United States v. Buford

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 11a0043p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiff-Appellant, -

UNITED STATES OF AMERICA,

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No. 09-5737

v.

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Defendant-Appellee. -

JERRY THOMAS BUFORD, JR.,

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Appeal from the United States District Court

for the Middle District of Tennessee at Nashville.

No. 09-00021-001—Aleta Arthur Trauger, District Judge.

Argued: October 20, 2010

Decided and Filed: February 10, 2011

Before: GILMAN and GRIFFIN, Circuit Judges; ROSE, District Judge.*

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COUNSEL

ARGUED: Joseph Alexander Little, ASSISTANT UNITED STATES ATTORNEY,

Nashville, Tennessee, for Appellant. Michael C. Holley, OFFICE OF THE FEDERAL

PUBLIC DEFENDER, Nashville, Tennessee, for Appellee. ON BRIEF: Addison

Thompson, ASSISTANT UNITED STATES ATTORNEY, Nashville, Tennessee, for

Appellant. Michael C. Holley, Hugh M. Mundy, OFFICE OF THE FEDERAL PUBLIC

DEFENDER, Nashville, Tennessee, for Appellee.

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OPINION

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GRIFFIN, Circuit Judge. Following a traffic stop on May 18, 2008, Nashville

Police arrested defendant Jerry Thomas Buford, Jr. and searched the vehicle in which

*

The Honorable Thomas M. Rose, United States District Judge for the Southern District of Ohio,

sitting by designation.

1

No. 09-5737 United States v. Buford Page 2

he was riding, as was then permitted by the precedent of the Court of Appeals for the

Sixth Circuit. See, e.g., United States v. White, 871 F.2d 41, 44 (6th Cir. 1989). Based

upon the evidence obtained from the search and his subsequent statement to the police,

Buford was indicted for being a felon in possession of a firearm, in violation of 18

U.S.C. §§ 922(g)(1) and 924. Shortly before trial, the Supreme Court in Arizona v.

Gant, 129 S. Ct. 1710 (2009), overruled this court’s holdings regarding vehicle searches

incident to arrest. In light of Gant, the district court granted Buford’s motion to suppress

all evidence connected to the search of his vehicle, including his statement to the police.

The government now timely appeals, and we reverse and remand for further proceedings.

In doing so, we hold that the good-faith exception precludes application of the

exclusionary rule when police act in objectively reasonable reliance upon clear and

settled Sixth Circuit precedent that is later overruled by the United States Supreme

Court. Accordingly, we reverse the district court’s order granting Buford’s motion to

suppress and remand for further proceedings consistent with this opinion.

I.

On May 18, 2008, shortly after midnight, officers of the Metropolitan Nashville

Police Department (“MNPD”) conducted a traffic stop of an automobile registered to

Buford and occupied by two men. The stop was made after an officer checked the

vehicle’s plate registration and learned that its owner-registrant, defendant Buford, had

an outstanding arrest warrant for a probation violation.

Following the stop, an officer spoke with the driver, defendant Buford. The

officer verified Buford’s identity and the validity of the warrant before taking him into

custody. His passenger, Kristopher Lawson, was also removed from the automobile.

During a subsequent search of the vehicle incident to arrest, MNPD Officer Justin

Chisolm recovered a loaded Ruger .45 caliber pistol underneath the front passenger seat.

Buford was transferred to the Davidson County Criminal Justice Center

(“DCCJC”) for booking on his probation violation. According to the district court, “[a]s

the defendant and the officers were approaching the DCCJC, the defendant, in

conjunction with a conversation about contraband, apparently volunteered that the gun

No. 09-5737 United States v. Buford Page 3

‘was in the car [be]cause people try to rob me for the truck.’” Buford was charged with

unlawful possession of the gun.

Based upon the recent authority of Arizona v. Gant, Buford moved to suppress

the firearm and his statement. In Gant, the Supreme Court held that a warrantless search

of an automobile incident to a recent occupant’s arrest violates the Fourth Amendment

unless “the arrestee is within reaching distance of the passenger compartment at the time

of the search or it is reasonable to believe the vehicle contains evidence of the offense

of arrest.” 129 S. Ct. at 1723. In the district court, Buford maintained that “at the time

of the search, [he] was handcuffed and locked inside a patrol car. Likewise, Lawson was

removed from the Blazer and was without access to the passenger area.” Buford also

alleged that he “was arrested due to an outstanding warrant for a probation violation. . . .

