Davis v. United States: why the Supreme Court should preserve judicial integrity and prevent further erosion of the exclusionary rule.

• Author: Campbell, Christopher A.

1. INTRODUCTION

   "In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously." (1) For example, "a court's failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." (2) Specifically, the failure violates the principle of similar treatment of similarly situated defendants when not all defendants are benefited by a newly announced rule. (3) The similar treatment principle is relevant in Fourth Amendment jurisprudence. When a court determines that a Fourth Amendment violation has occurred, the remedy may be exclusion of some or all of the evidence obtained. (4) Just such a violation is alleged to have occurred when what began as a simple traffic stop made its way to the United States Supreme Court.

   In 2010, the Eleventh Circuit heard United States v. Davis (5) and declined to exclude evidence obtained by law enforcement officers who conducted a search in reliance upon the United States Supreme Court's 1981 holding in New York v. Belton. (6) The Eleventh Circuit held that, while the search violated the defendant's Fourth Amendment rights, the violation was not deliberate. The court did not apply the exclusionary rule because the police conducted a search in "objectively reasonable" (good faith) reliance on the well-settled precedent of Belton. (7) However, in 2009 Belton was substantially overruled in Arizona v. Gant. (8) The result in Davis is incorrect for two reasons. First, if the Eleventh Circuit's application of the good faith exception to the exclusionary rule is upheld, the sacred protection of privacy interests afforded by the Fourth Amendment (and validated by the exclusionary rule) will be substantially eroded. Second, the Eleventh Circuit failed to properly consider the principles that sustain the retroactive doctrine, namely similar treatment for similarly situated defendants like Gant and Belton.

   The first section of this note discusses the ramifications of Gant and the split it has created among the circuit courts in applying its holding to cases pending on direct appeal. The second section traces the history and purpose of the exclusionary rule, how the rule is applied to Fourth Amendment violations, and the erosion of the exclusionary rule under cases promoting the "good faith exception." The third section explains that the retroactive doctrine should be applied to cases pending on appeal when legal precedent is declared unconstitutional during its pendency. The fourth section of this note explains why, as a matter of policy, exclusion must be applied to evidence seized from a search which was authorized by precedent, but subsequently declared unconstitutional while the case is on direct review. The final section is an attempt to predict the outcome of United States v. Davis in the United States Supreme Court.

2. THE RAMIFICATIONS OF ARIZONA V. GANT ON UNITED STATES v. DAVIS AND SIMILAR CASES

   1. Facts and Analysis of Davis

      In Davis, the defendant, Willie Gene Davis, a convicted felon, was charged with unlawful possession of a firearm (9) in violation of 18 U.S.C. [section] 922(g)(1). (10) The charge resulted from a routine traffic stop where Davis was a passenger in the vehicle. (11) After the arresting officer handcuffed and placed Davis and the driver of the vehicle into separate patrol cars, the officer searched the vehicle and found a revolver in Davis's jacket pocket. (12) In response to his indictment, Davis filed a motion to suppress the gun, thus preserving the issue for appeal. (13) The district court denied Davis's motion. (14) On appeal, the Eleventh Circuit rejected exclusion and noted that the Supreme Court did not declare exclusion as the remedy for the violation in Gant. (15)

      The Eleventh Circuit reasoned that the evidence should not be excluded because the police conducted the search in objectively reasonable (good faith) reliance on binding precedent, and exclusion would not be a remedy even if that precedent is subsequently overturned. (16) However, the result in Davis was incorrect because the Eleventh Circuit improperly relied on the good faith exception to the exclusionary rule. Additionally, the court did not consider whether Gant necessitates exclusion in Davis pursuant to the Supreme Court's retroactive doctrine.

   2. Gant Analysis

      The Fourth Amendment guarantees that

      [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (17) In Gant, the Supreme Court borrowed its reasoning from Chimel v. California to rule that "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." (18) The Court held that absent these justifications, searching an arrestee's vehicle is unreasonable without a warrant or another applicable warrant exception. (19)

      Chimel v. California established the fundamental principles regarding the scope of searches incident to lawful custodial arrests. (20) Chimel requires that "a search incident to arrest be justified by either the interest of officer safety or by the interest of preserving evidence." (21) Accordingly, exceptions apply for situations where an arrestee could gain access to the vehicle, or where police reasonably believe the vehicle contains evidence of the offense of arrest. (22)

      The Court refined the rule regarding searches incident to a lawful arrest in New York v. Belton. (23) Like Davis, Belton was a passenger in a vehicle that police stopped for a traffic violation. (24) During the stop, the officer discovered that the occupants possessed marijuana and, thus, ordered the occupants out of the vehicle. (25) The officer then placed all of the occupants under arrest, patted each of them down, and placed each of them in separate areas of the road so they could not physically touch one another. (26) After seizing the marijuana from the floor of the car, the officer searched the passenger compartment of the car where he found Belton's jacket, which contained cocaine in its pocket. (27) The trial court convicted Belton for possession of a controlled substance; on appeal, the New York Court of Appeals suppressed the evidence from the search of the jacket, finding that the search was not a search incident to a lawful arrest because there was no risk of losing the evidence. (28) Conversely, the United States Supreme Court held that the search was lawful because the jacket was located inside the passenger compartment of the car and was in "the arrestee's immediate control" within the meaning of Chimel. (29)

      In 2009, however, the Supreme Court changed the prevailing understanding of the rule in Belton in Arizona v. Gant. (30) There, police arrested Gant for driving on a suspended license, handcuffed him, and locked him in a patrol car before officers searched his car and found cocaine in a jacket pocket. (31) The Court reasoned that this method of searching would "untether the rule from the justification (32) underlying the Chimel exception." (33) The Gant Court rejected the broad interpretation of Belton and held that the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of search. (34) The Court reasoned that the holding in Belton undervalued the privacy interests of private individuals and motorists. (35) The Court found that the broad reading of Belton caused countless individuals, guilty of nothing more serious than a traffic violation, to have their constitutional right to the security of their private effects violated. (36) Thus, the Court affirmed the Arizona Supreme Court's holding that the broad reading of New York v. Belton was improper. (37) Thus, Belton was substantially overruled. (38)

      Gant and Davis are virtually interchangeable. In both cases, the search violated the defendant's Fourth Amendment rights. (39) In both cases, police conducted searches while the defendants were handcuffed and locked in patrol cars. (40) In both cases, the defendants were not in positions to reach the evidence. (41) In both cases, the defendants were arrested for crimes for which the police would not expect to find evidence of the crime of arrest in the passenger compartment. (42) Accordingly, one would imagine that if the Supreme Court had heard Davis instead of Gant, the Court would have reached the same rule announced in Gant." However, the Eleventh Circuit Court declined to follow the new precedent announced in Gant because it determined that the exclusionary rule did not apply when the police conducted a search in objectively reasonable reliance on well-settled precedent, even if that precedent was overturned. (43)

   3. Circuits Split in Application of the Exclusionary Rule to Post-Gant Cases on Direct Review

      The circuits are currently split on whether to apply the exclusionary rule to cases that were on direct review when Gant was decided. (44) (State courts are similarly confused.) (45) By the time Davis was decided by the Eleventh Circuit, the Ninth Circuit had held that exclusion was the proper remedy for an unconstitutional search, (46) while the Tenth Circuit declared the exclusionary rule did not apply to the evidence obtained from a search on the basis of law enforcement's reasonable reliance on well-settled precedent. (47) Most recently the Sixth Circuit has sided with the Tenth and Eleventh Circuits. (48)

      1. Ninth Circuit

         In United States v. Gonzalez, the Ninth Circuit...