{"id":9009,"date":"2013-07-08T11:25:47","date_gmt":"2013-07-05T07:45:29","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-07-05T07:45:29","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=9009","title":{"rendered":"TN: Good faith exception statute not retroactive — it’s ex post facto"},"content":{"rendered":"

Defendant was indicted for a marijuana grow operation in 2005. The search was not suppressed for a warrant time error, but it was reversed on appeal in 2009 because Tennessee finds that not a mere technical violation. In 2011 the legislature adopted \u201cExclusionary Rule Reform Act\u201d to adopt the good faith exception, and defendant was reindicted. The state argued the statute was retroactive and validated the 2005 search, and the trial court did not agree. The state appealed, and the Court of Criminal Appeals found the statute not retroactive. State v. Hayes<\/a>, 2013 Tenn. Crim. App. LEXIS 576 (July 1, 2013):<\/p>\n

<\/p>\n

After remand, on April 15, 2011, the Davidson County Grand Jury indicted the Defendant on six drug related charges, three of which were identical to his previous indictments. These charges stemmed from the same search we had previously found invalid.<\/p>\n

On May 23, 2011, the Governor signed into law the “Exclusionary Rule Reform Act.” The act, codified at Tennessee Code Annotated section 46-1-108, provides:<\/p>\n

Notwithstanding any law to the contrary, any evidence that is seized as a result of executing a search warrant issued pursuant to this part or pursuant to Tennessee Rules of Criminal Procedure Rule 41 that is otherwise admissible in a criminal proceeding and not in violation of the constitution of the United States or Tennessee shall not be suppressed as a result of any violation of this part or any violation of the Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c).<\/p><\/blockquote>\n

T.C.A. \u00a7 40-6-108(a) (2012). The Act specifies that is “shall take effect July 1, 2011.” 2011 Tenn. Pub. Acts ch. 252 \u00a7 2.<\/p>\n

. . .<\/p>\n

II. Analysis<\/p>\n

On appeal, the State contends that the “Exclusionary Rule Reform Act” (“the Act”) should apply retroactively to the Defendant’s case, arguing that the Act is procedural and poses no ex post facto concern. The Defendant disagrees, contending that the trial court correctly found that because the legislature had not indicated an intention for the amendment to apply retroactively, the amendment should not be applied to his case. The Defendant also argues that retroactive application of the Act would violate constitutional protections against ex post facto laws. We agree with the Defendant on both arguments.<\/p>\n

We conclude that the Act cannot be applied to the Defendant’s case for several reasons. First, the Act does not contain any indication by the Legislature that it should be applied retroactively. Second, in our view, the retroactive application of the Act violates the Defendant’s Tennessee constitutional protection against ex post facto laws because it alters the Defendant’s situation to his disadvantage. See Miller 584 S.W.2d at 761; Odom, 137 S.W.3d at 582. Before the Act’s enactment, the Defendant’s “situation” under the law applicable at that time included that the evidence against him must be suppressed because of the mistake contained in the search warrant. See Hayes, 337 S.W.3d at 235. After the enactment of the Act, that same evidence would be admissible against him. T.C.A. \u00a7 40-6-108(a) (stating “evidence … shall not be suppressed as a result of any violation of this part or any violation of the Tennessee Rules of Criminal Procedure Rule 41 if the court determines that such violation was a result of a good faith mistake or technical violation made by a law enforcement officer, court official, or the issuing magistrate as defined in subsection (c)”). This clearly places the Defendant at a disadvantage, and application of the Act to his case would, therefore, violate constitutional protections against ex post facto laws.<\/p>\n

We cannot agree with the State’s assertion that the Defendant’s “situation” being altered to his disadvantage must relate to the offense or the punishment. In Hanners, this Court addressed whether the legislative amendment to the expungement statute could nevertheless be applied in the appellant’s case to bar expungement when he would have been entitled to expungement at the time of his conviction and sentencing. We held: … <\/p>\n

… In line with this reasoning, we reject the State’s argument that the Act should apply retroactively because it does not disadvantage the Defendant’s “situation” with respect to the offense or punishment.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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