{"id":4224,"date":"2010-12-29T07:28:43","date_gmt":"2010-05-27T06:47:06","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-05-27T06:47:06","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4224","title":{"rendered":"Cal.1: Gant<\/em> not retroactive"},"content":{"rendered":"

Gant did not apply to a search for evidence of driving on a suspended license because it was not reasonable to believe that evidence of that offense would be found. Gant<\/a>, however, is not found to be retroactive to a search occurring before it was decided. People v. Henry<\/a>, 184 Cal. App. 4th 1313, 110 Cal. Rptr. 3d 85 (1st Dist. 2010), Modified and rehearing denied by People v. Henry, 2010 Cal. App. LEXIS 924 (Cal. App. 1st Dist., June 18, 2010):<\/p>\n

We see no discernable difference between the application of the good faith exception as in Krull<\/a>, supra, 480 U.S. 340, when police rely upon a statute later determined to be unconstitutional, and police reliance upon prior decisional law subsequently changed by a decision of the United States Supreme Court. Suppression of the evidence seized by the police in the present case in reasonable reliance upon more than a quarter of a century of case law interpreting Belton<\/a>, supra, 453 U.S. 454 to permit the search, would in no way deter future police misconduct, the primary purpose of the exclusionary rule. Indeed, application of the exclusionary rule in a situation such as this, where the police did not \u201cblunder,\u201d but rather did precisely what the courts told them was acceptable under the Fourth Amendment, would offend basic precepts of the criminal justice system by allowing criminals (including dangerous ex-felons who possess a firearm) to go free because of a major change in decisional law that occurred after their conduct. Such offensive results serve only to undermine public confidence in the judicial system. That being the case, even though Gant<\/a>, supra, 129 S.Ct. 1710 may apply retroactively to defendant’s case, the evidence seized from defendant’s car should nevertheless be admissible under the good faith exception to the exclusionary rule.<\/p>\n

Because of Gant<\/a>‘s substantial departure from what was, by the decision’s own admission, established case law interpreting the search-incident-to-arrest exception in the context of vehicle searches under Belton<\/a>, supra, 453 U.S. 454, this precise issue has now been the subject of several published opinions. Recent decisions on this issue in federal courts were summarized in United States v. Amos (E.D. Tenn., Jan. 5, 2010, No. 3:08-CR-145) ___ F.Supp. ___ [2010 WL 56086], \u201cThere is presently a split between the Circuit Courts of Appeals as to whether the good faith exception applies to searches in violation of Gant that were conducted pre-Gant. Compare United States v. McCane<\/a> [(10th Cir. 2009)] 573 F.3d 1037 (holding that the good-faith exception to the exclusionary rule applies to searches which occurred before Gant), with United States v. Gonzalez [(9th Cir. 2009) 578 F.3d 1130 (Gonzalez)] (holding that the good faith exception does not apply to pre-Gant searches). District courts within the Sixth Circuit are also divided as to whether the good faith exception applies. Compare United States v. Lopez (E.D. Ky. Sept. 23, 2009, No. 6:06-120-DCR [2009 WL 3112127] (applying the good-faith exception) with [United States v.] Peoples (W.D. Mich., Oct. 29, 2009, No. 1:09-CR-170) [2009 WL 3586564] (stating that \u2018good[-]faith reliance upon case law cannot excuse suppression under the current formulation and application of the good[-]faith doctrine\u2019); see also United States v. Buford<\/a> (M.D. Tenn. 2009) 623 F.Supp.2d 923, 927 (\u2026 the extension of the good[-]faith exception would cause \u2018perverse results\u2019 in that case).\u201d From among the collection of cases addressing the issue, we believe those decisions applying the good faith exception are better reasoned.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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