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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 09-CO-1208
U NITED S TATES, A PPELLANT,
V.
L ORENZO A LI D EBRUHL, A PPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-982-09)
(Hon. Gerald I. Fisher, Trial Judge)
(Argued February 4, 2010
Decided April 22, 2010)
Roy W. McLeese III, Assistant United States Attorney, with whom Channing D.
Phillips, Acting United States Attorney, and Lara Worm, and Ann K. H. Simon, Assistant
United States Attorneys, were on the brief, for appellant.
Thomas W. Farquhar for appellee.
Chris Kemmitt, Public Defender Service, with whom James Klein, Samia Fam, and
Corinne Beckwith, Public Defender Service, were on the brief for amicus curiae Public
Defender Service.
Before R EID and K RAMER, Associate Judges, and F ERREN, Senior Judge.
F ERREN, Senior Judge:
This case presents the question whether the federal
“exclusionary rule” should be applied retroactively to a pending case after the Supreme Court
has issued a decision expanding Fourth Amendment protection that would benefit the
defendant if the rule applies.
2
At the time of appellee Debruhl’s arrest for a traffic violation, New York v. Belton,1
as commonly interpreted, allowed the police to search the passenger compartment of an
automobile without a warrant, and virtually without restriction, when incident to a lawful
arrest. Before Debruhl’s trial, however, in Arizona v. Gant,2 the Supreme Court narrowed
Belton by precluding warrantless searches of an automobile after the occupants had been
removed and secured with handcuffs, and thus no longer remained a threat to police safety
or to preservation of evidence. The parties agree that Gant’s revised interpretation of the
Fourth Amendment applies retroactively to all cases “not yet final.”3 Therefore, because
Debruhl, like Gant, had been removed from his car and handcuffed before the arresting
officers conducted their search, it is undisputed that the search of Debruhl’s car was
unconstitutional. As a consequence, argues Debruhl, the evidence seized from his car –
cocaine and related drug paraphernalia – must be suppressed under the traditional
exclusionary rule.
To the contrary, says the government, the evidence is admissible under the “goodfaith” exception to the exclusionary rule because of the officers’ reasonable, objective
reliance on “settled law” – on the Belton line of cases – while conducting their search before
1
453 U.S. 454 (1981).
2
129 S. Ct. 1710 (2009).
3
Griffith v Kentucky, 479 U.S. 314, 328 (1987).
3
Gant was decided. We cannot agree. As interpreted in this jurisdiction and in several federal
circuits, Belton did not reflect “settled law” on which police officers could reasonably rely
in conducting the warrantless search on the facts of this case. We therefore agree with the
trial court’s decision to reject the good-faith exception and suppress the evidence seized from
Debruhl’s car. Accordingly, we affirm.
I. F ACTS AND P ROCEEDINGS
On January 11, 2009, Metropolitan Police Department officers observed appellee
Lorenzo Ali Debruhl driving an Oldsmobile with its lights off between 1:00 and 2:00 a.m.
in the 900 block of Hamilton Street, N.E. Officers Cepeda and Eglund decided to conduct
a traffic stop of the car and ran a check of its license plate. While the officers were asking
for Debruhl’s driver’s license and registration, their inquiry on the license plate came back
showing no record or listing for the tags. Upon checking the registration provided by
Debruhl, the officers found that it matched the license plate but not the car. A subsequent
check of the vehicle identification number revealed that the car was unregistered. Officer
Eglund asked Debruhl to step out of the car, placed him under arrest, then handcuffed him.
Debruhl was escorted by Officer Cepeda to a spot behind the car while Officer Eglund
searched the passenger compartment. During the search, the officer recovered a brown paper
bag from under the driver’s seat. Inside the bag were a pair of gloves, a digital scale, razor
4
blades, an unspecified amount of currency, and “a clear plastic bag containing a white rock
substance” that field-tested positive for cocaine.
A grand jury indicted Debruhl on one count of possession of a controlled substance
with intent to distribute,4 and one count of possession of drug paraphernalia.5 Before trial,
Debruhl filed a motion to suppress the drugs and drug paraphernalia, and the motion was
heard on September 11, 2009. Although the trial court credited the testimony of Officer
Cepeda that the search had been made incident to Debruhl’s arrest, the court inquired of
counsel whether the Supreme Court’s recent Gant decision required it to suppress the
evidence as the product of a search that violated the Fourth Amendment.
The Gant case grew out of the search of a car incident to an arrest for a traffic offense
on August 25, 1999.6 The suspect, Gant, had been handcuffed and secured in a squad car
while the police searched his car and located a bag of cocaine in the pocket of a jacket on the
back seat.7 Gant filed a motion to suppress the evidence, arguing that the search was
unauthorized under the Fourth Amendment because, being handcuffed and stowed in the
4
D.C. Code § 48-904.01 (a)(1) (2001).
5
D.C. Code § 48-1103 (a) (2001).
6
Gant, supra note 2, 129 S. Ct. at 1714-15.
7
Id. at 1715.
5
squad car, he had not posed a threat to the officers and, further, because his stop for a traffic
offense did not authorize a search for evidence.8 The trial court rejected these arguments,
but the Arizona Court of Appeals reversed, suppressing the evidence. The Arizona Supreme
Court affirmed the suppression order in an opinion issued on July 25, 2007, stressing that
once the scene had been secured, New York v. Belton did not justify a search of the car
incident to an arrest to protect officer safety or preserve destructible evidence.9
Arizona sought review in the United States Supreme Court, which granted certiorari
on February 25, 2008. Oral arguments were held on October 7, 2008, and the decision came
down on April 21, 2009, little more than three months after Debruhl’s arrest and search. In
Gant, the Supreme Court affirmed the Arizona Supreme Court ruling: with Gant handcuffed
and held in the squad car, there had been no risk to police officer safety nor any need to
search the car for evidence related to his arrest for a traffic offense. This decision appeared
to be at odds with the traditional understanding of the Court’s bright-line rule in Belton,
permitting indiscriminate search of a vehicle’s passenger compartment incident to a lawful
arrest.
8
9
Id.
Arizona v. Gant, 162 P.3d 640, 646 (2007). The Arizona Supreme Court added:
“The State has advanced no alternative theories justifying the warrantless search of Gant’s
car, and we note that no other exception to the warrant requirement appears to apply.” Id.
The court therefore did not inquire into the good-faith exception to suppression of evidence
under the Fourth Amendment exclusionary rule.
6
During discussion of Debruhl’s suppression motion, the government conceded that
Gant applied retroactively;10 Debruhl’s Fourth Amendment rights had been violated. The
government added, however, that despite the unlawful search, the good-faith exception to the
exclusionary rule should apply because the officers had done nothing wrong.11 They had
reasonably relied on Belton’s bright-line rule (as interpreted by this court) in conducting the
search, and thus suppression of the evidence would not serve the principal purpose of the
rule: to deter police misconduct.12
After discussion of Gant and relevant case law, the trial court ruled that the good-faith
exception did not apply, and that the exclusionary rule accordingly survived the
government’s challenge. The court granted the defense motion and suppressed the evidence
of drugs and drug paraphernalia on September 24, 2009. The government then filed this
pretrial appeal.13
10
See Griffith, supra note 3, 479 U.S. at 328.
