S.D.Ohio: GFE applies to pre-Gant search incident

Good faith exception applied to a pre-Gant search incident. Alternatively, other exceptions would apply. United States v. McGhee, 672 F. Supp. 2d 804 (S.D. Ohio 2009):

The circuits which have addressed the issue of whether new limitations on searches should be applied retroactively are divided. Compare United States v. Gonzalez, 578 F.3d 1130, 1133 (9th Cir. 2009) (Gant applied retroactively) with United States v. Deitz, 577 F.3d 672, 687-88 (6th Cir. 2009) (rejecting defendant’s Fourth Amendment argument concerning a warrantless search of his briefcase, noting that although the search violated Gant, the officers’ conduct was lawful in 1998 when the stop occurred); United States v. McCane, 573 F.3d 1037, 1042-45 (10th Cir. 2009) (good faith exception applied to law enforcement actions rendered invalid under Gant which were previously lawful under circuit precedent); United States v. Jackson, 825 F.2d 853, 865-66 (5th Cir. 1987) (good faith exception applied in light of officers’ reasonable reliance on prior circuit law regarding warrantless searches at checkpoint). This court concludes that even if the search is characterized as a search pursuant to defendant’s arrest, the exclusionary rule should not be applied in this case, since, at the time of the events in question, the vehicle could have been legally searched pursuant to defendant’s arrest under the existing precedent of the Sixth Circuit, and there is no evidence that the officers acted in bad faith in performing the search.

Even if the exclusionary rule would apply to a search of the vehicle incident to defendant’s arrest, the government argues that other exceptions to the Fourth Amendment warrant requirement apply to justify the warrantless searches of the defendant and his vehicle.

Defense counsel was not ineffective for not challenging the consent to search by a third person since it was clear they could consent, even though the police were responsible for defendant’s absence from the premises. United States v. Burnley, 2009 U.S. Dist. LEXIS 118285 (W.D. Wis. December 18, 2009)*:

The legitimacy of relying on Elliot’s authority to allow the search is not diminished by the fact that the police were responsible for defendant’s absence. United States v. Parker, 469 F.3d 1074, 1078 (7th Cir. 2006) (“Consent to warrantless search by someone with common authority over premises is valid as against an absent, non-consenting person with whom the authority is shared” even when the police are responsible for absence of non-consenting person) (citing Matlock, 415 U.S. 164, 94 S. Ct. 988, 39 L. Ed. 2d 242).

Defense counsel was not ineffective for not arguing that a separate consent was required for a separate part of a car search since that is not the law. United States v. Altamirano-Quintero, 2009 U.S. Dist. LEXIS 118375 (D. Colo. December 18, 2009).*