[and] [t]hus, the search of his car was not based upon a reasonable expectation that

evidence related to that violation would be found therein.” In response, the government

conceded “that, for purposes of the facts of this specific case, the search incident to the

arrest did not fall within the parameters elaborated in Gant.”

The district court held a June 11, 2009, suppression hearing at which Officer

Chisolm and MNPD Officer Chris Gilder, a legal instructor at the MNPD Training

Academy, testified.1 Officer Chisolm testified that he took a police course taught by

Gilder in December 2005 that included training related to the search of vehicles.

According to Gilder, prior to April 22, 2009, police-academy participants in his course

received the following instructions regarding searches of vehicles incident to arrest:

“[W]hen a person is taken into custody . . . their person may be searched . . . . And in

the context of a motor vehicle, [the permissible search area] would include the passenger

compartment . . . and any unlocked containers that are located within it.” Gilder further

testified that “this instruction” did not “depend on whether the subject was in handcuffs

or” on “the underlying cause of arrest . . . .” This instruction was consistent with Sixth

Circuit precedent on May 18, 2008, when Buford’s vehicle was stopped and searched.

1

Gilder is licensed to practice law in Tennessee.

No. 09-5737 United States v. Buford Page 4

On June 11, 2009, the district court granted Buford’s motion to suppress. The

district court reasoned that under the retroactivity principle and, specifically, Griffith v.

Kentucky, 479 U.S. 314, 328 (1987), “the rule in Gant applies with the same force as if

Gant were on the books at the time of the defendant’s arrest.” In its ruling, the district

court held that the good-faith exception to the exclusionary rule did not apply.

The government timely appeals.

II.

“The grant or denial of a motion to suppress is a mixed question of fact and law.

On appeal, we review the district court’s findings of fact for clear error and its

conclusions of law de novo.” United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007)

(citations omitted). This case presents solely a legal question, and thus we review it de

novo.

III.

The Fourth Amendment guarantees the right of liberty against unreasonable

searches and seizures by providing:

The right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and

the persons or things to be seized.

U.S. Const. amend. IV.

However, “there [are] exceptions to the warrant requirement.” United States v.

U.S. Dist. Court for the E. Dist. of Mich., S. Div., 407 U.S. 297, 318 (1972) (citing

Chimel v. California, 395 U.S. 752 (1969)). Relevant to the present case, the law is well

established that when police make an arrest, they may search “the arrestee’s person and

the area ‘within his immediate control’” without obtaining a warrant. Chimel, 395 U.S.

at 763. That rule is justified by the need “to remove any weapons that the [arrestee]

might seek to use in order to resist arrest or effect his escape[,]” and the need to prevent

No. 09-5737 United States v. Buford Page 5

the “concealment or destruction” of evidence. Id. at 763; accord Thornton v. United

States, 541 U.S. 615, 620 (2004); Knowles v. Iowa, 525 U.S. 113, 116-17 (1998).

In New York v. Belton, 453 U.S. 454 (1981), the Supreme Court applied its

search-incident-to-arrest jurisprudence to the motor-vehicle context. The Court

highlighted the difficulty in determining the precise area within the immediate control

of the arrestee, noting “that articles inside the relatively narrow compass of the passenger

compartment of an automobile are in fact generally, even if not inevitably, within ‘the

area into which an arrestee might reach in order to grab a weapon or evidentiary

ite[m].’” Id. at 460 (alteration in original) (quoting Chimel, 395 U.S. at 763). Expressing

a desire to establish a “workable rule[,]” the 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 that

automobile.” Id. at 460 (footnote omitted).

In this circuit, before Gant, “our consistent reading of Belton ha[d] been that,

once a police officer has effected a valid arrest, that officer can search the area that is or

was within the arrestee’s control.” White, 871 F.2d at 44. We, like the majority of other

circuits, interpreted Belton to allow law enforcement officers to search a vehicle incident

to a lawful custodial arrest of its occupants without a warrant or probable cause, “even

after the arrestee was handcuffed and placed in the backseat of a police cruiser.” United

States v. Patterson, 993 F.2d 121, 123 (6th Cir. 1993) (per curiam); see also United

States v. Nichols, 512 F.3d 789, 797 (6th Cir. 2008). “Although there [was] a split in the

circuits on this point, we [had] not wavered in our adherence to this rule.” Patterson,

993 F.2d at 123 (footnote omitted). Thus, when the search occurred in this case on May

18, 2008, there was no doubt as to its constitutionality in the Sixth Circuit, if not most

of the country. See Gant, 129 S. Ct. at 1718 (acknowledging that Belton was “widely

understood to allow a vehicle search incident to the arrest of a recent occupant even if

there [was] no possibility the arrestee could gain access to the vehicle at the time of the

search”).

