The Good Faith Exception is Good for Us. Jamesa J. Drake. On February 19, 2010, the Kentucky Court of Appeals decided Valesquez v.

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1 The Good Faith Exception is Good for Us Jamesa J. Drake On February 19, 2010, the Kentucky Court of Appeals decided Valesquez v. Commonwealth. In that case, the Commonwealth conceded that, under the new constitutional precedent set forth in Gant, the warrantless search of the defendant s car violated the Fourth Amendment. The Commonwealth then went on to argue that, the illegal search notwithstanding, the equities of these circumstances justify the application of the good faith exception to the exclusionary rule. In response, the Court of Appeals remarked: Whether the good faith exception to the exclusionary rule may be utilized, as a matter of law, to preserve the admissibility of evidence discovered from searches conducted pursuant to settled law at the time of the search is an open question. (Emphasis added). 1 Notice how the court framed the question. The Court of Appeals believes that Gant overturned settled law. The more accurate reading of Gant, however, is that it simply clarified Belton and corrected many of the lower court decisions which held (erroneously) that Belton searches were reasonable regardless of the possibility of the defendant s access to the interior compartment of the vehicle. 1 The Court of Appeals erroneously believes that, as to the question of whether the good faith exception applies to searches conducted prior to a change in the case law, [t]he law is currently emerging and unsettled. As explained herein, the Court of Appeals is mistaken in that regard, also. Thankfully, the Court of Appeals rejected the Commonwealth s argument by simply noting that until it receives additional guidance, it would elect to follow the dicta set forth by the Kentucky Supreme Court in King v. Commonwealth, declaring that the Leon good faith exception is clearly limited to warrants invalidated for lack of probable cause and does not create a broad good faith exception for any illegal search. (Internal citation omitted).

2 That Gant clarified, rather than overturned, any existing Supreme Court case law is confirmed by Thornton, which was decided five years before Gant. Justice Scalia s opinion concurring in the judgment in Thornton (which became the majority opinion in Gant) and Justice O Connor s separately concurring opinion both made abundantly clear that those lower court decisions were on very shaky ground. See O Connor, J., concurring in part ( I write separately to express my dissatisfaction with the state of the law in this area. ); Scalia, J., concurring in the judgment ( When petitioner s car was searched in this case, he was neither in, nor anywhere near, the passenger compartment of his vehicle. Rather, he was handcuffed and secured in the back of the officer s squad car. The Court s efforts to apply our current doctrine to this search stretches it beyond its breaking point, and for that reason I cannot join the Court s opinion. ). Justices Stevens and Souter dissented altogether. Prosecutors and police officers who failed to heed the warnings of four Supreme Court Justices in Thornton now seek to rely on the good faith exception to the exclusionary rule to excuse their oversight in Gant cases. That strategy is not new. Prosecutors often argue that, in general, an officer s reliance on any legal precedent settled or not is covered by the good faith exception. 2 2 On March 1, 2010, the United States Supreme Court denied petitioner Markice McCane s petition for certiorari. The question presented was: Whether the goodfaith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional. The police searched Mr. McCane s automobile, believing that Belton authorized them to do so. The search was subsequently found to be invalid under Gant.

3 Kentucky Courts should not be fooled. And, neither should you. The good faith exception to the exclusionary rule is a narrow one. Prosecutors love to cite the good faith exception, but it applies in only the most unusual circumstances. Thus, for all practical purposes, the good faith exception is good for us, not them. The United States Supreme Court has decided only four good faith cases. In United States v. Leon, the Court held that the good faith exception applied when the police relied on a search warrant later found to be constitutionally invalid. 3 In Illinois v. Krull, the Court held that the good faith exception applied when the police relied on a statute later found to be invalid. In Arizona v. Evans and Herring v. United States, the Court held that the good faith exception applied when, due to third-party record keeping errors, the police mistakenly believed that outstanding warrants (which, it turned out had been quashed or recalled) authorized the suspects arrest. That s it. Unless and until the Court holds otherwise, the good faith exception is limited to three situations: (1) a search or seizure pursuant to a warrant later found to be constitutionally invalid; (2) a search or seizure pursuant to a statute later found to be invalid; and (3) a search or seizure pursuant to a warrant later found 3 Of course, suppression remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth, or if the issuing magistrate wholly abandoned his detached and neutral judicial role. Nor would an officer s manifest objective good faith in relying on a warrant based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Finally, depending on the circumstances of the particular case, a warrant may be so facially deficient-i.e., in failing to particularize the place to be searched or the things to be seized-that the executing officers cannot reasonably presume it to be valid.

4 to have been quashed or recalled. Notably absent from that list is any indication that the police (acting either on their own or at the direction of a prosecutor) may be excused for relying on their own misunderstanding of law. The crucial fact in both Evans and Herring was that a third-party, rather than the police themselves, erred. The Court has long rejected the argument that the exclusionary rule applies when police reasonably rely on overturned case law. In Katz v. United States, which was decided in 1967, the police planted a listening device on a telephone in a public telephone booth without a warrant. At the time the device was planted, such warrantless monitoring was lawful under Olmstead v. United States and Goldman v. United States. The Court overruled both those cases in Katz. It then rejected the government s argument that the evidence in question should be admitted because the officers reasonably relied on then-existing case law: The Government urges that, because its agents relied upon the decisions in Olmstead and Goldman, and because they did not do more here than they might properly have done with prior judicial sanction, we should retroactively validate their conduct. That we cannot do. Even assuming, arguendo, that the good faith exception does apply in when the police act in reliance on case law, the Gant Court itself rejected the notion that the good faith exception applied to searches believed (erroneously) to be valid under the extension of Belton applied in some, but not all, lower courts. Justice Alito, in his dissenting opinion (which was joined by Chief Justice Roberts and Justices Kennedy and Breyer) lamented that, the Court s decision will cause the suppression of

5 evidence gathered in many searches carried out in good faith reliance on well-settled case law. The Gant majority did not correct or deny Justice Alito s assertion. Instead, it agreed with Justice Alito that the good faith exception was inapt: Although it appears that the State s reading of Belton has been widely taught in police academies and law enforcement officers have relied on the rule in conducting vehicle searches during the past 28 years, many of these searches were not justified by the reasons underlying the Chimel exception. The fact that the law enforcement community may view the State s version of the Belton rule as an entitlement does not establish the sort of reliance interest that could outweigh the countervailing interest that all individuals share in having their constitutional rights fully protected. If it is clear that a practice is unlawful, individuals interest in its discontinuance clearly outweighs any law enforcement entitlement to its persistence. Finally, the Court s retroactivity decisions foreclose any argument that the good faith exception applies to any search undertaken before some change in the case law. The Court has long held that a 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. United States v. Johnson; see also Griffith v. Kentucky. The good faith exception is good for defendants because each time the Commonwealth claims that it applies, it necessarily concedes that the search or seizure in question was unlawful. The good faith exception is also good for

6 defendants because it almost never applies. When the County Attorney or Attorney General in your next case argues that the good faith exception to the exclusionary rule applies in your case, you can rest easy in the knowledge that, in all but the most unusual cases, you will win.