Short answer: No.
In response to this district’s Gant litigation (Arizona v. Gant, 129 S.Ct. 1710 (2009)(see discussion here), the government is now claiming that suppression is not an appropriate remedy for a pre-Gant search, based upon law enforcement’s ”good faith” belief in a broad application of New York v. Belton, 453 U.S. 454 (1981). This is a meritless argument. The Supreme Court rejected this approach to the exclusionary rule 22 years ago. Defense counsel need to be wary of the “good faith” issue and make sure prosecutors and the courts know the law. Here’s a little primer:
“[A] decision of [the Supreme] 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, 457 U.S. 537, 542-43 (1982). This retroactivity rule applies even when a Supreme Court decision adopts a new rule that constitutes a clear break with past cases. Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Under this standard, a case is not final so long as it remains under direct review. Id. at 321, n.6.
A bit of Supreme Court history explains why the aforementioned ”new rule” doctrine means that the exclusionary rule applies to Gant violations in all pending cases, even those where the search took place prior to Gant.
Prior to Griffith v. Kentucky, the Supreme Court’s decisions with respect to whether a defendant would get the benefit of a new Supreme Court rule were inconsistent and confusing. One of the cases issued prior to Griffith was Desist v. United States, 394 U.S. 244 (1969). Desist held that the decision announced in Katz v. United States, 389 U.S. 347 (1967) (holding that the Fourth Amendment applies in the context of electronic surveillance) would only apply prospectively to searches conducted after Katz. The Court refused to apply the exclusionary rule to evidence obtained prior to Katz, since the exclusionary rule’s potential for deterrence was less effective in this context. 394 U.S. at 249-50.
Justice Harlan dissented from Desist. 394 U.S. at 256. According to Justice Harlan, basic principles of fairness and sound judicial administration require that all defendants on direct review be given equal benefit of a new Supreme Court decision. Id. at 259. While Harlan did not think that new rules should be applied retroactively to cases on habeas review (394 U.S. at 260), he did think that Katz should have applied to Mr. Desist and that Mr. Desist’s case should have been remanded “for further consideration in light of Katz.” 394 U.S. at 259.
In Griffith, the Supreme Court overruled Desist and adopted Justice Harlan’s analysis. 479 U.S. at 322. The Court simplified the test for applying “new rules” to pending cases by holding that new rules apply to all pending cases, even if the rules amount to a clear break with prior past practices. Id. at 329. Griffith’s “new rule” doctrine balances the need for equal treatment with the desire to “validate[ ] reasonable, good faith interpretations of existing precedents.” Butler v. McKellar, 494 U.S. 407, 414 (1990).
Griffith means that as long as a case is pending on direct review, the defendant gets the benefit of Gant. Just as suppression applied in Mr. Gant’s case, it applies in all Fourth Amendment cases that are not yet final.
There is already one district court decision, rejecting the government’s attempt to avoid Gant pursuant to Griffith v. Kentucky. See United States v. Buford, 2009 WL 1635780 (M.D. Tenn. June 11, 2009). Defense counsel are encouraged to contact the Federal Defenders for sample briefing on this issue. Any comments about how Gant is playing out in pending cases is also encouraged.
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