandating the Court’s holding in Griffith.

[4] Because both Johnson and Griffith remain binding precedent,we cannot apply the good faith exception here without creating an untenable tension within existing Supreme Court law. We, therefore, hold that evidence derived from the search at issue must be suppressed and reverse Gonzalez’s conviction.

[Hat tip to the Federal Defenders: This was posted on the Federal Defenders of Eastern Washington and Idaho Blog. This case is not yet on Lexis.]