{"id":3349,"date":"2010-03-18T03:37:36","date_gmt":"2009-08-31T11:23:14","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-08-31T11:23:14","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3349","title":{"rendered":"CA9: GFE does not apply to Gant<\/em>"},"content":{"rendered":"

Disagreeing with the Tenth Circuit<\/a>, the Ninth Circuit, on a Gant<\/a> remand, holds that the good faith exception does not apply under Gant<\/a>. United States v. Gonzalez<\/a>, 578 F.3d 1130 (9th Cir. August 25, 2009), reh. den. en banc 2010 U.S. App. LEXIS 5365 (9th Cir. March 16, 2010):<\/p>\n

[1] The Government\u2019s assertion is not directly supported by our current case law. The Government relies on the Supreme Court\u2019s recent decision in Herring v. United States, 129 S. Ct. 695 (2009), which applied the good faith exception of United States v. Leon, 468 U.S. 897 (1984), in holding that whether the exclusionary rule should be applied to a search in violation of the Fourth Amendment \u201cturns on the culpability of the police and the potential of exclusion to deter wrongful police conduct.\u201d Herring, 129 S. Ct. at 698. Neither the Supreme Court nor our court, however, has applied the good faith exception to the scenario we face: a search conducted under a then-prevailing interpretation of a Supreme Court ruling, but rendered unconstitutional by a subsequent Supreme Court ruling announced while the defendant\u2019s conviction was on direct review. The cases the Government relies on involve application of the good faith exception to searches conducted in reliance on a warrant held invalid following the search; see, e.g., Herring 129 S. Ct. at 698; or a statute or regulation subsequently found unconstitutional during direct review of the defendant\u2019s conviction; see, e.g., Illinois v. Krull, 480 U.S. 340 (1987); United States v. Peltier, 422 U.S. 531 (1975); United States v. Meek, 366 F.3d 705 (9th Cir. 2004).<\/p>\n

[2] We conclude, however, that this case should be controlled by long-standing precedent governing the applicability of a new rule announced by the Supreme Court while a case is on direct review. The Court has held that \u201ca decision of this Court construing the Fourth Amendment is to be applied retroactively to all convictions that were not yet final at the time the decision was rendered.\u201d United States v. Johnson, 457 U.S. 537, 562 (1982); see Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (finding that even decisions constituting a \u201cclear break\u201d with past precedent have retroactive application). This precedent requires us to apply Gant to the current case without the overlay of an application of the good faith exception. To hold that Gant may not be fully applied here, as the Government urges, would conflict with the Court\u2019s retroactivity precedents.<\/p>\n

[3] Such a ruling would undermine the rationale of Johnson and Griffith. As stated in Griffith, \u201cfailure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication.\u201d 479 U.S. at 314. It would violate \u201cthe integrity of judicial review\u201d by turning the court into, in effect, a legislative body announcing new rules but not applying them, rather than acting in our proper role as an adjudicative body deciding cases. It also would \u201cviolate[ ] the principle of treating similarly situated defendants the same\u201d by allowing only one defendant to be the beneficiary of a newly announced rule. Id. at 322-23. In Gant, the Supreme Court upheld in full the decision of the Arizona Supreme Court, which not only found the search at issue unconstitutional, but ordered the suppression of the evidence found as a result of the unconstitutional search. See Gant, 129 S. Ct. at 1724; State v. Gant, 162 P.3d 640, 646 (Ariz. 2007). Hence, refusal to allow Gonzalez similarly to benefit from the Court\u2019s ruling in Gant through application of the exclusionary rule would implicate the same concerns mandating the Court\u2019s holding in Griffith. <\/p>\n

[4] Because both Johnson and Griffith remain binding precedent,we cannot apply the good faith exception here without creating an untenable tension within existing Supreme Court law. We, therefore, hold that evidence derived from the search at issue must be suppressed and reverse Gonzalez\u2019s conviction.<\/p><\/blockquote>\n

[Hat tip to the Federal Defenders: This was posted on the Federal Defenders of Eastern Washington and Idaho Blog<\/a>. This case is not yet on Lexis.]<\/p>\n","protected":false},"excerpt":{"rendered":"

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