When the constable behaves and the courts blunder: expanding the good-faith exception in the wake of Arizona v. Gant.

• Author: Garagiola, Meredith N.

Beginning with the efforts of the Warren Court, the Supreme Court has sought to regulate criminal procedure through two separate judicial doctrines: retroactivity and the exclusionary rule. Both are attempts to solve a basic dilemma of criminal procedure: how to ensure fairness and protect constitutional liberties without disrupting stability in the law and society's interest in effective law enforcement. (1) These rules intersect in the context of the Fourth Amendment, where the Court must weigh competing concerns for individual privacy and accuracy in the fact-finding process at trial. For as long as retroactivity and the exclusionary rule have been applied separately, each in its own appropriate sphere, the Court has generally balanced these countervailing interests successfully. The Court has refined the scope of Fourth Amendment protections by modifying the rules of criminal procedure. But it has not created chaos in the judicial system by simultaneously applying the harsh remedy of the exclusionary rule to evidence when doing so would be overly disruptive, particularly when the evidence was obtained according to the best understanding of the law of the time. However, this pax justicia has recently been threatened by the Court's decision in Arizona v. Gant, (2) application of which has revealed the underlying tension between the two doctrines that the Court must now finally confront.

In Gant, the Court narrowed the bright-line rule previously established in New York v. Belton, (3) which had extended the search-incident-to-arrest doctrine to automobile searches and authorized officers to conduct a warrantless search of the passenger compartment of an automobile following an arrest, even after the arrestee had been handcuffed and secured in a patrol car. (4) Gant invalidated this latter type of search by prohibiting warrantless automobile searches incident to arrest whenever the recently arrested occupant posed no threat to officer safety or to the preservation of evidence. (5) Because the Gant limitation is a new rule of criminal procedure, it applies retroactively to all cases pending on direct review, rendering many previously lawful searches illegal, and raising new questions about the admissibility of evidence obtained therein. (6) The resulting issue is whether the exclusionary rule ought to be applied in appeals of pre-Gant convictions where evidence was obtained pursuant to automobile searches now unlawful under Gant, but legally permissible at the time they were conducted. Several lower courts that have considered the issue have ruled that the retroactivity doctrine as defined in Griffith v. Kentucky (7) requires the exclusionary rule to be retroactively applied alongside the new Gant rule in all cases pending on direct appeal. (8) However, such an application not only directly contradicts the Court's historical separation of the two doctrines, but also departs from the deterrence-driven purpose the Court has relied upon to justify their application. But because the Court's ruling in Gant is silent on the issue of retroactive application of the exclusionary rule to pre-Gant searches, the lower courts have struggled to reconcile the incompatible doctrines, resulting in a circuit split and additional contradictory results at the district-court level. (9)

This note argues that the Court should resolve this tension among the lower courts by holding that the exclusionary rule should not be applied in cases of retroactive application of new Fourth Amendment procedural rules that invalidate established judicial precedent. When officers act in accordance with the courts' best understanding of the law, the primary purpose of the exclusionary rule--deterrence of unlawful police conduct--is not served. During the past several decades of exclusionary-rule jurisprudence, the Court has consistently refused to apply the rule in cases where the deterrence requirement is not met, and has created a specialized exception to the exclusionary rule that encompasses reasonable police action undertaken in good faith. (10) Because law enforcement reliance on established judicial precedent falls squarely within this category of reasonable police action, the good-faith exception should be applied and should forestall application of the exclusionary rule to pre-Gant searches.

Withholding application of the exclusionary rule when the underlying Fourth Amendment violation was based on established judicial precedent is also consistent with the present-day retroactivity doctrine articulated in Griffith. Griffith is satisfied by extending the Gant rule to applicable searches in cases on direct appeal. Whether a court finds the purposes of the exclusionary rule to be met, and then subsequently elects to exclude the resulting evidence, is beyond the scope of the retroactivity doctrine. The exclusionary rule is a distinct doctrine, one that is entirely separate from the new procedural rule that is retroactively applied. Its application is triggered not by retroactivity, but by the possibility of appreciable deterrence of police misconduct. (11) In cases like pre-Gant searches where the offending officers' actions predated the new rule and were grounded in reasonable reliance on established judicial precedent, the opportunity to foster this deterrence will never occur, and the exclusionary rule therefore should not be applied.

