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CA9 denies rehearing en banc in its Gant retroactivity case

By John Wesley Hall, Jr.

The Ninth Circuit denies rehearing en banc in its August 2009 Gant retroactivity-with-no-good-faith-exception case. In that case, the defendant had a cert petition pending when Gant was decided, and SCOTUS GVR'd the case. On remand, Gant was applied. The rehearing dissent says that Herring and Krull dictate the result, but it reads like the officers were held liable for a judgment for violating the Fourth Amendment. As the majority says: "Finally, the reader should bear in mind that this case deals with a defendant's right to suppress evidence obtained by an unconstitutional search. It does not involve whether the officers who conducted the search are entitled to qualified immunity. The rights of the defendant, not those of the police, are at issue...continue to full post

Full post as published by Fourth Amendment on March 18, 2010 (boomark / email).