No. 09-5737 United States v. Buford Page 6

This changed when the Supreme Court decided Gant on April 21, 2009. In Gant,

the Supreme Court clarified its holding in Belton, as well as its subsequent application

of that ruling in Thornton, and held that the search of a vehicle incident to the arrest of

a recent occupant is justified only if the arrestee was unrestrained and within reaching

distance of the passenger compartment at the time of the search, or if it was reasonable

for the arresting officers to believe that evidence relevant to the crime of arrest might be

found in the vehicle. Gant, 129 S. Ct. at 1723. The Supreme Court thus rejected any

broad understanding of Belton as applying the Chimel rationale to searches beyond the

arrestee’s reaching distance.2 Id. at 1718-19.

It is firmly established that a decision of the Supreme Court declaring a new

constitutional rule applies “to all similar cases pending on direct review.” Griffith, 479

U.S. at 322-23; see also United States v. Johnson, 457 U.S. 537, 562 (1982) (holding

that a decision of the Supreme Court “construing the Fourth Amendment is to be applied

retroactively to all convictions that were not yet final at the time the decision was

rendered”). This is true even when a Supreme Court decision adopts a new rule that

constitutes a “clear break” with past cases. Griffith, 479 U.S. at 328 (internal quotation

marks omitted). Consequently, because Buford’s case was not yet final when Gant was

decided, he benefits from the rule announced in that decision.

As the government concedes, when Gant is applied to the facts of this case, it is

clear that the vehicle search in question violated Buford’s Fourth Amendment rights.

Here, both Buford and his passenger were secured and therefore unable to reach the

passenger compartment of the vehicle at the time of the search. Moreover, Buford was

arrested for a probation violation, “an offense for which police could not expect to find

2

As an initial matter, Buford argues that the good-faith exception argued by the government is

not presented on the record facts, and thus this court should dismiss the appeal without reaching that issue.

Here, both parties clearly established that the search in question occurred after both Buford and his

passenger were out of reach of the vehicle’s passenger compartment. Chisolm testified that he did not

begin his search of the vehicle until Buford was in handcuffs and walking away from the vehicle.

Moreover, Chisolm stated that his understanding, prior to Gant, was that he was permitted to search

“where [arrestees] were when they were arrested[,] and that he conducted “that type of search . . . on May

18, 2008 of the defendant’s car[.]” (Emphasis added.) Similarly, Buford argued to the district court that

“at the time of the search, [he] was handcuffed and locked inside a patrol car. Likewise, Lawson was

removed from the Blazer and was without access to the passenger area.” Given these facts, we hold that

the issue brought by the government is properly before us.

No. 09-5737 United States v. Buford Page 7

evidence in the passenger compartment . . . .” Gant, 129 S. Ct. at 1719. Thus, although

the search Officer Chisolm undertook in this case was done in accordance with our well-

settled precedent at the time it was conducted, we must still hold, pursuant to Gant, that

the search of Buford’s vehicle was unconstitutional.

IV.

However, our determination that the search violated Buford’s constitutional

rights is not dispositive of this appeal. As the Supreme Court has repeatedly stated, the

suppression of evidence “is not an automatic consequence of a Fourth Amendment

violation.” Herring v. United States, 129 S. Ct. 695, 698 (2009); see also id. at 700

(noting that the Supreme Court has “repeatedly rejected the argument that exclusion is

a necessary consequence of a Fourth Amendment violation”). Indeed, although “[t]he

Fourth Amendment protects ‘[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures,’” it “‘contains

no provision expressly precluding the use of evidence obtained in violation of its

commands[.]’” Id. at 699 (second alteration in original) (quoting Arizona v. Evans, 514

U.S. 1, 10 (1995)).

To address violations of the Fourth Amendment, the Supreme Court established

“an exclusionary rule that, when applicable, forbids the use of improperly obtained

evidence at trial.” Herring, 129 S. Ct. at 699. The Court has emphasized, however, that

“the exclusionary rule is not an individual right and applies only where it ‘result[s] in

appreciable deterrence.’” Id. at 700 (alteration in original) (quoting United States v.