Part I of this Note summarizes the Supreme Court's development of criminal-law retroactivity, and the exclusionary rule, and examines the separate goals each doctrine seeks to advance. Part II will consider the doctrines in combination, and will argue that the same concerns motivating their historical separation require their continued separation today. This section will also argue that law-enforcement reliance on established judicial precedent fits within the good-faith exception to the exclusionary rule, and that such an application is consistent with the modern retroactivity doctrine. Part HI will analyze the Supreme Court's previously articulated justification for withholding the exclusionary rule in the context of officer reliance on judicial precedent, and will also examine the conflicting lower courts' rulings on exclusionary-rule retroactivity in the context of pre-Gant searches. This section will conclude by arguing that the Supreme Court should resolve the lower-court split by ruling that the exclusionary rule should not be applied in cases of retroactive application of new law where law-enforcement officers objectively relied on established judicial precedent.

1. A BRIEF HISTORY OF RETROACTIVITY AND THE EXCLUSIONARY RULE

   1. Retroactivity from Linkletter to Griffith

      As review of the development of the retroactivity doctrine and the exclusionary rule will demonstrate, the two were created to serve separate and largely incompatible doctrinal ends, a conflict the Court recognized when it first separated them forty-five years ago in Linkletter v. Walker. (12) Retroactivity is a remedial doctrine whose aim is to protect the substantive rights of the defendant. (13) In contrast, the exclusionary rule is a prophylactic device designed to prevent future rights abuses by influencing the behavior of law-enforcement officers. (14) Combining the two doctrines in the context of pre-Gant searches and other retroactive applications of new Fourth-Amendment-based rules severely undermines the credibility of each, and leads to precisely the type of disruption to the stability of settled law that Linkletter was intended to prevent.

      The Court has used the retroactivity doctrine to strike a balance between enhancing protection of individual rights and protecting society's reliance on the stability of the criminal justice system. While modern retroactivity requires that new rules of criminal procedure be retroactively applied only to cases pending on direct review, (15) prior to 1965 the Court afforded nearly all new constitutional rules automatic retroactive effect. (16) This traditional rule was in keeping with the Blackstonian view that the judge's duty is not to "pronounce a new law, but to maintain and expound the old one." (17) The Warren Court abandoned this restrained view of the judiciary's role and rejected retroactivity as a constitutional imperative in the landmark decision of Linkletter v. Walker.

      In Linkletter, the Court considered whether its decision in Mapp v. Ohio (18) extending the exclusionary rule to the states should be applied retroactively. (19) The Court rejected full retroactivity, making Mapp retroactive only to cases that had not yet become final at the time Mapp was decided. (20) Significantly, the Court chose to characterize retroactivity as an extra-constitutional remedy, stating that "the Constitution neither prohibits nor requires retrospective effect [of a new constitutional rule]." (21) This distinction is noteworthy because it followed four years after the Court's determination in Mapp that the exclusionary rule was constitutionally based, and that its application was therefore mandatory. (22) The significance of declaring the inverse to be true of retroactivity was that the combined effect of these rulings meant that the exclusionary rule would not be automatically applied when the Court announced a new rule of criminal procedure. This Note argues that this separation was intentional because it enabled the Court to carve out new constitutional rules without the burden of the exclusionary rule, the mandatory application of which would have had significant destabilizing effects on the criminal justice system. (23)

      In Linkletter, the Court ushered in a new system for making alterations in the law, one that afforded the Court vital flexibility in containing the disruptive attendant effects of legal change. The Court also crafted the test for deciding when to apply retroactivity in such a manner as to guarantee that the exclusionary role would not be retroactively applied. The...