11
See United States v. Leon, 468 U.S. 897 (1984) (holding exclusionary rule
inapplicable to evidence obtained by police officers acting in reasonable reliance on search
warrant later held invalid).
12
13
Id. at 909.
D.C. Code § 23-104 (a)(1) (2001).
7
II. E XCLUSIONARY R ULE N OT T IED TO R ETROACTIVITY
OF F OURTH A MENDMENT R ULING
Before addressing the government’s argument based on the good-faith exception, we
deal briefly with Debruhl’s argument – adopted by the trial court – that under Supreme Court
authority retroactive application of a Fourth Amendment ruling includes application of the
exclusionary rule.
Because no one disputes that Gant’s Fourth Amendment ruling applies retroactively
to Debruhl – that is, no one questions that the search of Debruhl’s car and seizure of evidence
from it were unconstitutional – the exclusionary rule, says Debruhl, is inherent in the Fourth
Amendment and flows retroactively as well. To the contrary, replies the government, the
exclusionary rule no longer is considered an “essential part”14 of the Fourth Amendment
“right to privacy,”15 and thus retroactive applicability of the Fourth Amendment does not
necessarily imply retroactive application of the exclusionary rule, without exception; these
14
Compare Mapp v. Ohio, 367 U.S. 643, 649, 657 (1962) (“[T]he Weeks rule is of
constitutional origin”; the “exclusionary rule is an essential part of both the Fourth and
Fourteenth Amendments.”) with Illinois v. Gates, 462 U.S. 213, 223 (1983) (“The question
whether the exclusionary rule's remedy is appropriate in a particular context has long been
regarded as an issue separate from the question whether the Fourth Amendment rights of the
party seeking to invoke the rule were violated by police conduct.”).
15
Mapp, supra note 14, 367 U.S. at 651, 654, 655 (1961) (characterizing Fourth
Amendment as a “right to privacy”); United States v. Rabinowitz, 339 U.S. 56, 66 (1950)
(same); Harris v. United States, 331 U.S. 145, 150 (1947) (same); Gouled v. United States,
255 U.S. 298, 304 (1921) (same); Silverthorne Lumber Co. v. United States, 251 U.S. 385
(1920) (same).
8
issues are separate.16
Debruhl relies primarily on United States v. Johnson 17 where the Court applied,
retroactively, to a case on direct appeal, the Fourth Amendment rule announced earlier in
Payton v. New York,18 and affirmed the reversal of Johnson’s conviction and suppression of
evidence unlawfully seized from him. The government had offered an “objective” good-faith
exception to retroactive application of Payton, formulated in a way that the Court
characterized as “an absurdity.”19
The government, however, was contending against
retroactive application of the Fourth Amendment decision itself, not merely against
retroactive application of the exclusionary rule; the government made no effort to separate
16
See Gates, supra note 14, 462 U.S. at 223.
17
457 U.S. 537 (1982).
18
445 U.S. 573 (1980). The Court gave Johnson retroactive benefit of Payton,
barring warrantless, nonconsensual entry into a suspect’s home to make a routine felony
arrest. Payton had not been decided at the time of Johnson’s arrest, but the Court affirmed
its retroactive application because, until Payton, the law governing warrantless arrests in the
home was unsettled; Payton was not a “clear” or “sharp” break from past decisions.
Johnson, supra note 17, 457 U.S. at 553-54. Later, however, in Griffith, supra note 3, the
Court abandoned its unwillingness to grant retroactive application to new criminal rules that
reflected a “clear break” with the past. The Court held in Griffith that “a new rule for the
conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal,
pending on direct review or not yet final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past” (emphasis added). Griffith, supra note 3, 479 U.S.
at 328.
19
Johnson, supra note 17, 457 U.S. at 560.
9
the exclusion remedy from the Fourth Amendment right.20 As a result, the defendant
received the benefit of the rule without a contest over it, and thus Debruhl cannot claim that
Johnson necessarily precludes the government from presenting a “good-faith exception”
argument for admission of the evidence seized from his car.
Gant presents a closer question, as language from both the Court’s opinion and the
principal dissent suggest that both sides assumed suppression would follow from retroactive
application of the Court’s decision.21 That said, none of the opinions in Gant expressly
acknowledged, let alone addressed, that assumption. We are therefore left to deal with the
issue anew in connection with the good-faith exception.
In doing so, it is important to keep in mind that we are considering an “exception.”
The government does not dispute that, if the good-faith exception is not satisfied, the
20
The Court in Johnson noted: “For the purposes of this case, the Government
assumes the correctness of the Court of Appeals’ ruling that, if applied to these facts, Payton
would require exclusion of respondent’s statements. . . . We therefore need not examine the
Court of Appeals’ conclusion on that issue.” Id. at 541 n.6.
21
In dissent, Justice Alito warned that “the Court’s decision will cause the
suppression of evidence gathered in many searches carried out in good-faith reliance on wellsettled case law.” Gant, supra note 2, 129 S. Ct. at 1726. Justice Stevens, writing for the
majority, did not disagree with this conclusion but instead noted the limited impact this
would have because “the doctrine of qualified immunity will shield officers from liability
for searches conducted in reasonable reliance on that understanding.” Id. at 1722 n.11.
Justice Stevens added that the “reliance interest” at stake did not outweigh “the
countervailing interest that all individuals share in having their constitutional rights fully
protected.” Id. at 1723.
10
exclusionary rule will apply to a defendant whose Fourth Amendment rights have been
violated, and all unlawfully seized evidence will be suppressed. In short, absent the
exception, retroactive application of the Fourth Amendment will include retroactive
application of the exclusionary rule as well.
III. T HE “G OOD-F AITH” E XCEPTION
The government argues for the good-faith exception based on the police officers’
reliance on the Belton line of cases allegedly reflecting “settled law” at the time of Debruhl’s
arrest.
Three central questions are presented:
First, what exactly is the good-faith
exception? Second, in what situations does the good-faith exception apply? Third, assuming
that the good-faith exception could be available here, did the Belton line of cases reflect law
that was “settled” enough to justify reasonable reliance on it by the officers who searched
Debruhl’s car?
We take up the first question. In United States v. Leon,22 a police officer relied on a
search warrant that had been issued by a state Superior Court judge but later was found to
have lacked probable cause. The Supreme Court, applying what it called a “good faith”
22
Supra note 11.
11
exception23 to the exclusionary rule, rejected the ruling of the trial court (sustained by the
court of appeals) that suppressed the evidence seized. The Court justified admission of the
evidence because of the officer’s “objectively reasonable” reliance on the subsequently
invalidated warrant.24 Three years later, in Illinois v. Krull,25 the Court extended Leon’s
ruling to a police officer’s warrantless administrative search conducted in reasonable, goodfaith reliance on a statute later declared unconstitutional. And less than a decade thereafter,
in Arizona v. Evans,26 the Court applied the exception to an officer who had “objectively
reasonably” relied on mistaken information in a court database indicating that an arrest
warrant was outstanding. Most recently, in Herring v. United States,27 the Court invoked the
“good-faith” exception when an officer reasonably believed that there was an outstanding
arrest warrant in a neighboring county, but his belief, it turned out, had been wrong because
of a police employee’s negligent bookkeeping error.