Leon, 468 U.S. 897, 909 (1984)). Because the exclusion of probative evidence both

imposes a “costly toll upon truth-seeking and law enforcement objectives” and “offends

basic concepts of the criminal justice system” by “letting guilty and possibly dangerous

defendants go free,” the Court has made clear that “the benefits of deterrence must

outweigh the costs” in order to warrant the exclusion of evidence obtained in violation

of the Fourth Amendment. Id. at 700-01 (citations and internal quotation marks

omitted); see also United States v. Masters, 614 F.3d 236, 243 (6th Cir. 2010) (noting

that the Supreme Court’s recent jurisprudence “weighed more toward preserving

No. 09-5737 United States v. Buford Page 8

evidence for use in obtaining convictions, even if illegally seized, than toward excluding

evidence in order to deter police misconduct unless the officers engage in ‘deliberate,

reckless, or grossly negligent conduct.’”) (quoting Herring, 129 S. Ct. at 702).

“To trigger the exclusionary rule, police conduct must be sufficiently deliberate

that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence

is worth the price paid by the justice system.” Herring, 129 S. Ct. at 702. As a result,

“evidence should be suppressed ‘only if it can be said that the law enforcement officer

had knowledge, or may properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.’” Id. at 701 (emphasis added) (quoting

Illinois v. Krull, 480 U.S. 340, 348-49 (1987)). Thus, “the Supreme Court has held

suppression is not an available remedy when police officers conducted a search in good

faith reliance on some higher authority, such as a warrant or a statute, even if the warrant

or statute were later held invalid or unconstitutional (the ‘good faith exception’).”

United States v. Gonzalez, 598 F.3d 1095, 1101 (9th Cir. 2010) (Bea, J., dissenting from

the denial of rehearing en banc).

Here, we must decide whether the exclusionary-rule remedy requires that we

suppress the fruits of the unconstitutional search of Buford’s vehicle notwithstanding the

police’s reliance on “a different kind of authority, namely” this circuit’s well-settled case

law. Id. At the outset, we recognize that, although neither this court nor the Supreme

Court has previously addressed the precise issue at hand,3 four other circuits have

addressed the question presented in this appeal.4 See United States v. Jackson, 825 F.2d

853 (5th Cir. 1987) (en banc), cert. denied, 484 U.S. 1011 (1988); United States v.

McCane, 573 F.3d 1037 (10th Cir. 2009), cert. denied, 130 S. Ct. 1686 (2010); Davis,

3

We note, however, that the Supreme Court recently granted certiorari to address the question

that the instant case presents. See United States v. Davis, 598 F.3d 1259 (11th Cir. 2010), cert. granted,

131 S. Ct. 502 (2010).

4

The Seventh Circuit has “expressed skepticism about applying the [exclusionary] rule’s good-

faith exception when police had relied solely on caselaw in conducting a search[.]” Davis, 598 F.3d at

1263-64 (discussing United States v. Real Prop. Located at 15324 Cnty. Highway E., 332 F.3d 1070, 1076

(7th Cir. 2003)); see also United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001) (holding that “the

uncertain state of the law at the time made reliance on the warrant objectively reasonable” even though

the warrant was held unlawful in precedents handed down after the search occurred).

No. 09-5737 United States v. Buford Page 9

598 F.3d at 1266; United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009), petition for

cert. filed, 79 U.S.L.W. 3062 (U.S. July 14, 2010) (No. 10-82). “[W]hile we recognize

that we are not bound by the law of other Circuits, this court has . . . routinely looked to

the majority position of other Circuits in resolving undecided issues of law. We also

take note of the importance of maintaining harmony among the Circuits on issues of

law.” Wong v. PartyGaming Ltd., 589 F.3d 821, 827-28 (6th Cir. 2009) (citations

omitted).

Both the Tenth and Eleventh Circuits have decided cases nearly identical to the

one presented here, i.e., situations in which the police have conducted searches later

made unconstitutional by Gant, but which were, at the time they were conducted,

consistent with circuit pre-Gant precedent. The defendant in each case, like Buford,

argued that Griffith’s retroactivity rule required the court to suppress the evidence.

