Decision below (CTA11)
Question Presented (from cert petition):
Whether the good-faith exception to the exclusionary rule applies to a search authorized by precedent at the time of the search that is subsequently ruled unconstitutional.
Fall-out from the Court’s decision in Arizona v. Gant, 556 U.S. ___, 129 S. Ct. 1710 (2009), the question now being whether the holding in that case (search-incident rationale can’t justify search of vehicle when driver has been removed from vehicle) applies where search pre-dated Gant. Wisconsin has already applied good-faith reliance on pre-Gant caselaw to uphold such searches, State v. David A. Dearborn, 2010 WI 84. As a result, there are a number of pending appeals that will be directly affected by the outcome of this grant. (Dearborn has itself been docketed, 10-7057, as has what was a companion case in state court, State v. Michael A. Littlejohn, 10-7013.) But the implications run a bit deeper than the immediate factual context. The larger question is whether the good-faith rule encompasses police reliance on judicial caselaw (as opposed to, say, a particular judicially-authorized document), not merely whether police reliance on pre-Gant law sustains this search. Wisconsin, for example, applied the good-faith rule to allow police entry under subsequently discredited caselaw authority dispensing with the knock-and-announce requirement, State v. Lance R. Ward, 2000 WI 3. Of course, the knock-announce requirement has since become something of a dead letter anyway, for other reasons, but the point is, more than Dearborn, et al., may be swept away by the Davis backwash. You’ll find more in the scholarly discussion by leading expert Orin S. Kerr, “Good Faith, New Law, and the Scope of the Exclusionary Rule.”