In this latest iteration of the good-faith exception in Herring, the Court rejected its
earlier characterization of the exclusionary rule in Mapp v. Ohio as an inherent Fourth
23
See Leon, supra note 11, 468 U.S. at 924.
24
Id. at 926.
25
480 U.S. 340 (1987); see Michigan v. DeFillippo, 443 U.S. 31 (1979) (upholding
arrest made in good-faith reliance on city ordinance later held unconstitutionally vague).
26
514 U.S. 1 (1995).
27
129 S. Ct. 695 (2009).
12
Amendment right.28 Instead, the Court emphasized that the rule “applies only where it
‘results in appreciable deterrence’” of police misconduct,29 meaning that “the benefits of
deterrence must outweigh the costs,” principally the cost of “letting guilty and possibly
dangerous defendants go free”30 Summarizing the Court’s latter-day exclusionary rule
jurisprudence, the Chief Justice explained in Herring:
[I]n Krull we elaborated that “evidence should be suppressed
‘only if it can be said that the law enforcement officer had
knowledge, or may properly be charged with knowledge, that
the search was unconstitutional under the Fourth Amendment.’”
480 U.S., at 348-349 (citation omitted) . . . . To trigger the
exclusionary rule, police conduct must be sufficiently deliberate
that exclusion can meaningfully deter it, and sufficiently
culpable that such deterrence is worth the price paid by the
justice system. As laid out in our cases, the exclusionary rule
serves to deter deliberate, reckless, or grossly negligent conduct,
or in some circumstances recurring or systemic negligence. . . .
We have already held that “our good-faith inquiry is confined to
the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal” in
light of “all of the circumstances.” Leon, 468 U.S., at 922,
n.23.[31]
28
Compare Mapp, supra note 14, 367 U.S. at 649, 657 with Herring, supra note 27,
129 S. Ct. at 700 (“the exclusionary rule is not an individual right and applies only when it
result[s] in appreciable deterrence”) (citations and internal quotation marks omitted).
29
Herring, supra note 27, 129 S. Ct. at 700 (quoting Leon, supra note 11, 468 U.S.
at 909) (other citation omitted)).
30
Id. at 701 (quoting Leon, supra note 11, 468 U.S. at 910).
31
Id. at 701-703.
13
This summary, of course, was presented in the context of police-officer reliance on
a warrant, a statute, or other official record germane to an anticipated search. The ultimate
question for us, therefore, in determining whether the good-faith exception applies, is
whether Officers Egland and Cepeda properly relied, instead, on appellate court opinions in
deciding whether the warrantless search of Debruhl’s car was constitutional.
More
specifically, can a police officer’s reliance on appellate opinions supply the check on police
behavior – and thus serve as the basis for objective good faith – that statutes, warrants, and
other official records provide in advance of a search?
IV. “M ISTAKE OF L AW ” V . G OOD-F AITH E XCEPTION
Proponents of the good-faith exception over the years have assumed that it would
apply in all Fourth Amendment cases, not just in situations where retroactive application of
a Fourth Amendment ruling is at issue. Justice White, for example, has written without
reference to retroactivity that the exclusionary rule should “be more generally modified to
permit the introduction of evidence obtained in the reasonable good-faith belief that a search
or seizure was in accord with the Fourth Amendment.” 32 That generalization, however,
reflects serious overstatement. When asking whether the good-faith exception is available
32
Leon, supra note 11, 468 U.S. at 909 (quoting Gates, supra note 14, 462 U.S. at 255
(White, J., concurring)).
14
to a police officer who relied on particular case law to justify the warrantless search of an
automobile, it is important to recognize that we are considering only a situation in which the
Supreme Court has modified a settled rule of law on which the officer relied before the high
Court ruled. The exception is not available in the typical “mistake-of-law” scenario
confronted regularly in the local trial and appellate courts; and it is very important to
understand the distinction here. If the good-faith exception is not properly circumscribed,
it can legitimate the very dangers that mistake-of-law analysis has been developed to
prevent.
A. Mistake of Law
Mistake-of-law cases do not involve modifications – whether “clarifications” or
“overrulings”– by a higher court. More simply, they concern whether an officer’s unlawful
actions can be excused by a good-faith but erroneous understanding of the law (without the
additional complication of a Supreme Court intervention). For example, assume that
Debruhl’s case came to this court before Gant, and that the arresting officers – aware,
presumably, of this court’s decisions applying Belton – searched Debruhl’s car after
escorting him away from it in handcuffs.33 Further assume that when the case came before
33
Whenever we speak of an officer’s being aware of the “court’s decisions” or the
“case law” or “appellate opinions,” we do not mean actual, subjective awareness (although
police trainers do instruct on the law and officers come to know it). Rather, for purposes of
(continued...)
15
this court, it was a case of first impression in the sense that this fact pattern (a “secured”
suspect) had not appeared for decision in any of our previous Belton-type cases. And assume,
finally, that we decided (foreshadowing Gant) that the officers had relied improperly on
Belton, that the search had violated the Fourth Amendment, and thus that the evidence seized
must be suppressed.
In this situation, the officer’s mistake of law in relying on Belton-type cases that did
not consider the crucial, factual distinction between Debruhl and Belton would not excuse
an unconstitutional search or prevent the resulting suppression of evidence. This is true even
if we were to conclude that the officers, in light of earlier cases, had a reasonable if not
conclusive basis for believing that a judge would rule in their favor. As to the facts the
officers confronted, the law was not “settled” until this court ruled, contrary to the officers’
expectations.
Courts are explicit: “The justifications for the good-faith exception do not extend to
situations in which police officers have interpreted ambiguous precedent or relied on their
own extrapolations from existing caselaw”(emphasis added).34 “To create an exception here
33
(...continued)
evaluating legal responsibility, we are speaking of imputed awareness; an officer is
presumed to know the law of the jurisdiction the officer is enforcing.
34
United States v. Davis, No. 08-16654, 2010 WL 810984, at *6 (11th Cir. Mar. 11,
(continued...)
16
would defeat the purpose of the exclusionary rule, for it would remove the incentive for
police to make certain that they properly understand the law that they are entrusted to enforce
and obey.”35 To be clear: the good-faith exception cannot excuse a police officer’s mistake
of law; the exception applies only when a Supreme Court ruling upsets clearly settled law on
which the officer had reasonably relied before the high Court’s decision placed the mistake
of law on the lower court, not on the officer.
B. Applying Good Faith Exception
We turn now to the good-faith exception as it applies to the situation actually before
us: Debruhl’s case came to this court after Gant. The government argues that the officers
acted in reasonably objective (good faith) reliance on Belton and this court’s interpretations
34
(...continued)
2010).