These courts rejected the claim, reasoning that “[r]elying on a court of appeals’

well-settled and unequivocal precedent is analogous to relying on a statute, . . . or a

facially sufficient warrant, . . . not to personally misinterpreting the law.” Davis, 598

F.3d at 1267-68; see also McCane, 573 F.3d at 1045. Accordingly, our sister circuits

held that, by application of the good-faith exception, “the exclusionary rule does not

apply when the police conduct a search in objectively reasonable reliance on . . . well-

settled precedent, even if that precedent is subsequently overturned.” Davis, 598 F.3d

at 1264; see also McCane, 573 F.3d at 1045.5

The Fifth Circuit reached the same holding in Jackson, 825 F.2d at 854. Jackson

overturned Fifth Circuit precedent that had allowed warrantless searches at a checkpoint

under the border search exception to the Fourth Amendment. Id. The en banc court in

Jackson ruled that the checkpoint searches were unconstitutional, but then applied the

good-faith exception and affirmed the convictions in light of the officers’ reasonable

5

A number of state supreme courts have also held “that the exclusionary rule should not apply

where the officers relied in good faith on clear and settled law that was only subsequently changed.” State

v. Dearborn, 786 N.W.2d 97, 106-07 (Wis. 2010); State v. Baker, 229 P.3d 650, 663-64 (Utah 2010)

(“[E]vidence obtained in objective reasonable reliance on settled judicial precedent that is later overturned

should not be excluded.”); State v. Frederick, 236 P.3d 1269, 1276 (Idaho 2010) (“It is our view that

retroactivity rules do not preclude application of the good faith exception when an officer relies on case

law.”). But cf. State v. McCarty, 229 P.3d 1041 (Colo. 2010).

No. 09-5737 United States v. Buford Page 10

reliance on Fifth Circuit law. Id. at 866. The court reasoned that officers who relied on

then-existing circuit precedent were not acting lawlessly and did not need to be deterred.

As a result, the court determined that “the exclusionary rule should not be applied to

searches which relied on Fifth Circuit law prior to the change of that law on the date of

the delivery of this opinion.” Id.; see also United States v. Morgan, 835 F.2d 79, 80-81

(5th Cir. 1987) (applying good-faith exception for changed interpretations of law

recognized by Jackson).

In stark contrast to the rulings of the Fifth, Tenth, and Eleventh Circuits, the

Ninth Circuit has rejected the good-faith exception on substantially similar facts. See

Gonzalez, 578 F.3d at 1131-33. Like the defendant here, Gonzalez was lawfully stopped

while riding in a vehicle. Gonzalez, 598 F.3d at 1101 (Bea, J., dissenting from the denial

of rehearing en banc). “After the vehicle was apparently secure against any risk to the

officer, and the vehicle’s occupants had moved away from the vehicle, [the officer]

searched the vehicle and discovered Gonzalez’s 9mm pistol in the glove compartment.”

Id. Gonzalez was subsequently convicted for possession of a firearm and ammunition

by a prohibited person, in violation of 18 U.S.C. § 922(g)(1). United States v. Gonzalez,

290 F. App’x 51, 51-52 (9th Cir. 2008). Following its well-settled precedent, the Ninth

Circuit affirmed in an unpublished decision. Id. at 52. However, after the Supreme

Court decided Gant, it remanded the Gonzalez case for further consideration in light of

that decision. See Quintana v. United States, 129 S. Ct. 2156 (2009); see also Gonzalez,

578 F.3d at 1131.

On remand, the Ninth Circuit ruled that the good-faith exception did not apply

and therefore reversed the conviction. Gonzalez, 578 F.3d at 1133. The court reasoned

that applying the good-faith exception would “violate the integrity of judicial review by

turning the court into, in effect, a legislative body announcing new rules but not applying

them, rather than acting in our proper role as an adjudicative body deciding cases.” Id.

at 1132 (citation and internal quotation marks omitted). Further, the Ninth Circuit

explained that the good-faith exception was not applicable because its application would

conflict with the Supreme Court’s retroactivity decisions:

No. 09-5737 United States v. Buford Page 11

[T]his case should be controlled by long-standing precedent governing

the applicability of a new rule announced by the Supreme Court while a

case is on direct review. The Court has held that “a decision of this

Court construing the Fourth Amendment is to be applied retroactively to

all convictions that were not yet final at the time the decision was

rendered.” United States v. Johnson, 457 U.S. 537, 562 (1982); see

Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (finding that even

decisions constituting a “clear break” with past precedent have

retroactive application). This precedent requires us to apply Gant to the

current case without the overlay of an application of the good faith

exception. To hold that Gant may not be fully applied here, as the

Government urges, would conflict with the Court’s retroactivity

precedents.

Id. Because, in Gant, the Arizona Supreme Court had “ordered the suppression of the

evidence found as a result of the unconstitutional search[,]” and the United States

Supreme Court affirmed that judgment, the Ninth Circuit concluded that the same

outcome was required in Gonzalez. Id. at 1133. In so doing, the Ninth Circuit

emphasized that its exclusionary rule holding was ultimately “concerned . . . with the

Fourth Amendment rights of the defendant.” Id. at 1133 n.1.

