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).
The same thing happened to Rodriguez on remand in the Eighth Circuit.
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.