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State v. David A. Dearborn, 2010 WI 84

Wisconsin supreme court decision, affirming 2008 WI App 131; for Dearborn: Eileen A. Hirsch,SPD, Madison Appellate; BiC; Resp.; Reply

Search-Incident – Good-Faith Reliance on Judicial Precedent

¶2   Dearborn maintains, and the State concedes, that in the wake of the United States Supreme Court’s ruling in Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710 (2009), the search of Dearborn’s truck violated his constitutional right to be secure against unreasonable searches and seizures. The main question in this case is whether the exclusionary rule should be applied to remedy the constitutional violation, or alternatively, whether the good faith exception should preclude application of the exclusionary rule and the evidence’s consequent suppression.[3]

¶3   Prior to the United States Supreme Court’s decision in Gant, this court made clear in State v. Fry, 131 Wis. 2d 153, 388 N.W.2d 565 (1986), and its progeny that the type of search conducted of Dearborn’s truck following his arrest was lawful. However, we now accept Gant‘s interpretation of the United States Constitution and adopt its holding as the proper interpretation of the Wisconsin Constitution’s protection against unreasonable searches and seizures. Thus, the search of Dearborn’s truck violated his constitutional rights.

¶4   However, we decline to apply the remedy of exclusion for the constitutional violation. We hold that the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court. Accordingly, we affirm the court of appeals and uphold Dearborn’s conviction.

The court now accepts the United States Supreme Court’s “interpretation” of the fourth amendment? Well. Gant is not without ambiguity (irrelevant nonetheless to this appeal), but at a minimum it means (quoting now from Gant), “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. … (T)he 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 the search.” When Dearborn’s truck was searched incident to his arrest, it was locked and he was outside of it. So the court is certainly correct that the search can’t be sustained in light of Gant. And the court is equally correct that the search was sustainable under Frye, as the court of appeals held. Gant overruled Frye. In the court’s view, therefore, two competing principles compete for attention, ¶¶31-33: the retroactivity rule, which says that “newly declared constitutional rules” apply to cases on direct appeal even if decided after the declaration; and the good-faith rule, which of course says that evidence isn’t suppressible when seized in good-faith reliance on … on what, exactly? That is the rub, as will presently be seen. As you saw in the blockquote above, the court decides that the good-faith rule rules.

The court notes that lower courts have split on this question, ¶34. Indeed so. And, as if to underscore the point, the Missouri court of appeals released a decision two days earlier than (and not cited by) Dearborn in which it rejects good-faith reliance on pre-Gant caselaw, State v. Johnson, 2010 Mo. App. LEXIS 964 (July 13, 2010):

The effect of using objectively reasonable reliance on case law as a basis for applying the good-faith exception would be to ignore the Supreme Court’s retroactivity rules, set forth above, in the context of Fourth Amendment cases. While truly “new” rules interpreting the Fourth Amendment might technically be applied retroactively, they could have no retroactive effect because a new constitutional rule interpreting the Fourth Amendment would in every case result in a good-faith exception to the exclusionary rule. We would recognize that the individual’s rights were violated, but we would afford him no remedy. … Thus, the State, in asking us to apply the good-faith exception to reliance on case law, is effectively asking us to reinvigorate the clear break rationale, albeit under a new name, “good faith,” for new constitutional rules affecting the Fourth Amendment.

But our court has now chosen the competing route, the one that affords no remedy. Any chance for cert review? On the one hand, the pool of Gant-type cases will shrivel with age; attrition will solve that particular problem. But there is a larger, recurrent principle at play — whether the good-faith rule applies to reliance on caselaw. Leading fourth amendment expert Orin Kerr argues at some length, in a series of blog posts and the McCane cert petition, that it does not. The petition was denied, but the split has only deepened since. More may yet be heard. But in the meantime, if nothing else, Gant is accepted law in Wisconsin.

John Hall’s take: “How the court could reasonably conclude that the search incident doctrine applies to a locked car when the defendant is locked in a police car escapes me before before Gant, and that kind of holding was what led to Gant. That isn’t good faith.”

More: Orin Kerr reports, “Good-Faith Exception for Changing Law Likely Headed to the Supreme Court.” The reference is to the government’s cert petition in U.S. v. Gonzalez, 578 F.3d 1130 (9th Cir 2009).

Update: Cert grant, Davis v. U.S., indicates that the holding by the Wisconsin supreme court in Dearborn isn’t the final word.

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