The Ninth Circuit subsequently denied the government’s petition for rehearing

en banc. Seven judges dissented from the denial, stating that the panel’s decision

conflicted with Herring, and that suppressing evidence obtained by police who relied on

pre-Gant law would not further the sole rationale of the exclusionary rule – deterrence

of police misconduct. Gonzalez, 598 F.3d at 1100-09 (Bea, J., dissenting from the denial

of rehearing en banc).

In an opinion concurring in the denial of rehearing en banc, Judge Betty Fletcher,

joined by the other two original panel members, explained the panel’s reasoning more

fully and reiterated that “[t]he precedents that controlled our decision in Gonzalez were

those dealing with retroactivity.” Id. at 1097 (B. Fletcher, J., concurring in the denial

of rehearing en banc). Judge Fletcher added that, in the panel’s view, the Supreme

Court’s 1982 decision in Johnson had confronted the “precise[]” question in this case

and had “held that the exclusionary rule applied to cases pending on direct appeal.” Id.

at 1099. Moreover, Judge Fletcher found it important to “bear in mind that this case

No. 09-5737 United States v. Buford Page 12

deals with a defendant’s right to suppress evidence obtained by an unconstitutional

search.” Id. at 1097. Thus, she opined that the seven dissenting judges would

incorrectly deny that “individual right[]” to suppression. Id.

Buford urges us to adopt the reasoning of the Ninth Circuit majority. But the

Ninth Circuit’s reasoning – in both the panel opinion and the opinion concurring in the

denial of rehearing en banc – is flawed in several respects. Most egregiously, the Ninth

Circuit erred in concluding that suppression was compelled by the Supreme Court’s

decisions in Johnson, Griffith, and Gant. Johnson and Griffith reiterate the established

principle that, on direct review, judicial evaluation of the constitutionality of a search

must accurately resolve the constitutional questions by recourse to all authoritative

decisions of the Supreme Court, including those issued after the search in question.

Thus, as discussed above, Gant’s Fourth Amendment holding compels the conclusion

that vehicle searches based on this circuit’s pre-Gant law are unconstitutional. Gant,

however, does not address the issue of the good-faith exception to the exclusionary rule,

which applies only after an underlying search is held unconstitutional. Moreover, the

retroactivity doctrine articulated in Johnson and Griffith does not control the application

of the good-faith exception.

Contrary to the Ninth Circuit’s reasoning, we view Johnson as consistent with

the application of the good-faith exception in this case. As Judge Bea explained in his

opinion dissenting from the Ninth Circuit’s denial of rehearing en banc:

The Court in Johnson argued that suppressing evidence seized in a search

conducted under “unsettled” law might have a deterrent effect on police,

even though suppressing evidence seized in a search conducted under

“settled” law would not. 457 U.S. at 560-61. Johnson, far from

supporting the panel’s opinion, actually provides an example where the

Supreme Court held that the police officer’s reliance on case law was not

objectively reasonable. Johnson is consistent with the application of the

good faith exception announced two years later in Leon. In Johnson, the

issue was searches incident to warrantless home arrests. The Court held

that [that] area of law was “unsettled” and that “[l]ong before Payton [v.

New York, 445 U.S. 573 (1980)], for example, this Court had questioned

the constitutionality of warrantless home arrests. Furthermore, the

Court’s opinions consistently had emphasized that, in light of the

No. 09-5737 United States v. Buford Page 13

constitutional protection traditionally accorded to the privacy of the

home, police officers should resolve any doubts regarding the validity of

a home arrest in favor of obtaining a warrant.” Id. at 560-61.

Therefore, the panel’s concurrence to the order denying rehearing en

banc errs in likening Gant to Payton; the panel’s concurrence overlooks

that law may be settled by courts other than the Supreme Court. [United

States v. Peltier, 422 U.S. 531, 542 (1975)].

Gonzalez, 598 F.3d at 1108-09 (Bea, J., dissenting from the denial of rehearing en banc)

(first and second alteration in original).6

Here, it is clear that, at the time Officer Chisolm acted, his actions were in

compliance with the well-settled law of this circuit. The Sixth Circuit was among the

legion of courts that had interpreted Belton “to allow a vehicle search incident to the

arrest of a recent occupant even if there [was] no possibility the arrestee could gain

access to the vehicle at the time of the search.” Gant, 129 S. Ct. at 1718. Justice

Scalia’s concurring opinion in Thornton specifically cites the Sixth Circuit’s decision

in White as among that “legion” of courts. Thornton, 541 U.S. at 628 (Scalia, J.,

concurring). And five members of the Supreme Court in Gant concluded that the lower

courts had, in fact, adopted the best understanding of Belton’s rule.7 That understanding

of the Belton rule accorded with what “ha[d] been widely taught in police academies”

for over a quarter century and had been followed by law enforcement officers in the field

“in conducting vehicle searches during [that period].” Gant, 129 S. Ct. at 1722.

