CA6: Exclusionary rule not applied to pre-Gant search–question is not whether Gant applies, but what is the remedy

The search incident in this case occurred before Gant but the suppression hearing was after Gant, and the search was lawful when it happened but violated Gant. The Sixth Circuit, in a long opinion, concludes that the exclusionary rule would not be applied because the officers acted in good faith. United States v. Buford, 632 F.3d 264, 2011 FED App. 0043P (6th Cir. 2011):

The Supreme Court’s jurisprudence is clear: “Whether the exclusionary sanction is appropriately imposed in a particular case … is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S. 213, 223 (1983)); see also Masters, 614 F.3d at 242 (“[T]he Supreme Court has … emphasized that the decision to exclude evidence is divorced from whether a Fourth Amendment violation occurred.”). The latter was decided by Gant; the former was not. Thus, “[t]he issue before us … is not whether the Court’s ruling in Gant applies to this case, it is instead a question of the proper remedy upon application of Gant to this case.’” McCane, 573 F.3d at 1044 n.5. That remedy is governed by the Supreme Court’s decisions in Leon, Evans, Krull, and Herring.

When this case is properly viewed in that context, it is apparent that suppression is not warranted. Although the Supreme Court has not yet directly addressed the question presently before this court, its review of comparable issues is instructive. In Leon, the Court declined to require suppression when an officer reasonably relied on an invalid warrant to conduct the search because “[p]enalizing the officer for the [court’s] error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.” 468 U.S. at 920-21. The same holding applies when an officer relies on a statute later declared invalid, Krull, 480 U.S. 340, 359-60; on judicial records that erroneously reflect an outstanding warrant, Evans, 514 U.S. at 14-16; or on the police’s own warrant database that, through police negligence, erroneously contains a withdrawn warrant. Herring, 129 S. Ct. at 704.

Applying the governing legal principles of these decisions to the facts of the case before us, we join the Fifth, Tenth, and Eleventh Circuits in holding that exclusion is not the appropriate remedy when an officer reasonably relies on a United States Court of Appeals’ well-settled precedent prior to a change of that law. See Peltier, 422 U.S. at 542 (“[U]nless we are to hold that parties may not reasonably rely upon any legal pronouncement emanating from sources other than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or constitutional norm.”). The fact that appellate precedent is later overturned is not enough to justify suppression, since the “exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges[,]” Leon, 468 U.S. at 916, and there is “no meaningful distinction” between relying on an invalid search warrant issued by a court and relying on settled precedent that, at the time of the search, held such warrantless searches to be lawful. Davis, 598 F.3d at 1266.