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A California Court Debates the Good Faith Exception to the Exclusionary Rule post-Gant

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Yesterday, the California Third District Court of Appeal declared in People v. Branner (C059288) that the exclusionary rule did not prevent the use of evidence obtained by an officer relying on a rule of the U.S. Supreme Court even when the Court later changed its mind about the rule.  According to the majority, "the guilty should not go free when the constable did precisely what the U.S. Supreme Court told him he could do, but the Court later decides it was the one who blundered." 

Branner's case began here in Sacramento.  In 2004, defendant Jasper Dwight Branner, was arrested when officers investigating Vehicle Code violations discovered he had not complied with drug offender registration requirements.  The officers arrested Branner, placed him in the back of the patrol car, and searched the passenger compartment of his vehicle.  They discovered cocaine base and a gun.  New York v. Belton authorized this type of search incident to arrest in 1981, but last term's Arizona v. Gant limited an officer's ability to search to areas within the arrestees immediate control and areas "within which he might gain possession of a weapon."

The court's debate presents some interesting questions on the deterrent purpose of the exclusionary rule and whether the Branner should benefit from Gant's retroactive effect. 
At trial, Branner motioned to suppress the evidence and the gun.  His motion was denied and he pled no contest to possession and admitted a prior conviction allegation.  He appealed in April 2009, and the court affirmed.  The very next day the U.S. Supreme Court decided Gant, and the California Court of Appeal granted Branner's petition for rehearing.  Itordered supplemental briefing to address whether the purpose of the exclusionary rule was served if it were applied to a search carried out in reliance on a law that was valid at the time the search occurred.

The majority rejected Branner's argument that the cocaine had been obtained as part of an unlawfully prolonged detention "based on an investigation unrelated to [the] Vehicle Code violations."  It also rejected Branner's claim that evidence should be suppressed in light of Gant. It agreed that Gant applied retroactively, but upheld the search and seizure by applying the good-faith exception to the exclusionary rule.  While the search technically violated the Fourth Amendment unless it was "reasonable to believe the vehicle contained evidence of the offense of arrest," the court reasoned that the "remedial purpose" of the exclusionary rule - deterring invasive government searches - would not be served by excluding evidence in Branner's case.  The court relied on United States v. Leon, Illinois v. Krull, Arizona v. Evans and Herring v. United States to conclude that application of Gant would have little deterrent effect on officers that had relied in good faith on Belton.  It wrote, "[i]f suppression of the truth by exclusion of the evidence is not mandated by the Fourth Amendment, and presentation of the truth by introduction of evidence secured through violation of the Fourth Amendment works no Fourth Amendment wrong, then retroactive application of the new constitutional rule in Gant does not require the suppression of evidence obtained in compliance with Belton prior to the decision in Gant... the question of whether evidence should be suppressed is a separate and distinct question from whether the Fourth Amendment is violated." 

The dissenting judge disagreed.  Judge Ronald Robie found a recent Ninth Circuit opinion refusing to apply the good-faith exception to a search authorized under Belton, but ruled unconstitutional post-Gant, more persuasive than the majority's reasoning.  For Judge Robie it was less important to advance the deterrent purpose of the exclusionary rule than it was to  follow "one of the basic norms of constitutional adjudication... treating similarly situated defendants the same."  He reasoned, "to treat a defendant in this case the same as the defendant in Gant, we must give him (as the Supreme Court gave Gant) the benefit of the exclusionary rule if the search of his vehicle violated the principles announced in Gant, even though the officers who conducted the search had no reason to anticipate the Gant decision.  And we must do this even though it will not serve any deterrent purpose (just as giving Gant the benefit of the exclusionary rule served no deterrent purpose)."

The opinions in Branner set the stage for some interesting debate on the reach of the good-faith exception after Gant.  So far two circuit courts have weighed in on the debate. The Ninth Circuit found reason to exclude evidence in United States v. Gonzalez, but the Tenth Circuit, in United States v. McCane has held that the exclusionary rule is inapplicable.         

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