35
United States v. Lopez-Soto, 205 F.3d 1101, 1106 (9th Cir. 2000); accord United
States v. Chanthasouxat, 342 F.3d 1271, 1280 (11th Cir. 2002) (“[T]he good faith exception
established by United States v. Leon [citation omitted] should not be extended to excuse a
vehicular search based on an officer’s mistake of law.”); United States v. Lopez-Valdez, 178
F.3d 282, 289 (5th Cir. 1999) (good-faith, though erroneous, belief that broken taillight
violated Texas Transportation Code was unreasonable and does not justify good-faith
exception to exclusionary rule because “potential for abuse of traffic infractions as pretext
for effecting stops seems boundless and the costs to privacy excessive”);United States v.
Simon, 368 F.Supp.2d 73, 78-79 (D.D.C. 2005) (“Exclusion of the evidence . . . serves the
purpose of encouraging law enforcement officers to know the bounds of their authority,
which . . . is especially important since there is a ‘fundamental unfairness [in] holding
citizens to ‘the traditional rule that ignorance of the law is no excuse’ while allowing those
‘entrusted to enforce’ the law to be ignorant of it.’” (Citations omitted.))
17
of it. If our cases interpreting Belton, as the government suggests, had “settled” that the
officers were allowed to conduct a warrantless search on the facts they encountered in
Debruhl – that is, if our case law was not ambiguous as to that situation – then, theoretically,
the test for the good-faith exception would have been met. The law would have been settled
as explicitly as the permission reflected in a judicially-approved warrant (Leon) or an
unambiguous statute (Krull), because all material facts presented in Debruhl would have
been congruent with those in which previous warrantless searches had received this court’s
blessing.
On the other hand, if our case law on which the officers relied was ambiguous, as
applied to the factual scenario at issue in Debruhl, then the officers would not have relied
on “settled” law, and the good-faith exception would not apply.36 Indeed, if the exception
were to apply in this situation, we would be legitimating a “mistake-of-law” basis for the
good-faith exception. More specifically, if this court were to grant the officer slack in
determining what facts were material, we would be delegating to the officer, not reserving
to the court, interpretation of the facts and law controlling application of the Fourth
36
Three federal circuits, before Gant, held that Belton did not authorize a warrantless
search in Gant/Debruhl circumstances. See United States v. Green, 324 F.3d 375, 379 (5th
Cir. 2003) (search unauthorized by Belton where arrestee lay handcuffed on ground several
feet from vehicle); United States v. Edwards, 242 F.3d 928, 938 (10th Cir. 2001) (search not
authorized by Belton where arrestee was handcuffed and seated in police vehicle); United
States v. Vasey, 834 F.2d 782, 787 (9th Cir. 1987) (search not authorized by Belton where
arrestee was handcuffed and secured in police car for more than half hour before search).
18
Amendment and the exclusionary rule. Put still another way, this court would be allowing
the officer to rely on relevant, but not controlling, case law to authorize admission of
evidence that the court itself might well have suppressed before the Supreme Court
announced modification of Belton in Gant.
We turn, therefore, to the question whether the officers here relied on “settled” law
that, before Gant, would have permitted their search of Debruhl’s car.
V. D ID THE O FFICERS R ELY ON S ETTLED L AW ?
The government argues that a substantial majority of those informed in constitutional
law would have concluded that, as of the time of Debruhl’s arrest, Belton, as commonly
interpreted, permitted the search and seizure directed at Debruhl. Accordingly, says the
government, whether Gant was a “clarification”37 of Belton, as Justice Stevens opined for the
majority, or an overruling,38 as Justice Alito wrote for the four dissenters, it was enough of
a surprise that Officers Egland and Cepeda could not be faulted for acting in accord with
Belton’s traditional interpretation and searching Debruhl’s passenger compartment. Their
behavior, concludes the government, was “objectively reasonable,” and thus in “good faith,”
37
Id. at 1719.
38
Id. at 1721, 1726 (Alito, J., dissenting).
19
consistent with the exclusionary rule exception announced in United States v. Leon.39
It is not possible to answer this ultimate, “good-faith” question without understanding
in more detail how police-officer reliance on appellate opinions works, and whether these
opinions would provide the “settled law” justifying a search that, say, the clear authority of
a warrant offers. First, how is “settled law” defined? Is it merely the applicable rule, such
as Justice Stewart’s bright-line articulation of the auto compartment search in Belton? What
if the rule is quite general, such as the “totality of the circumstances” formula for finding
probable to cause to arrest based on an informant’s tip in Illinois v. Gates? 40 Or, focusing
more broadly, is “settled” law always an applicable rule as applied to a particular pattern of
facts, such that an appellate opinion will not reflect settled law for good-faith exception
purposes unless the facts are close, in all material respects, to those confronted by the police
officer?
Second, what appellate opinions are relevant for determining “settled law”? Only
those in the officer’s own jurisdiction? What if opinions from this court and from the D.C.
Circuit germane to the search are in conflict? What about opinions from other jurisdictions
more directly applicable to the facts of the officer’s case? Do Supreme Court opinions in
39
See supra note 11.
40
See Gates, supra note 14, 462 U.S. at 238.
20
tension with those in the officer’s local jurisdiction undermine the judicial authority on which
the officer would otherwise rely? How do Supreme Court hints, through concurrences and
dissents showing dissatisfaction with the Court’s own previous rulings, factor in – if at all?
In short, what is the jurisprudential universe from which a police officer is to discern “settled
law,” applicable to the anticipated search, that would justify the good-faith exception to
suppression of evidence seized unlawfully?
The discussion begins with Chimel v. California,41 governing warrantless searches
incident to arrest. The Court held in Chimel that police officers may conduct such searches
only within the space under the suspect’s “immediate control,” defined as “the area from
within which he might gain possession of a weapon or destructible evidence.” 42 That test
became problematic for searches of vehicles incident to the arrest of the driver or other
occupants in the vehicle, the issue before the Court in Belton.
A. Belton
In Belton, after stopping the car for speeding, a police officer came upon four men in
the car and, while conversing with them, smelled burnt marijuana and saw an envelope inside
41
395 U.S. 752 (1969).
42
Id. at 763.
21
the vehicle, which he associated with that substance.43 The officer ordered all four out of the
car, placed them under arrest for unlawful possession of marijuana, patted each of them
down, split them into four separate locations on the Thruway, and searched the passenger
compartment.44 There he found marijuana in the envelope and cocaine in a jacket on the
back seat belonging to Belton, who moved to suppress that evidence after his indictment for
criminal possession of a controlled substance.45 The New York Court of Appeals reversed
the lower courts’ denial of Belton’s suppression motion, ruling that a “warrantless search of
the zippered pockets of an unaccessible jacket may not be upheld as a search incident to a
lawful arrest where there is no longer any danger that the arrestee or a confederate might gain
access to the article.” 46
The Supreme Court reversed, announcing a bright line rule intended to approximate,
as closely as possible, the scope of a search permitted by Chimel. Wrote Justice Stewart:
“[C]ourts have found no workable definition of ‘the area within the immediate control of the
arrestee’ when that area arguably includes the interior of an automobile and the arrestee is
its recent occupant. . . . Accordingly, we hold that when a policeman has made a lawful
43
Belton, supra note 1, 453 U.S. at 455-56.
44
Id. at 456.
