The Wisconsin Supreme Court recently held that, where a warrantless search was executed pursuant to clear and settled precedent that is later overruled, the exclusionary rule does not require suppression of the evidence.
Absent from the opinion, or the dissent, is any discussion of a recent U.S. Supreme Court opinion which suggests that the court might be ready to re-examine its precedents regarding retroactive application of new holdings, Danforth v. Minnesota, 552 U.S. 264 (2008).
The holding in Danforth was merely that state courts may give retroactive effect to new rules of criminal procedure announced by the U.S. Supreme Court, even if federal law does not require it. It is not directly on point when the issue is the remedy for an unconstitutional search.
Nevertheless, the opinion contains language asserting that the court does not announce new rules, but merely recognizes what the law has always been. The statements undermine the rationale for denying any new holding in criminal law retroactive effect.
In both cases, officers arrested and secured the defendant in a squad car, and then conducted a search of the defendant’s vehicle incident to the arrest. At the time of the searches, both were legal under Wisconsin precedent, State v. Fry, 131 Wis.2d 153, 388 N.W.2d 565 (1986).
After the searches, however, the U.S. Supreme Court held in Arizona v. Gant, 129 S.Ct. 1710 (2009), that, once a suspect is secured in the back of a squad car, such searches violate the Fourth Amendment.
The Wisconsin Supreme Court, while acknowledging that, under Gant, the searches violated the constitution, held that the good faith exception should preclude application of the exclusionary rule.
In doing so, it balanced two competing principles: (1) newly declared constitutional rules must apply to all similar cases pending on direct review, Griffith v. Kentucky, 479 U.S. 314, 322-23 (1987); and (2) the exclusionary rule is not applied when officers conducted an illegal search based on an objectively reasonable belief that the search did not violate the Fourth Amendment, U.S. v. Leon, 468 U.S. 897 (1984).
The majority found that the latter principle trumped the former, concluding, “Application of the exclusionary rule would have absolutely no deterrent effect on officer misconduct, while at the same time coming with the cost of allowing evidence of wrongdoing to be excluded.” The court emphasized though that its holding only applies “when the officer reasonably relies on clear and settled precedent.”
The dissent criticized the majority for looking only to the deterrent value of the exclusionary rule, while ignoring that the rule also protects the integrity of the judicial process. The dissent also discusses at length how the good faith exception thwarts the development of Fourth Amendment jurisprudence.
As noted above, neither the majority nor the dissent discusses Danforth, and understandably so. When courts speak of “retroactivity” in criminal cases, there are actually two distinct doctrines at play.
The type of “retroactivity” at issue in Griffith v. Kentucky concerns cases still pending when the U.S. Supreme Court announces a new rule. The more frequent usage of “retroactivity” refers to whether a new rule of criminal procedure applies to cases that are already final. Teague v. Lane, 489 U.S. 288 (1989).
Danforth concerned the latter; Dearborn and Littlejohn the former.
In Danforth, the court considered the effect of its earlier decision in Crawford v. Washington, 541 U.S. 36 (2004), in which the court made it significantly easier for criminal defendants to exclude out-of-court statements pursuant to the Confrontation Clause.
Later, in Whorton v. Bockting, 549 U.S. 406 (2007), the court held that state courts were not required to retroactively apply the holding in Crawford to cases that were already final when Crawford was decided.
In Danforth, the issue was whether states could do so, despite the holding in Whorton that they are not required to. The court held that they could.
In doing so, the court used language that undermines ever denying retroactive effect to new constitutional rules, by implying they are not “new rules,” at all.
The court wrote, “‘Retroactivity’ suggests that when we declare that a new constitutional rule of criminal procedure is ‘nonretroactive,’ we are implying that the right at issue was not in existence prior to the date the ‘new rule’ was announced. But this is incorrect. … [T]he source of a ‘new rule’ is the Constitutional itself, not any judicial power to create new rules of law. Accordingly, the underlying right necessarily pre-exists our articulation of the new rule.”
The court also engaged in a lengthy history of retroactive application of “new rules.” It noted that, from 1915 to 1965, all “new rules” were routinely applied to cases that had been final. The court also states that, since the court stopped routinely doing so in 1965, the law has been “confusing.”
Ultimately, if the Supreme Court really believes its own rhetoric — that it does not make “new rules” ever, but only recognizes pre-existing rights — then, logically, no rule of criminal constitutional law should ever be denied retroactive effect, whether to cases that have become final, or to cases such as Dearborn and Littlejohn, in which officers reasonably relied on what was incorrectly deemed clear and settled law.
Denying retroactive effect to “new rules” may have been a practical necessity during the Warren Court, when it was unabashedly adopting new safeguards for defendants in state courts.
But, if the court is really out of that business, and is only recognizing rights that have existed since the Bill of Rights was adopted, the rationale for nonretroactivity fails.
David Ziemer can be reached at email@example.com.