WA: Gant retroactive and GFE applied

Washington applies the good faith exception to a search incident that occurred and was legal pre-Gant, following McCane (post here) that the police would not be deterred by suppression. State v. Riley, 154 Wn. App. 433 (2010) (dissent). The court discussing the conflicting cases.

¶1 Relying on the prevailing interpretation of a United States Supreme Court case, a police officer searched Eugene Riley’s car incident to his arrest under circumstances later declared unconstitutional in Arizona v. Gant. Because United States Supreme Court retroactivity precedent requires the retroactive application of “clear break” Fourth Amendment rules, the officer violated Riley’s Fourth Amendment rights. But the officer in this case was acting in good faith reliance on existing Fourth Amendment law. We therefore hold that under federal constitutional law, suppressing the evidence establishing methamphetamine possession would not deter police misconduct and apply the good faith exception to the exclusionary rule. While it appears the Washington Supreme Court could have a more restrictive view of the good faith exception to the exclusionary rule, its recent decisions rejecting suppression of evidence seized in reliance on a presumptively valid statute support applying the good faith exception to the exclusionary rule under article I, section 7 of our constitution. We therefore affirm the conviction.

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¶8 We agree that the rule announced in Gant must be applied retroactively in accordance with the constitutional principles stated in Griffith. We therefore hold that Thompson violated Riley’s Fourth Amendment rights when he conducted the postarrest search of Riley’s car with Riley secure in the back of a patrol car.

¶9 Having established a Fourth Amendment violation, we must next determine what remedy applies. While the Fourth Amendment does not expressly preclude “‘the use of evidence obtained in violation of its commands,’” United States Supreme Court “decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial.” Because the exclusionary rule is “‘designed to safeguard Fourth Amendment rights generally through its deterrent effect,’” it “applies only where it ‘result[s] in appreciable deterrence.’” Recognizing that the exclusionary rule “cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity,” the United States Supreme Court established the good faith exception to the exclusionary rule and has repeatedly applied the rule in circumstances where police have not engaged in misconduct.

¶10 In United States v. McCane, an officer conducted a pre-Gant search of the arrestee’s vehicle consistent with Tenth Circuit precedent adopting the widely-understood, but now erroneous, interpretation of Belton. Although the Tenth Circuit agreed that the search was unconstitutional under Gant, it determined that relying on settled Tenth Circuit case law is “‘objectively reasonable law enforcement activity.’” Reasoning that suppressing evidence found during a search conducted in compliance with controlling case law could not and would not deter police misconduct, the Tenth Circuit declined to apply the exclusionary rule. We adopt that reasoning.

Note: Another case from Washington came to a different conclusion. State v. McCormick, 152 Wn. App. 536, 216 P.3d 475 (2009) (post here). So, the Washington Supreme Court will have to resolve it.