MO rejects Gant good faith exception and McCane

The search incident of defendant’s car pre-Gant for driving on a suspended license violated Gant, even though it was commonly understood that it was valid before Gant. The court concludes that Gant has to be retroactive under general rules of constitutional adjudication, and Gant would have said it wasn’t retroactive if it wasn’t supposed to be. McCane and other good faith cases are rejected because this proposed good faith exception conflicts with the principles of constitutional adjudication. Finally, the state did not show inventory as inevitable discovery. State v. Johnson, 2010 Mo. App. LEXIS 964 (July 13, 2010), Modified August 31, 2010:

The effect of using objectively reasonable reliance on case law as a basis for applying the good-faith exception would be to ignore the Supreme Court’s retroactivity rules, set forth above, in the context of Fourth Amendment cases. While truly “new” rules interpreting the Fourth Amendment might technically be applied retroactively, they could have no retroactive effect because a new constitutional rule interpreting the Fourth Amendment would in every case result in a good-faith exception to the exclusionary rule. We would recognize that the individual’s rights were violated, but we would afford him no remedy. Therefore, applying the good-faith exception to reasonable reliance on precedent would cause a tension between the good-faith exception and the retroactivity doctrine that we find unacceptable. See United States v. Gonzales, 578 F.3d 1130, 1132 (9th Cir. 2009) (in a case factually similar to Johnson’s, holding that to apply the good-faith exception would conflict with the Supreme Court’s retroactivity precedents); United States v. Buford, 623 F. Supp. 2d 923, 926-27 (M.D. Tenn. 2009). 10 Applying the good-faith exception to reasonable reliance on precedent would require that we ignore the spirit, if not the letter, of Supreme Court precedent by interpreting Gant as having “fish[ed] one case from the stream of appellate review” while “permitting a stream of similar cases… to flow by unaffected.” 11 Mackey, 401 U.S. at 679 (Harlan J., dissenting). Thus, the State, in asking us to apply the good-faith exception to reliance on case law, is effectively asking us to reinvigorate the clear break rationale, albeit under a new name, “good faith,” for new constitutional rules affecting the Fourth Amendment.

10 The State cites United States v. McCane, 573 F.3d 1037, 1039 (10th Cir. 2009), where the Tenth Circuit held that, regardless of any retroactive effect of Gant, the good-faith exception should be used to admit evidence found during a search incident to arrest that Gant would deem unconstitutional. Because we believe that both the United States Supreme Court and the Missouri Supreme Court would apply the Griffith retroactivity rule over Leon’s good-faith exception in cases where the two doctrines conflict, we do not find McCane persuasive. However, we acknowledge that a number of other courts have applied the good-faith exception to post-Gant motions to suppress. See, e.g., United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009); United States v. Lopez, Crim. Action No. 6:06-120-DCR, 2009 WL 3112127 (E.D.Ky. Sept. 23, 2009); Brown v. State, 24 So.3d 671 (Fla. Dist. Ct. App. 2009). See also United States v. Grote, No. CR-08-6057-LRS, 2009 WL 2068023 (E.D. Wash. July 15, 2009) (ruled in the alternative that, even if the search of defendant’s vehicle was not a valid search incident to arrest, evidence obtained from the search should not be excluded because the officer conducted the search in objective good faith based on pre-Gant case law).