6

Griffith is also distinguishable because it was a Fourteenth Amendment case that did not deal

with the remedy of exclusion. As Judge Bea noted in his dissent,

Griffith was about Batson challenges and therefore about defendants’ Fourteenth

Amendment rights – a right held by the individual defendant. A prosecutor’s violation

of a defendant’s Fourteenth Amendment rights does not raise the issue of deterrence that

is inherent to the judicially created exclusionary rule. Nor does it raise the balancing

test issues central to the Court’s decision in Herring, 129 S. Ct. at 700.

Gonzalez, 598 F.3d at 1109 (Bea, J., dissenting from the denial of rehearing en banc) (citation omitted).

7

For Justice Scalia, the lower courts had adopted the best reading of “the rule set forth in

[Belton]” as “automatically permitting a [vehicle] search when the driver or an occupant is arrested[,]”

Gant, 129 S. Ct. at 1724 (Scalia, J., concurring), but he concurred in the majority opinion in order to

provide the Court with a majority for its decision. Id. at 1725 (explaining that “a 4-to-l-to-4 opinion”

would be unacceptable). The four dissenting Justices agreed with that reading of Belton and would have

retained it. See id. at 1725 (Breyer, J., dissenting); id. at 1726-27 (Alito, J., dissenting) (joined by the

Chief Justice, Justice Kennedy, and, in pertinent part, Justice Breyer).

No. 09-5737 United States v. Buford Page 14

In our view, the Ninth Circuit disregarded well-established principles requiring

consideration of deterrence before suppressing evidence due to its misinterpretation of

Griffith and Johnson, and its assumption that the question before it pertained to the

substance of Fourth Amendment rights. The court emphasized, for instance, that its

suppression decision “concerned . . . the Fourth Amendment rights of [respondent].”

Gonzalez, 578 F.3d at 1133 n.1. Judge Fletcher’s opinion for the panel concurring in the

denial of rehearing confirms the panel’s view that Gonzalez concerned respondent’s

“right to suppress evidence obtained by an unconstitutional search.” Gonzalez, 598 F.3d

at 1097 (B. Fletcher, J., concurring in the denial of rehearing en banc). The Supreme

Court, however, has consistently held that “the exclusionary rule is not an individual

right.” Herring, 129 S. Ct. at 700; see, e.g., Krull, 480 U.S. at 347; Leon, 468 U.S. at

906; Stone v. Powell, 428 U.S. 465, 486, 495 n.37 (1976). The rule is simply a

“‘judicially created remedy[,]’” Leon, 468 U.S. at 906 (quoting United States v.

Calandra, 414 U.S. 338, 348 (1974)), that “has never been applied except ‘where its

deterrence benefits outweigh its ‘substantial social costs[.]’” Hudson v. Michigan, 547

U.S. 586, 594 (2006) (quoting Penn. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363

(1998)).

Nothing in the Gant decision justifies a departure from the Supreme Court’s long

standing good-faith-exception precedent. Indeed, Gant had no occasion to address

remedial issues because the question presented in Gant addressed only the underlying

Fourth Amendment issue governing the constitutionality of the vehicle search.8 In Gant,

the state’s briefs on the merits thus focused entirely on that constitutional question and

did not suggest, much less argue as an alternative, that the good-faith exception would

warrant reversal.

8

The Supreme Court granted certiorari on the following question: “Does the Fourth Amendment

require law enforcement officers to demonstrate a threat to their safety or a need to preserve evidence

related to the crime of arrest in order to justify a warrantless vehicular search incident to arrest conducted

after the vehicle’s recent occupants have been arrested and secured?” Arizona v. Gant, 552 U.S. 1230

(2008). Therefore, the Court considered only whether the search violated the Fourth Amendment. See S.

Ct. R. 14.1(a); Yee v. Escondido, Cal., 503 U.S. 519, 535-36 (1992).

No. 09-5737 United States v. Buford Page 15

V.

The Supreme Court’s jurisprudence is clear: “Whether the exclusionary sanction

is appropriately imposed in a particular case . . . is ‘an issue separate from the question

whether the Fourth Amendment rights of the party seeking to invoke the rule were

violated by police conduct.’” Leon, 468 U.S. at 906 (quoting Illinois v. Gates, 462 U.S.

