Legal Commentary

Good-Faith Exception for Changing Law Likely Headed to the Supreme Court

By Orin Kerr

Earlier this year, I blogged a lot about the circuit split that has emerged on a critical question of Fourth Amendment law: Whether the good-faith exception to the Fourth Amendment applies when a police officer conducts a search that was considered lawful at the time it occurred that is later recognized as unlawful before the conviction becomes final. As regular readers might recall, I filed a pro bono cert petition in United States v. McCane to try to get the Supreme Court to take the issue, and after that petition was denied, I wrote a series of blog posts on why I think the good faith exception does not apply in that setting.

Now that I?m back blogging, I thought I would flag an important development: After opposing certiorari in McCane, the DOJ recently changed course and filed its own petition for certiorari seeking review of the same issue in the case that created the direct circuit split with McCane, United States v. Gonzalez. You can read DOJ?s petition for certiorari in Gonzalez here. DOJ?s new position makes it very likely that the Supreme Court will agree to hear this issue in the upcoming Term.

I?m presently writing a new law review article on the question, tentatively titled Good Faith, New Law, and the Scope of the Exclusionary Rule. I will post the draft as soon as it?s complete, which should be in about 2 or 3 weeks.

Full post as published by The Volokh Conspiracy on July 27, 2010 (boomark / email).