45
Id.
46
Id. (quoting People v. Belton, 407 N.E.2d 420, 421 (N.Y. 1980)).
22
custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of
that arrest, search the passenger compartment of that automobile.” 47
B. Harris and Staten
Years later, in United States v. Harris,48 this court applied Belton to a situation in
which police officers stopped a car for running a red light. After discovering that the driver
did not possess a valid driver’s license, the officers arrested him for that offense, searched
and handcuffed him, and locked him in the police cruiser.49 The two passengers were then
ordered out of the car.50 As the front passenger began to step out of the car, one of the
officers saw a handgun at the passenger’s feet. The officers looked further and found a bag
containing ammunition on the floorboard between the passenger’s legs.51 After the front
passenger, Harris, had been indicted for weapons offenses, the motions judge granted his
motion to suppress, ruling that the officers “had no basis for searching the vehicle after [the
47
Id. at 460 (quoting Chimel, supra note 41, 395 U.S. at 763). The justice continued:
“It follows from this conclusion that the police may also examine the contents of any
containers found within the passenger compartment, for if the passenger compartment is
within reach of the arrestee, so also will containers in it be within his reach.” Id.
48
617 A.2d 189 (D.C. 1992).
49
Id. at 190.
50
Id.
51
Id.
23
driver’s] arrest for a traffic violation, nor did the officers reasonably fear for their safety.” 52
Furthermore, the search had come “well after the arrest of the driver and was therefore not
contemporaneous with ‘potentially threatening circumstances confronting the officer.’”53 We
reversed, relying on Belton and an earlier decision of this court, Staten v. United States,54
where we had affirmed a conviction for weapons offenses based on a search of an
automobile’s glove compartment after the driver (arrested for driving under the influence of
alcohol) and two passengers had been removed from the vehicle. None of the three was
sequestered in a patrol car before the search.
Harris focused primarily on the “contemporaneous incident” language in Belton 55
while Staten dealt mainly with the passenger’s contention that he had a reasonable
52
Id. at 192.
53
Id. (quoting motions judge).
54
562 A.2d 90 (D.C. 1989).
55
An earlier decision of this court, with a minimum of discussion, also affirmed a
conviction in part by reference to compliance with the “contemporaneous incident” language
in Belton. See Smith v. United States, 435 A.2d 1066, 1068 (D.C. 1981) (per curiam), cert.
denied, 455 U.S. 950 (1982). Other decisions of this court over the years have relied
minimally on Belton in sundry ways, none of which – except for those we discuss – would
add to the analysis here. For example, government counsel at oral argument referenced two
cases which we do not find helpful to the analysis. See Olafisoye v. United States, 857 A.2d
1078 (D.C. 2004) (ruling motion to suppress untimely and adding, in dictum, that court saw
nothing in record to suggest “a valid ground” for motion to suppress); Hicks v. United States,
730 A.2d 657 (D.C. 1999) (justifying seizure of shotgun from unlawful search of car on
inevitable discovery exception).
24
expectation of privacy in the glove compartment where the gun was found. Each, therefore,
was what we shall call a “pure” Belton case in that both concerned searches and seizures of
evidence before all occupants of the car had been removed and secured; as in Belton, the risk
to police safety and loss of evidence had not entirely abated at the time of the search.
C. The Movement to Gant
Cases in other jurisdictions began to address the question whether Belton’s bright-line
rule was being stretched too far, in derogation of Chimel, when passenger compartments
were searched after all the occupants of a car had been handcuffed and locked in a squad car
away from their vehicle.56 At the time of the search, could these sequestered occupants still
be deemed to occupy space, as Chimel required, under their “immediate control,” that is, “the
area from within which [the occupants] might gain possession of a weapon or destructible
evidence”?57 Courts began to say “No.” 58
That question, as we have seen, eventually came to the Supreme Court in Gant, where
a 5-to-4 majority also answered “No.” For the Court, Justice Stevens wrote:
56
See supra note 36.
57
Chimel, supra note 41, 395 U.S. at 763.
58
See supra note 36.
25
The safety and evidentiary justifications underlying Chimel’s
reaching-distance rule determine Belton's scope. Accordingly,
we hold that Belton does not authorize a vehicle search incident
to a recent occupant's arrest after the arrestee has been secured
and cannot access the interior of the vehicle.[59]
Because Debruhl had been arrested for a traffic violation, handcuffed, and held by police
officers away from his car while it was searched, the government does not contest that, under
Gant, the search violated the Fourth Amendment.
D. Thornton: From Bright-Line to Cloudy
Five years before Debruhl’s arrest, a Supreme Court majority in Thornton v. United
States 60 had signaled its unease with Belton. The supposed bright line rule was cracking; its
59
Gant, supra note 2, 129 S. Ct. at 1714. In restating the Court’s holding at the end
of the opinion, Justice Stevens added a second justification, italicized below, for searching
the vehicle drawn from Justice Scalia’s opinion concurring in the judgment in Thornton v.
United States, 541 U.S. 615, 625 (2004):
Police may search a vehicle incident to a recent occupant’s arrest only if the
arrestee is within reaching distance of the passenger compartment at the time
of the search or it is reasonable to believe the vehicle contains evidence of the
offense of arrest. When these justifications are absent, a search of an arrestee’s
vehicle will be unreasonable unless police obtain a warrant or show that
another exception to the warrant requirement applies.
Gant, supra note 2, 129 S. Ct. at 1723-24 (emphasis added).
60
Supra note 59.
26
application had become uncertain.
In Thornton, decided in 2004, police officers on patrol who were suspicious of a
passing car discovered, after a radio check, that the tags and the car did not match.61 Before
the officers could stop the car, the driver pulled into a parking lot and got out of the car.62
The officers approached and arrested the driver, patted him down, and found marijuana and
cocaine.63 The police handcuffed him, put him in the patrol car, then searched his car and
found a handgun.64 In affirming the denial of the motion to suppress, the Supreme Court
rejected the defense argument that a Belton search was limited to situations in which the
police initiated contact with a suspect while he was still in the car.65
On the facts, therefore, Thornton reflects an extension of Belton (although not on the
security issue addressed in Gant). In reaching its result, however, the Thornton Court
fractured, with one justice concurring dubitante,66 two justices concurring only in the
61
Supra note 59, 541 U.S. at 617-18.
62
Id.
63
Id.
64
Id. at 618.
65
Id. at 623-24.
66
See id. at 624-25 (O’Connor, J., concurring) (citing “Belton’s shaky foundation”
and expressing “dissatisfaction with the state of the law in this area” because “lower court
(continued...)
27
judgment on an alternative theory,67 and two justices dissenting.68 A Court majority,
therefore, concluded that Belton, as commonly interpreted, had come to undermine the
traditional limitation on searches incident to arrest – a limitation that Belton’s bright line rule
had supposedly been fashioned to protect. Without doubt, a Court majority telegraphed its
belief that Belton lay on a “shaky foundation,”69 had become a “swollen rule,”70 indeed a rule
stretched “beyond its breaking point.”71 In short, by 2004 five sitting justices had strongly
advocated either revision or abandonment of Belton, with some pointing out the very flaws
66
(...continued)
decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent
occupant as a police entitlement rather than as an exception justified by the twin rationales
of Chimel v. California”).
