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Court considers exclusionary rule

By Kimberly Atkins
Lawyers USA

The justices of the U.S. Supreme Court tussled Monday with the limits of the exclusionary rule when the police conduct a search in a way that is lawful at the time, but later deemed unconstitutional by the Court.

Willie Gene Davis, the petitioner in Davis v. U.S., was a passenger during a traffic stop. After the driver was arrested for drunken driving, police asked Davis to identify himself and he gave a false name.

Suspecting Davis was lying, the officer asked another passenger to identify him, and that passenger gave Davis’ real name. Davis was arrested for providing a false identity to police, and the search incident to arrest uncovered a firearm in Davis’ jacket, which was in the car.

At trial on charges of possession of a firearm as a felon, Davis moved to suppress the gun found in his jacket. He acknowledged that the search was permissible under then-existing precedent, but he cited the Court’s subsequent ruling in Arizona v. Gant that police cannot search a vehicle incident to an occupant’s arrest after the arrestee has been secured and can’t reach the vehicle.

The district court denied the motion, holding that the search was valid under existing precedent at the time, and that the gun would inevitably have been discovered. Davis was convicted.

The 11th Circuit affirmed the conviction. While it found that Gant applied retroactively to Davis’ arrest and that his Fourth Amendment rights had been violated, it held that suppression of the evidence under the exclusionary rule was only justified where it would deter police from conducting illegal searches. Since the search was permissible at the time, there was no deterrence interest and therefore the good faith exception to the exclusionary rule applied.

The Supreme Court granted certiorari.

During oral arguments, Orin S. Kerr, a criminal law professor at George Washington University Law School, argued on Davis’ behalf that “this Court should reverse and hold that the good faith exception does not apply to reliance on precedent.”

But Justice Anthony Kennedy asked whether that was possible.

“The good faith rule is itself a rule that’s intact,” Kennedy said. “That’s a precedent that was on the books, and the good faith rule qualifies the exclusionary rule. So why aren’t we just following the good faith rule here? There’s nothing retroactive about it — it’s applying existing law.”

“It’s not applying existing law, because the effect of what is labeled the good faith exception in this setting is actually to apply the prior decision,” Kerr said.

Chief Justice John G. Roberts honed in on the issue of deterrence.

“You agree the police did nothing wrong in this case, don’t you?” Roberts asked. “So why do we want to deter them from doing what’s right?”

“Because (courts) can’t turn away from the role of this Court’s precedents,” Kerr said.

Justice Ruth Bader Ginsburg asked whether the evidence would get in anyway, even if there were no exclusionary rule exception.

“There’s another question in this case (and) that is (whether) this evidence would come in (as part of a) legitimate inventory search,” Ginsburg said.

“That issue has not been briefed in this case,” Kerr said. “It would remain for the 11th Circuit to apply that in the event the Court reverses.”

Deputy Solicitor General Michael R. Dreeben stressed the deterrence requirement of the exclusionary rule.

“The Court has repeatedly rejected efforts to expand the exclusionary rule to serve other purposes,” Dreeben said.

But Justice Sonia Sotomayor expressed concern about a rule that would hold, as the government suggests, that where the law regarding a search is settled in some circuits, the exclusionary rule would not apply, but in circuits with unsettled law, it would apply.

“We’re going to have the exclusionary rule apply sometimes but not other times,” Sotomayor said.

“That’s true, but that’s a direct consequence of the logic of the good faith exception itself,” Dreeben explained.

Justice Stephen Breyer wondered if the Court should err on the side of simplicity when crafting a rule.

“Is there anything to be said for simplicity? The normal rule is when the police violate the Fourth Amendment you exclude the evidence,” Breyer said. Once exceptions, and then exceptions to the exceptions, are introduced, “it’s so complicated, only 14 people are going to understand it and they’re not going to understand it, either,” he said.

“I think nine of the people who will understand it are on this Court,” Dreeben said.

“That’s very optimistic,” Breyer said, drawing laughter.

“I’m an optimist,” Dreeben responded.

“I don’t think it’s so complicated, counsel. Don’t worry about it,” said Justice Antonin Scalia.

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