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Blog Scan

Can Herring Save Gant?:  At North Carolina Criminal Blog, Jeff Welty a Professor at UNC's School of Government, asks whether the Herring "good faith" exception to the exclusionary rule can be applied to "save" pre-Gant vehicle searches incident to arrest that were conducted in good faith reliance on settled law.  On June 11th, a federal district court in Tennessee addressed this very issue in United States v. Buford.  In Buford, an officer stopped the defendant after running his tag and learning he was the subject of an outstanding arrest warrant.  A post-arrest search of the vehicle revealed a handgun.  After Gant came down, the defendant moved to suppress, and the government urged the court to admit the gun because the officer was acting in good faith reliance of the law at the time of the search.  Since Gant is retroactive, the district court struggled with the government's argument and ultimately decided not to apply Herring's "good faith" exception to the exclusionary rule. 

Praise for Judge Sotomayor's Criminal Record:  Amy Harder writes on The Ninth Justice that the "left-leaning" Alliance for Justice has released a report that examines several of Judge Sotomayor's criminal law opinions.  William Yeomans the organization's legal director, and Brina Milikowsky, a legal researcher at the Alliance, found that Judge Sotomayor took a "strong stance" on criminal issues.  Yeomans pointed out that we still do not know much about her stance on the death penalty (although we do have that 1981 Memo that Kent blogged about here), but emphasized that Judge Sotomayor's record demonstrated adherence to precedent and a "careful judicial style."  The Alliance's "Access to Justice" report on Sotomayor is also available on its website, and be sure to check out Kent's posts on Judge Sotomayor's AEDPA record, her Death Penalty record, and today's USCA2 action in the Fell case.

Criminal Defendants Feel the Effect of Judicial Elections:  At Sentencing Law and Policy is Doug Berman links to a National Journal commentary by Amanda Frost that argues criminal defendants are the real losers when judges are elected.  Frost examines the Supreme Court's recent decision in Caperton v. Massey, which held an elected state court judge must recuse himself from a case involving his largest campaign donor.  She then goes on to argue that the decision does not help criminal defendants who "rely on judges to protect their rights."  Frost points to studies which show that elected judges become notably harder on criminal defendants, and are more likely to impose the death penalty as elections approach, and believes that judges pay closer attention to popular opinion when they are elected.  She concludes, however, that "the most pressing problem with judicial elections right now is that voters are being manipulated by special interests that care only about their bottom line, and not about electing the best qualified judges."

Somin Responds to Penalver's Defense of Didden:  Yesterday's Blog Scan reported on a discussion of Didden v. Port Chester by Law Professor Eduardo Penalver.  Penalver's post mentioned Ilya Somin, who had signed onto an amicus brief asking the Supreme Court to review the case.  Last night Ilya Somin posted his response to Penalver at Volokh Conspiracy.  While Penalver was critical of the Second Circuit's decision to affirm the district court without a more thorough discussion, Somin defends his belief that the Second Circuit's resolution of the statute of limitations issue was in fact inseparable from its resolution of the substantive question.


Re: the retroactivity of Belton, doesn't fn. 11 in Gant explicitly state that officers' reliance on Belton will shield them from liability?

Yes, but civil liability of the officers and admissibility of the evidence are two different things.

Ah, I see. So does that mean that defendants convicted pre-Gant based on evidence obtained in a manner consistent with Belton but now INconsistent with Gant can re-challenge their convictions? Would a court be permitted in a habeas to remand the case with such evidence excluded?

(PS. In my initial post, I obviously meant the retroactivity of Gant, not Belton.)

On federal habeas, no, because (1) retroactivity is limited to direct review, not habeas, with exceptions not applicable here, (Teague v. Lane) and (2) an exclusionary rule claim fairly litigated on direct appeal is not cognizable on federal habeas (Stone v. Powell).

States may adopt different rules for their state collateral reviews, however.

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