67
See id. at 625, 631 (Scalia, J., joined by Ginsburg, J., concurring in the judgment)
(offering alternative theory to justify search after noting that, because petitioner “was
handcuffed and secured in the back of the officer’s squad car” at the time police searched the
passenger compartment, the risk of his grabbing weapon or evidence from his car was
“remote in the extreme,” and thus the “Court’s effort to apply our current [Belton] doctrine
to this search stretches it beyond its breaking point. . . . [I]f we are going to continue to allow
Belton searches on stare decisis grounds, we should at least be honest about why we are
doing so. Belton cannot reasonably be explained as a mere application of Chimel”).
68
See id. at 633-34, 636 (Stevens, J., joined by Souter, J., dissenting) (opining that
“[n]either the rule in Chimel nor Belton’s modification of that rule would have allowed the
search of petitioner's car. . . . The bright-line rule crafted in Belton” to serve “the interest of
certainty” for searches of vehicle passenger compartments “is not needed for cases in which
the arrestee is first accosted when he is a pedestrian[;] . . . the Court extends Belton’s reach
without supplying any guidance for the future application of its swollen rule”).
69
See supra note 66.
70
See supra note 68.
71
See supra note 67.
28
stressed five years later in the Court’s corrective decision in Gant. Careful Court watchers
could not have failed to notice.
We hasten to add that we are not at all suggesting that these ruminations from a
majority of the justices amount to a formal rejection of Belton. Thornton’s interpretation of
Belton remained good law until the Court itself ruled in Gant.72 We cite the justices’ disquiet,
however, simply to demonstrate that bright-line rules do not easily remain radiant. Although
Belton was announced as a bright-line rule intended for simple, clear cut application, it is
evident from Belton’s history that such rules are often likely to remain truly “bright line” only
for a limited period of time as factual scenarios test their limits.73 Belton has become a
classic case of a rule beclouded over time by exceptions generated by unique facts that
pushed decisions beyond the “bright line” license – as evidenced by the three federal circuits
72
See Agostini v. Felton, 521 U.S. 203, 237 (1997) (“[I]f a precedent of this Court has
direct application in a case, yet appears to rest on reasons rejected in some other line of
decisions, the Court of Appeals should follow the case which directly controls, leaving to this
Court the prerogative of overruling its own decisions.”) (quoting Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)).
73
Courts have had to grapple with a potpourri of Belton issues, not only, as here,
whether the arrestee’s removal from the car cuts off the right to conduct a warrantless search,
but also, as in Thornton, supra note 59, how far from the car a suspect can be arrested while
the police retain authority to search the car, and, as in Harris, supra note 48, how long after
the arrest the officers still have Belton authority to search as a “contemporaneous incident”
of that arrest. See Gant, supra note 2, 129 S. Ct. at 1721 nn.6 & 7.
29
that anticipated Gant.74
Consequently, the likelihood of a police officer’s finding “settled law” attributable to
Belton has diminished over time as new factual scenarios outpace Belton-type decisions that
do not quite tell an officer what is, and is not, allowed in the new situation the officer faces.
Belton’s rule is not yet as amorphous a rule as those reflecting the “totality of the
circumstances” or excusing the warrant requirement for “exigent circumstances.” But it has
been heading in that opaque direction; it has been losing its currency. Accordingly, an
appellate court confronted by the government’s argument that the good-faith exception
applies in a particular case – Belton-type or otherwise – must be very careful in appraising
whether a police officer has relied on truly “settled law” in the jurisdiction – meaning settled
as to the material facts at issue.
Two federal circuits have recently applied that strict limitation when applying the
good-faith exception. United States v. Davis75 concerned a pre-Gant search of an automobile
after all the occupants had been secured with handcuffs and placed in a patrol car. The U.S.
Court of Appeals for the Eleventh Circuit, ruling after Gant came down, applied the
exception and allowed admission of the seized firearm. The court stressed, however, that
74
See supra note 36.
75
Supra note 34.
30
“the governing law in this circuit unambiguously allowed Sergeant Miller to search the
car.”76 Added the court: “Relying on a court of appeals’ well-settled and unequivocal
precedent is analogous to relying on a statute [citing Krull].”77 In United States v. McCane,78
a similar case concerning suspects secured in a patrol car, the Tenth Circuit emphasized that
the police officers, in seizing a firearm from the occupants’ car, had relied on “settled” case
law “factually indistinguishable from the instant case.” 79
To repeat: there is a crucial predicate that must be satisfied before the warrantless
search of an automobile under Belton law can be a candidate for the good-faith exception.
The tribunal’s interpretation of the Supreme Court’s rule on which the officer relies must be
“settled” as applied to all the material facts the officer faces. Short of satisfying that strict
requirement – i.e., a requirement of explicit protection or “cover” from the court on which
the officer relies -- we cannot say that the officer’s search would be objectively reasonable
76
Id., at *6 n.10.
77
Id.
78
573 F.3d 1037 (10th Cir. 2009), cert denied, 78 U.S.L.W. 3221 (U.S. Mar. 1, 2010)
(No. 09-402).
79
Id. at 1041, 1044 (citing United States v. Humphrey, 208 F.3d 1190 (10th Cir.
2000)). Similarly, the Supreme Court of Utah, in applying the good-faith exception to a
Belton search, recently cautioned: “If the case law had been ambiguous prior to the time the
officers conducted a search later definitively declared unconstitutional, the good-faith
exception would not apply and the evidence would be excluded.” Utah v. Baker, No.
20080351, 2010 WL 841271, at *11 (Utah Mar. 12, 2010).
31
enough for the good faith exception to apply. Otherwise that officer, conducting a search
later held unlawful by the Supreme Court, would be in no better position than that of the
officer in a typical mistake-of-law situation who arguably makes a reasonable, but ultimately
incorrect, guess at the lawfulness of the search.
It is important to emphasize that we are not defining “settled law” to mean case law
that has addressed facts identical to those confronting the officer who conducts the search.
We are referring, rather, only to the material facts – to the handful of variables, material to
ascertaining a lawful Belton search, that police officers permissibly take into account. These
include the degree to which the search is contemporaneous with the arrest,80 the proximity
of the occupant to the vehicle, both temporally and spatially, when the officer makes a lawful
arrest;81 the need to search the vehicle in relation to the offense that justified the stop,82 and,
the extent of sequestering the suspect and other occupants in relation to the search.83
80
See Belton, supra note 1, 453 U.S. at 460.
81
Compare Thornton, supra note 59, 541 U.S. at 622 (declining to address argument
that Belton rule applies only to “recent occupants” of vehicle, while noting that petitioner had
conceded “he was in ‘close proximity, both temporally and spatially,’ to his vehicle” when
approached by police officer) with Lewis v. United States, 632 A.2d 383, 388-89 (D.C. 1993)
(holding Belton did not extend to search of vehicle incident to arrest of individual “who has
parked, locked, and walked fifteen to twenty feet away from an automobile before being
stopped and arrested”).
