MI: Gant retroactive; no GFE

The search of defendant’s car was unreasonable under Gant. While SCOTUS was silent on retroactivity v. applying a good faith exception, the court concludes it must be retroactive. People v. Mungo, 288 Mich. App. 167, 792 N.W.2d 763 (2010), on remand from People v. Mungo, 483 Mich. 1091, 2009 Mich. LEXIS 1343 (2009), appeal granted by People v. Mungo, 789 N.W.2d 666 (Mich., Oct. 29, 2010):

Whether reliance on case law can form a basis to invoke the good faith exception to the exclusionary rule is a significant legal question. The United States Supreme Court is silent on this issue. The Sixth Circuit and Tenth Circuit federal courts of appeal have expanded the good faith exception to apply to a law enforcement officer’s reliance on case law. In McCane and similarly in Lopez, however, it was the clear and established law of the circuit that law enforcement officers were vested with the right to search a vehicle incident to a recent occupant’s arrest. McCane, 573 F3d at 1041-1042 (citing several Tenth Circuit opinions upholding searches without regard to the nature of the offense and where the defendant was already restrained); Lopez III, 655 F Supp 2d at 726 (“Like its sister circuits prior to Gant, the Sixth Circuit recognized as lawful under Belton searches of vehicles conducted incident to an arrest even in circumstances where the arrestee did not have access to the passenger compartment of his car.”). See also Grote I, 629 F Supp 2d at 1205 (noting that at the time the defendant’s vehicle was searched it was “well accepted in the Ninth Circuit and elsewhere” that police could search a motor vehicle incident to a lawful arrest, “without regard to whether an arrestee was secured or unsecured, and without regard to whether evidence particular to the crime of arrest might be found in the vehicle.”).

Assuming without deciding that reliance on Michigan case law can form a basis to invoke the good faith exception to the exclusionary rule, we conclude that the exception does not apply in the present case. Unlike Lopez and McCane, where the case law in each circuit was established and clear, the instant case represented the first published case in Michigan to address the applicability and extension of Belton to a vehicle search solely incident to a passenger’s arrest. Indeed, this panel published our prior opinion in this matter because we concluded this issue presented a matter of first impression in Michigan. Given our conclusion that the law in this state on this point was not established and clear, the search and seizure of evidence from defendant’s vehicle could not, as a matter of law, have been premised on law enforcement’s good-faith reliance on case law. We therefore conclude that the good faith exception to the exclusionary rule has no application in the present case. Pursuant to the retroactivity doctrine, defendant is entitled to have the rule of law announced in Gant applied to this case.