On remand from Byrd v. United States, 138 S. Ct. 1518, 200 L. Ed. 2d 805 (May 14, 2018), the Third Circuit applies the good faith exception to standing because the law at the time in the circuit was that there was no standing, and Davis forecloses relief. United States v. Byrd, 2018 U.S. App. LEXIS 22058 (3d Cir. Aug. 8, 2018):
Byrd argues that Davis is inapposite because there, “the precedent authorized the search,” whereas here, “the precedent did not authorize the search-it merely precluded Mr. Byrd from objecting to it.” Appellant’s Supp. Reply Br. 6. Without citing any authority for the proposition, Byrd contends that Davis “has no application where the search may be unconstitutional, but the party has no Fourth Amendment standing.” Id.
Davis and the Supreme Court’s decision in this case foreclose this argument. To start, there is no material difference between the Circuit precedent at issue in Davis and our precedent in Kennedy: Each held that a certain kind of search was lawful under the Fourth Amendment, so each “specifically authorize[d] a particular police practice.” Davis, 564 U.S. at 241 (emphasis omitted); see United States v. Katzin, 769 F.3d 163, 176 (3d Cir. 2014) (en banc) (“We construe, arguendo, this language narrowly to mean that the relied-upon case must affirmatively authorize the precise conduct at issue in the case under consideration.”). Byrd’s suggestion notwithstanding, there is no plausible argument that the search here “may [have] be[en] unconstitutional” from the officers’ perspective when it was conducted, as Kennedy expressly permitted such searches. Appellant’s Supp. Reply Br. 6. And, to the extent that Kennedy was phrased in terms of “Fourth Amendment standing,” the Supreme Court, in overturning it, explained that, while “most courts analyzing the question presented in this case, including the Court of Appeals here, ha[d] described it as one of Fourth Amendment ‘standing,'” that is “a concept the Court has explained is not distinct from the merits and is ‘more properly subsumed under substantive Fourth Amendment doctrine.'” Byrd III, 138 S. Ct. at 1530 (quoting Rakas v. Illinois, 439 U.S. 128, 139 (1978)). In short, Davis controls, and we will affirm Byrd’s convictions on that basis.
As one commentator has noted, while Davis may “amount[] in practice to a Fourth Amendment exception from traditional retroactivity rules,” it represents an effort to balance the need to “develop the law in the broad array of contexts in which Fourth Amendment questions arise” against the “genuine social costs” of applying remedies such as the exclusionary rule in cases where “the police are not acting culpably.” Orin S. Kerr, Fourth Amendment Remedies and Development of the Law: A Comment on Camreta v. Greene and Davis v. United States, 2010-2011 Cato Sup. Ct. Rev. 237, 238, 253 (2011).
My difference with the court is that standing is an ability to contest claim of reasonable expectation of privacy, not the merits of the search on whether the police went too far as in Gant and Davis. The Third Circuit, anticipating this argument, cites Rakas and Byrd that standing is part of the merits.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)