82
See Gant, supra note 2, 129 S. Ct. at 1723-24 (quoted supra note 59).
83
See id. at 1714, 1723-24 (quoted supra note 59 and in accompanying text).
32
E. Unsettled Law
The government argues that the police officers who seized the incriminating evidence
from Debruhl’s car satisfied the good-faith test by taking “objectively reasonable” 84 action
in doing so. They adhered, says the government, to the traditional understanding of the
Supreme Court’s authoritative decision in Belton and this court’s application of that authority
in Harris85 and Staten86 – case law in effect at the time of Debruhl’s arrest a few months
before Gant was decided. Even according to Justice Stevens for the Gant majority, notes the
government, Belton “has been widely understood to allow a vehicle search incident to the
arrest of a recent occupant even if there is no possibility the arrestee could gain access to the
vehicle at the time of the search.”87 Therefore, says the government, exclusion of the
evidence from Debruhl’s trial would not deter police misconduct because the officers,
applying the correct law at the time – indeed, “engaging in a practice they never expected to
84
Leon, supra note 11, 468 U.S. at 926.
85
Supra note 48.
86
Supra note 54.
87
Gant, supra note 2, 129 S. Ct. at 1718.
33
be invalidated”88 – did nothing wrong.
Counsel for the government was asked at oral argument whether the universe of
appellate opinions that yields the “settled law” for this case is limited to the jurisprudence of
this court (as we have interpreted Belton), or embraces the larger universe that includes
relevant case law from other jurisdictions, as well as Supreme Court developments. Counsel
replied that this court is the proper source of settled law for good-faith purposes (although
he acknowledged that the relevant universe would not necessarily be limited to local case law
if it was “so obviously incorrect” that the police should favor sound law found elsewhere –
a remote possibility, he said, not presented here). We agree with the government: we need
not definitively resolve how broadly the universe of “settled law” might extend in unusual
circumstances; we are satisfied that Belton, as interpreted by this court as of the time of the
officers’ search, is the law on which this case should turn.89
We do not believe that our case law supports the government’s position in light of the
strict requirements for appraising “settled law” for good-faith exception purposes. If we
focus carefully on this court’s Belton decisions before Gant, it is possible to say – contrary
to the government’s contention – that this court might well have held the search of Debruhl’s
88
89
Johnson, supra note 17, 457 U.S. at 560.
Neither party has called our attention to a case from the D.C. Circuit that would be
relevant here.
34
car unlawful and the evidence inadmissible. We say this because Debruhl’s facts differ from
those in Staten and Harris in a legally significant way, indeed in the very way that became
determinative in Gant. In neither Staten nor Harris had all the occupants been removed from
the car and secured with handcuffs before the search; they were, as we have noted, “pure”
Belton cases, legally indistinguishable from Belton on the facts.90
In Debruhl’s case, like Gant’s, all occupants of the car had been removed and secured
before the search, a factual distinction from Belton which, as we have repeated, caused three
federal circuits before Gant to rule that Belton did not apply.91 Therefore, if Debruhl’s
counsel had litigated his motion to suppress before Gant was decided, counsel might well
have persuaded the Superior Court, and then this court, that on the facts here the law was
unsettled in this jurisdiction; that Staten and Harris were therefore not controlling; and that
in light of the case law from other jurisdictions reflecting Chimel’s limitation on Belton’s
90
In M.A.P. v. Ryan, 385 A.2d 310 (D.C. 1971), we adopted a rule that “no division
of this court will overrule a prior decision of this court.” Id. at 312. For example, in Harris,
supra note 48, 617 A.2d at 192, we concluded that most of the factual differences from
Staten, supra note 54, were immaterial, and that a Belton search “under these circumstances
[was] proper” because Staten, as “directly applicable authority” for applying Belton, could
not “be distinguished from the facts of this case.” In contrast, given the major factual
difference between Debruhl and Staten/Harris, we are satisfied that this prior case law
would not have bound a later division of the court, before Gant, to sustain the search of
Debruhl’s car.
91
See supra note 36.
35
reach, Belton should not be read to permit the search of Debruhl’s car.92 (In this hypothetical
case, of course, as explained in Part IV., the officers would have relied on a mistake of law,
and the good-faith exception would not have applied.)
We are not saying to a certainty that, before Gant, every division of this court would
unanimously have found an unlawful search based on the facts here. We are saying,
however, that the facts matter in determining what is “settled law,” and that the police
officer’s reliance on Staten and Harris – on “pure Belton” cases – to justify the search of
Debruhl’s car would have been reliance on relevant but not on “settled” law; the case was
one of first impression in this jurisdiction.
All things considered, therefore, it is not possible to conclude that Officers Egland
and Cepeda relied on “settled” law authorizing their search of Debruhl’s car. Even if, as
Justice Stevens acknowledged, Belton may have been “widely understood” 93 to allow
warrantless searches of vehicle passenger compartments without limitation incident to an
arrest, momentum against such a sweeping interpretation on facts such as those in Debruhl’s
case had been accelerating in the courts for years before his arrest. And no decision by this
92
This would not have been the first case in which we held that the government’s
Belton argument had stretched the facts beyond Belton’s proper reach. See Lewis, supra note
81, 632 A.2d at 388-89.
93
Gant, supra note 2, 129 S. Ct. at 1718.
36
court had held that a police officer had a right, under Belton, to search a car after all its
occupants had been removed and secured.
VI. J UDICIAL D ECISIONS AS P REDICATES FOR G OOD-F AITH E XCEPTION
We have been focusing on judicial decisions, more particularly on appellate opinions,
as a basis for the good-faith exception and premising that discussion on an officer’s reliance
on case law congruent in all material respects with the search the officer is anticipating. As
in Davis94 and McCane95 cited earlier, a number of federal and state courts have also
accepted case law as an appropriate predicate for good-faith reliance.96 They presume that
appellate opinions, dealing with earlier events, can have the same prospective reliability as
a warrant or unambiguous statute that invites “objectively reasonable” reliance on its clarity
and presumed validity for a look at an upcoming search.
94
Supra note 34.
95
Supra note 78.
96
See United States v. Jackson, 825 F.2d 853 (5th Cir. 1987); United States v. Owens,
2009 WL 2584570 (N.D. Fla. Aug. 20, 2009); United States v. Wesley, 2009 WL 2487970
(D. Kan. Aug. 14, 2009); United States v. Allison, 637 F. Supp. 2d 657 (S.D. Iowa 2009);
United States v. Grote, 629 F. Supp. 2d 1201 (E.D. Wash. 2009); United States v. Mays, 2009
WL 536912 (E.D. Wis. Mar. 3, 2009); Colorado v. Key, 2010 WL 961646 (Colo. App., Mar.
18, 2010); Meister v. Indiana, 912 N.E.2d 412 (Ind. Ct. App. 2009); Utah v. Baker, supra
note 79; Wisconsin v. Ward, 604 N.W.2d 517 (Wis. 2000).
