VA: State gets to argue GFE after a Carpenter remand even though it never raised the question before Carpenter was decided

Defendant was the subject of warrantless CSLI pre-Carpenter, and he petitioned for cert while Carpenter was pending. After Carpenter was decided, his case was GVR’d back to the state court of appeals. Reed v. Virginia, 138 S. Ct. 2702 (2018). The defendant argued the good faith exception was waived by the state, which this court rejected and held the good faith exception applied. Reed v. Commonwealth, 69 Va. App. 332, 819 S.E.2d 446 (2018). The state supreme court reversed to allow defendant to further argue waiver. On remand, the court holds that the state gets to argue the good faith exception by analogy to the “right result, wrong reason” doctrine because it didn’t have the benefit of Carpenter when it filed its original briefs. Reed v. Commonwealth, 2019 Va. App. LEXIS 263 (Nov. 12, 2019).

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