ID: No good faith exception to Gant, noting conflict

The search of defendant’s car incident to his arrest on a failure to appear warrant, where he was already hooked up and in the police car, violated Gant, decided a year later. Gant is retroactive, and, noting the conflict in the courts, the good faith exception should not apply to case law. Here, the officer offered no reason why the car was searched, so it is assumed it was a search incident. State v. Frederick, 149 Idaho 509, 236 P.3d 1269 (2010):

Predictably, this tension has led to sharply divergent results from the courts that have considered this question. A number of courts have applied the exception, recognizing that there is a distinction between recognizing the constitutional violation and providing an appropriate remedy for the violation and concluding that the deterrent purpose underlying the exclusionary rule is not advanced when officers have relied on existing case law. See People v. Henry, Cal. Rptr. 3d , 184 Cal. App.4th 1313 (Cal. App. 1 Dist. 2010); United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); State v. Baker, 2010 UT 18, 229 P.3d 650 (Utah 2010); State v. Riley, 154 Wn. App. 433, 225 P.3d 462 (Wash. App. Div. 1 2010); United States v. McCane, 573 F.3d 1037 (10th Cir. 2009); United States v. Gray, 2009 U.S. Dist. LEXIS 113436, 2009 WL 4739740 (D. Neb. Dec. 7, 2009) (noting the Ninth, Seventh, and Sixth Circuits have refused to apply the good faith exception while the Fifth and Tenth Circuits have held Leon’s good-faith exception applies to warrantless searches considered lawful under the case law existing when the search was performed); Brown v. State, 24 So.3d 671, 680-82 (Fla. App. 5th Dist. 2009).

Other courts have found the tension resulting from application of the good faith exception to be “untenable” and accordingly declined to apply the exception. People v. McCarty, 229 P.3d 1041 (Colo. 2010); State v. Harris, 154 Wn. App. 87, 224 P.3d 830 (Wash. App. Div. 2 2010); United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009) rehearing and rehearing en banc denied, 598 F.3d 1095 (9th Cir. 2010).

Yet other courts have recognized that retroactivity rules do not automatically exclude application of the good faith exception, yet have declined to apply the exception because the scope of Belton was not sufficiently defined as to warrant a finding of objective good faith by the law enforcement officials conducting the search. The Court of Appeals for the District of Columbia concluded that the scope of permissible searches of automobiles was not “settled law” and therefore declined to apply Leon. United States v. Debruhl, 993 A.2d 571 (D.C. 2010). Similarly, the Michigan Court of Appeals declined to apply the exception in the context of the search of an automobile pursuant to the arrest of a passenger in the vehicle, finding the question of extension of Belton to such circumstances to be a question of first impression. People v. Mungo, 2010 Mich. App. LEXIS 610, 2010 WL 1461620 (Mich. App. Apr. 13, 2010).

It is our view that retroactivity rules do not preclude application of the good faith exception when an officer relies on case law. We note, however, that the Supreme Court has emphasized that the good faith described in United States v. Leon “must be objectively reasonable.” 468 U.S. at 922. The burden of proving that such objectively reasonable good faith reliance existed is on the State. State v. Smith, 144 Idaho 482, 485, 163 P.3d 1194, 1197 (2007) (holding that “[t]he burden of proof is on the state to show that the search … fell within one of the well-recognized exceptions to the warrant requirement.”) In this case, the State has failed to meet that burden.