213, 223 (1983)); see also Masters, 614 F.3d at 242 (“[T]he Supreme Court has . . .

emphasized that the decision to exclude evidence is divorced from whether a Fourth

Amendment violation occurred.”). The latter was decided by Gant; the former was not.

Thus, “[t]he issue before us . . . is not whether the Court’s ruling in Gant applies to this

case, it is instead a question of the proper remedy upon application of Gant to this

case.’” McCane, 573 F.3d at 1044 n.5. That remedy is governed by the Supreme

Court’s decisions in Leon, Evans, Krull, and Herring.

When this case is properly viewed in that context, it is apparent that suppression

is not warranted. Although the Supreme Court has not yet directly addressed the

question presently before this court, its review of comparable issues is instructive. In

Leon, the Court declined to require suppression when an officer reasonably relied on an

invalid warrant to conduct the search because “[p]enalizing the officer for the [court’s]

error, rather than his own, cannot logically contribute to the deterrence of Fourth

Amendment violations.” 468 U.S. at 920-21. The same holding applies when an officer

relies on a statute later declared invalid, Krull, 480 U.S. 340, 359-60; on judicial records

that erroneously reflect an outstanding warrant, Evans, 514 U.S. at 14-16; or on the

police’s own warrant database that, through police negligence, erroneously contains a

withdrawn warrant. Herring, 129 S. Ct. at 704.

Applying the governing legal principles of these decisions to the facts of the case

before us, we join the Fifth, Tenth, and Eleventh Circuits in holding that exclusion is not

the appropriate remedy when an officer reasonably relies on a United States Court of

Appeals’ well-settled precedent prior to a change of that law.9 See Peltier, 422 U.S. at

9

Like the Eleventh Circuit, we also “stress, however, that our precedent on a given point must

be unequivocal before we will suspend the exclusionary rule’s operation.” Davis, 598 F.3d at 1266.

No. 09-5737 United States v. Buford Page 16

542 (“[U]nless we are to hold that parties may not reasonably rely upon any legal

pronouncement emanating from sources other than this Court, we cannot regard as

blameworthy those parties who conform their conduct to the prevailing statutory or

constitutional norm.”). The fact that appellate precedent is later overturned is not

enough to justify suppression, since the “exclusionary rule is designed to deter police

misconduct rather than to punish the errors of judges[,]” Leon, 468 U.S. at 916, and there

is “no meaningful distinction” between relying on an invalid search warrant issued by

a court and relying on settled precedent that, at the time of the search, held such

warrantless searches to be lawful.10 Davis, 598 F.3d at 1266.

We therefore hold that the district court erred in granting Buford’s motion to

suppress. A police officer who reasonably relies on settled circuit precedent that

authorizes the search of a vehicle acts in objective good faith. That remains true even

if a higher court later overrules the settled interpretation of the law and finds a violation.

The question then becomes a remedial one: Should the evidence be suppressed? Under

the reasoning of the Supreme Court’s decisions, the answer is no. Suppression of the

fruits of the search of Buford’s vehicle in light of a subsequent change in the law would

not serve the purpose of the exclusionary rule, which is “to deter deliberate, reckless, or

grossly negligent conduct, or in some circumstances recurring or systemic negligence.”

Herring, 129 S. Ct. at 702. Here, the deterrent benefit, if any, against unlawful police

conduct, is outweighed by its costs. Id. at 700-01. Thus, the judicially-created

exclusionary rule does not apply and suppression is not warranted.

VI.

For these reasons, we reverse the district court’s order granting Buford’s motion

to suppress and remand for further proceedings consistent with this opinion.

10

Gant itself underscored the reasonableness of an officer’s reliance on settled law, even if that

law is later overturned. The Court noted that qualified immunity will shield officers from liability in civil

suits challenging unconstitutional vehicle searches conducted before Gant because such officers acted in

“reasonable reliance” on the then-prevailing and “widely accepted” understanding of Belton. 129 S. Ct.

at 1722 n.11. That observation directly supports the conclusion that the good-faith exception to the

exclusionary rule applies in criminal prosecutions because the qualified immunity test turns on the same

standard of reasonableness as the good-faith exception. See Groh v. Ramirez, 540 U.S. 551, 565 n.8

(2004) (citing Malley v. Briggs, 475 U.S. 335, 344 (1986)); see also Davis, 598 F.3d at 1264 n.4.