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In 2009, the Supreme Court handed down several important decisions on criminal procedure. Perhaps unanticipated at the time, two of those decisions have been read together by lower courts to reach dramatically different results. The emerging split has been sharp, bringing with it urgent calls for the Court to intervene.

Laying the foundation for the conflicting decisions was New York v. Belton, in which the Supreme Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile” along with any containers found therein. Following that decision, lower courts regularly upheld warrantless searches of vehicles conducted incident to an arrest after the police had secured the arrestee away from the target vehicle. In 2009, the United States Supreme Court, in Arizona v. Gant, found that these procedures did not comply with the rationale underlying Belton, and declined to adopt the lower courts’ broad interpretations of that decision.

At the time the Supreme Court decided Gant, a number of cases were pending on direct review before lower courts based on evidence obtained in compliance with each jurisdiction’s understanding of the Belton rule. Because Gant did not require lower courts to mechanically suppress evidence obtained in reliance on pre-Gant precedent, prosecutors searched for alternative justifications to uphold the admissibility of evidence collected according to these methods. They were able to find the support for their position in Herring v. United States, a decision handed down by the Supreme Court three months before Gant, which significantly enlarged the scope of the good-faith exception to the exclusionary rule.

In Herring, the Supreme Court held that exclusion is an inappropriate remedy for Fourth Amendment violations caused by the objectively reasonable actions of law enforcement employees. Government lawyers quickly deployed this new weapon in their battles against suppression where police officers obtained incriminating evidence in accordance with pre-Gant precedent. Faithfully following the Herring court’s decree that the exclusionary rule should be used only as a “last resort,” government advocates successfully argued that the good-faith exception should be extended to include a law enforcement officer’s reasonable reliance on the settled case law of a jurisdiction that is subsequently invalidated. Such rulings, however, have given rise to a growing conflict among authorities, resulting in the disparate treatment of similarly situated defendants.

This Comment will argue that courts should continue to expand the good-faith exception to the exclusionary rule to include a law enforcement officer’s reasonable reliance on the settled case law of the jurisdiction that is subsequently ruled unconstitutional. Such a ruling would be consistent with the Supreme Court’s previous decisions addressing the good-faith exception, and logically follows from their rationale. Furthermore, expanding the scope of the exception would comport with the balancing test courts are required to undertake when confronted with questions of exclusion. Finally, courts should not be deterred by arguments that the Supreme Court’s Fourth Amendment retroactivity doctrine precludes application of the expanded good-faith exception. The few courts that have adopted this approach have misinterpreted the Court’s retroactivity precedent and many of the arguments they employ are overstated.

Part I of this Comment will examine the historical development of the good-faith exception through Herring. Part II will discuss the split in authority that has come about as a result of the Supreme Court’s decisions in Gant and Herring. Finally, Part III will analyze arguments for and against broadening the scope of the good-faith exception to the exclusionary rule, ultimately concluding that the good-faith exception should include a police officer’s objectively reasonable reliance on settled case law that is subsequently overruled.