37
Other courts, noting that an appellate opinion based on past events is not directed at
the specific facts of an anticipated search, and thus is not express authority for that
upcoming intrusion,
have declined to premise the good-faith exception on judicial
opinions.97 These courts are concerned that a trial judge or appellate panel may define
“settled law” too loosely and thereby invite police officers, rather than the courts, to
prescribe when exclusion is – and is not – appropriate. In other words, there is a concern
that unless the courts define “settled law” tightly enough to provide an unambiguous road
map to guide the warrantless search, the courts will be merging the discredited “mistake-of97
See United States v. Real Property located at 15324 County Highway E, 332 F.3d
1070,1076 (7th Cir. 2003) (“[s]uch expansion of the good-faith exception would have
undesirable, unintended consequences, principal among them being an implicit invitation
to officers in the field to engage in the tasks – better left to the judiciary and members of the
bar more generally – of legal research and analysis”); United States v. Peoples, 2009 WL
3586564 (W.D. Mich) (Oct. 29, 2009) (rejecting good faith exception for retroactive
application of Gant because reliance on police officer’s own interpretation of case law is
“materially different” from reliance on pre-search check by warrant or express statute);
Illinois v. Arnold, 914 N.E.2d 1143, 1158 (Ill. App. 2009) (settled Fourth Amendment law
of Illinois precluded search of vehicle “absent concerns about officer safety or the
preservation of evidence”); Smith v. Virginia, 683 S.E.2d 316, 327 (Va. Ct. App. 2009)
(Supreme Court “did not intend in Herring to extend the good faith exception” to admission
of evidence “based on the searching police officer’s honest but erroneous belief about what
the Fourth Amendment requires”); see also United States v. Gonzalez, 578 F.3d 1130 (9th
Cir. 2009) (rejecting good faith exception because it would conflict with Supreme Court’s
retroactivity precedents, Johnson and Griffith); United States v. Buford, 623 F. Supp. 2d 923,
926-927 (M.D. Tenn. 2009) (rejecting good-faith exception because of “perverse result”
that Gant and others “arrested pre-Gant” would not be entitled to suppression while anyone
arrested after Gant “would be entitled to suppression” and, further, because Gant “held
implicitly” that exclusionary rule applied retroactively despite police officers’ “reliance in
good faith on existing case law”); Washington v. Harris, 2010 WL 45755 (Wash. App. Div.
2 Jan. 7, 2010) (extending good-faith exclusionary rule “would conflict with the rule granting
retroactive application of new constitutional rules in criminal cases,” citing Griffith and
Gonzalez).
38
law” defense (see supra Part IV.) into the good-faith exception, with all the mischief that this
could entail. The danger would be too many police officers judging their own authority
expansively – and thus more and more often erroneously – with serious erosion of the
deterrence called for by the exclusionary rule. Put another way, a court’s failure to interpret
“settled law” strictly – including an unwillingness to call the law “unsettled” on the fact
pattern presented – would be an invitation to police misconduct through interpretation of
judicial opinions in ways that will narrow the rule of exclusion and force the courts to
announce empty Fourth Amendment violations.
In Krull, the Supreme Court recognized this very danger:
[T]he question whether the exclusionary rule is applicable in a
particular context depends significantly upon the actors who are
making the relevant decision that the rule is designed to
influence. The answer to this question might well be different
when police officers act outside the scope of a statute, albeit in
good faith. In that context, the relevant actors are not
legislators or magistrates, but police officers who concededly
are “engaged in the often competitive enterprise of ferreting out
crime.” (Emphasis added.) [98]
Moreover, in Leon and its Supreme Court progeny, there was a third-party check or
checkpoint – a judicial magistrate, a warrant clerk, a record officer, or the plain language of
98
Krull, supra note 25, 480 U.S. at 360 n.17 (quoting Johnson v. United States, 333
U.S. 10, 14 (1948)).
39
a statute – before the officer was entitled to conduct the search. When an officer is allowed
instead to rely on police academy interpretation of judicial opinions to justify a search
without additional, clear guidance, the potential for slippage into unconstitutional terrain is
obvious.99
If we say that case law, like a warrant, can serve as a basis for the good-faith
exception, there is language in Herring that – unless this court defines “settled law” narrowly
and precisely – would appear to allow the police officer, not the court, to define the “settled
law” that permits the search. Assume, contrary to our decision here, that we were not to
define our “settled” Belton law by reference to a published opinion reflecting the material
facts applicable to the officer’s intended search – in short, a roadmap akin to the clarity of
a warrant. Absent that limited definition, Herring would permit suppression of the evidence
seized “only if it can be said that the law enforcement officer had knowledge, or may
properly be charged with knowledge, that the search was unconstitutional under the Fourth
Amendment,” namely, that “a reasonably well trained officer would have known that the
99
Cf. Johnson, supra note 17, 457 U.S. at 561 (“If, as the [g]overnment argues, all
rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in
close cases, law enforcement officials would have little incentive to err on the side of
constitutional behavior.” The police, rather, would feel encouraged “‘to disregard the plain
purport of our decisions and to adopt a let’s-wait-until-it’s-decided approach.’” (quoting
Desist v. United States, 394 U.S. 244, 269, 277 (1969) (Fortas, J., dissenting))).
40
search was illegal in light of "all of the circumstances.” (Emphasis added.)100 With this legal
protection that the officer could search unless he knew the search “was unconstitutional,”
an officer could rely on a plausible, though not established, interpretation of Belton that
would justify the search of Debruhl’s car without regard to whether Debruhl had been
removed and secured before the search. Mere “plausible” law would become “settled” law,
without regard to how this court might have evaluated the search in the first instance.
VII. C ONCLUSION
We share the concerns about equating decisional law with warrants, statutes, and other
independent checks on police searches that would excuse application of the exclusionary
rule.101 Until experience proves otherwise, however, we are not willing to assume now that
trial judges and appellate panels in this jurisdiction will fail to strictly construe the “settled
law” requirement underlying the good-faith exception. We are willing to allow for the
100
101
Herring, supra note 27, 129 S. Ct. at 701, 703.
In United States v. Edelen, 529 A.2d 774 (D.C. 1987), a case before Herring that
applied Leon and Krull, this court stressed an essential predicate for finding the objectively
reasonable reliance by a police officer that justifies the good-faith exception. That predicate
was the “intervention by a neutral, third party” – for example, a “judge or magistrate”
(issuing a warrant) or a “legislature” (enacting an unambiguous statute) or (we shall add) a
warrant clerk – that affirmatively grants approval of, or otherwise expressly justifies, the
particular search before it takes place. Id. at 784, 785. We called such intervention “a key
requirement triggering the application of the rule of nonexclusion.”Id. at 784.
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possibility that a police officer’s reliance on judicial precedent tending to support a particular
search and seizure can be the legal equivalent of good-faith, objectively reasonable reliance
on a defective or recalled warrant (Leon, Evans), or a state statute (Krull), or an erroneous
police record (Herring). We are not willing to stop the discussion by ruling that judicial
precedent, as a category, will always be too imprecise for a police officer to rely on it with
reasonably objective certainty. We anticipate that our strict rule of construction will be
followed. And we would be violating that rule, to be sure, if we were to permit the good-faith
exception to apply in Debruhl’s case.
Affirmed.
