Legal Commentary

Fourth Amendment Bleg: Good Faith Exception For Changing Law

By Orin Kerr

Back in October, I filed a pro bono petition for certiorari in McCane v. United States asking the Supreme Court to resolve the circuit split on whether the good faith exception to the Fourth Amendment applies to changing law. The government has filed its BIO, and I?m working on the reply brief. I was hoping I could get some free help from readers who may know of similar cases pending in lower courts.

Specifically, I?m trying to compile a list of the other federal circuits and state Supreme Court where this issue is presently pending. These will be cases with facts like Arizona v. Gant that ask whether the good faith exception of Herring excuses the Gant violation. The Ninth and Tenth Circuit have split on the issue since Gant, and about 20 district courts and state intermediate courts have weighed in since then, also dividing: I?m trying to get a full sense of the federal circuits and state Supreme Courts that presently have the issue on their docket in a pending case.

The Westlaw ALLBRIEFS database is very incomplete, but it reveals cases with this issue pending in the 4th, 6th, and 8th Circuits and the Supreme Courts of Colorado, Ohio, Kansas, Washington and Idaho. If you know of other cases pending in other circuits or state supreme courts that raise the issue, could let me know via e-mail or in the comments? Thanks.

Full post as published by The Volokh Conspiracy on January 20, 2010 (boomark / email).