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The Exclusionary Rule, Good Faith, Gant, and Justice Kagan

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"The criminal is to go free because the constable has blundered," Judge Benjamin Cardozo famously declared in deciding not to adopt the Fourth Amendment exclusionary rule for New York courts, before it was deemed a federal constitutional requirement.  See People v. Defore, 242 N.Y. 13, 21 (1926).  But what if it wasn't the constable's "blunder," but a judge's?  In the context of issuing warrants, the Supreme Court held 26 years ago that if the police officer relies in good faith on a judge's determination of probable cause in issuing the warrant, the evidence will not be suppressed merely because a later court finds probable cause was lacking.  See United States v. Leon, 468 U.S. 897 (1984).

What if a police officer relies on an authoritative precedent by a court, and that precedent is later overturned based on a new edict from a higher court?  Is this just like Leon?  The constable did not blunder.  He did what a court told him he could do.

In United States v. Davis, No. 08-16654, the Eleventh Circuit was presented with this question.

Police arrested Willie Gene Davis after a traffic stop and searched the car in which he was riding as permitted by our decision in United States v. Gonzalez, 71 F.3d 819, 825 (11th Cir. 1996). On evidence obtained from that search, Davis was convicted for the unlawful possession of a firearm. During the pendency of his appeal to this court, the Supreme Court overturned Gonzalez in Arizona v. Gant, 129 S. Ct. 1710 (2009). We now decide whether the Fourth Amendment's exclusionary rule requires the suppression of evidence obtained from the search.
And the answer was:

With this decision, we join the Fifth and Tenth Circuits in refusing to apply the exclusionary rule when the police have reasonably relied on clear and well-settled precedent.
The Ninth Circuit had held the other way in United States v. Gonzalez, 578 F.3d 1130, now pending before the Supreme Court as case No. 10-82, and as we have previously noted, relisted twice.  So why did the Court take up Davis and leave Gonzalez hanging?

Well, here is my speculation.  Gonzalez is a government petition case.  Although the petition was actually filed after Justice Kagan left the SG's office, it was surely under consideration before that.  Davis is a defendant's petition, filed June 8, after she had left the office.  Perhaps she needs to recuse in Gonzalez but not in Davis.

Update: Orin Kerr at VC notes that much of the Davis petition is copied from a petition he wrote in an earlier case.  He doesn't seem to mind, although there is discussion in the comments about copyright.

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I think you are correct about recusal being why this was taken and not Gonzalez.

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