Good Faith, the Fourth Amendment and Arizona v. Gant

Last week, William H. Campbell and Professor Orin S. Kerr filed a petition for writ of certiorari in McCane v. United States, No. 09-402, asking for the Supreme Court’s guidance on a three-way split among lower courts on the scope of the good-faith exception to the exclusionary rule. The petition can be viewed here.

Beginning with United States v. Leon, 468 U.S. 897 (1984), the Supreme Court has repeatedly emphasized that not all evidence procured from illegal searches is automatically excluded from trial. The so-called “good-faith exception” allows evidence to be admitted when law enforcement agencies conduct good-faith searches that are later deemed unconstitutional. When and how the good-faith exception applies was the subject of the McCane petition.

Prior to the defendant’s appeal, the Supreme Court modified the rule for law enforcement searches of automobiles incident to arrest. The Court, in Arizona v. Gant, 556 U.S. __ (2009), held that police may conduct a warrantless vehicle search incident to arrest only if the arrestee is within reaching distance of the vehicle or if officers have reasonable belief that “evidence of the offense of arrest might be found in the vehicle.”

The Tenth Circuit applied Gant, concluding that the search of McCane’s vehicle violated the Fourth Amendment. The court nevertheless held that the suppression of evidence was not necessary, because the police officer conducted the search in good faith and in reliance of the Supreme Court’s previous rule in Belton. In doing so, the court aligned itself with the Fifth Circuit and two state Supreme Courts.

The Tenth Circuit applied Gant, concluding that the search of McCane’s vehicle violated the Fourth Amendment. The court nevertheless held that the suppression of evidence was not necessary, because the police officer conducted the search in good faith and in reliance of the Supreme Court’s previous rule in Belton. In doing so, the court aligned itself with the Fifth Circuit and two state Supreme Courts.

Other courts of appeals have come to different conclusions on the application of the good-faith doctrine. The Ninth Circuit has held that the good-faith exception to the exclusionary rule never applies when a new Supreme Court ruling deviates from previous decisions allowing certain types of searches to be performed. In such cases, the new decision prohibiting a search and requiring suppression of the evidence is fully applicable. Taking a middle-of-the-road approach, the First and Seventh Circuits sometimes apply the good-faith doctrine, depending on the circumstances. Specifically, when law enforcement agencies use evidence from the unlawful searches to manufacture probable cause later used to obtain a search warrant, the First and Seventh Circuits apply the good-faith doctrine.

The McCane petition argues that the Court’s guidance is needed to settle a “deep,” “irreconcilable,” and “recurring” conflict among the lower courts. The Court’s review is also needed, the petition contends, because the Tenth Circuit’s opinion below directly conflicts with the Court’s precedents, including Arizona v. Gant.