United States v. Gonzalez

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30098
Plaintiff-Appellee, D.C. No.
v. CR-06-02112-EFS
RICARDO GONZALEZ,  Eastern District of
Defendant-Appellant. Washington,
Spokane

 ORDER

Filed March 16, 2010

Before: Betty B. Fletcher, Richard A. Paez, and
N. Randy Smith, Circuit Judges.

Order;
Concurrence by Judge B. Fletcher;
Dissent by Judge Bea

ORDER

The panel has voted to deny the Petition for Rehearing.
Judges Paez and N.R. Smith have voted to deny the Petition
for Rehearing En Banc, and Judge B. Fletcher has so recom-
mended.

The full court was advised of the petition for rehearing en
banc. A judge requested a vote on whether to hear the matter
en banc. The matter failed to receive a majority of the votes
of the nonrecused active judges in favor of en banc consider-
ation. See Fed. R. App. P. 35.

The petition for rehearing and the petition for rehearing en
banc are DENIED.
4323
4324 UNITED STATES v. GONZALEZ
B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges,
concurring in the denial of rehearing en banc:

Judge Bea’s dissent presents a distorted view of what this
case is all about. It requires a response that can be part of the
public record. Otherwise our panel’s reasoned response to the
en banc call would remain hidden from public view.

At the time of our original disposition, the Supreme Court
had not decided Arizona v. Gant, 129 S. Ct. 1710 (2009). Our
circuit interpreted New York v. Belton, 453 U.S. 454 (1981),
to allow law enforcement to search the passenger compart-
ment of a vehicle so long as the search was “roughly contem-
poraneous with the arrest” of the vehicle’s occupant. United
States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (cita-
tion and quotation marks omitted). Accordingly, our panel in
its original disposition concluded that the search of Defendant
Gonzalez’s vehicle did not violate the Fourth Amendment.

While Gonzalez’s petition for certiorari was pending, the
Supreme Court decided Gant, holding that a number of state
and federal courts, including ours, had improperly interpreted
Belton. Far from announcing a new rule and overruling Bel-
ton, the Court explained that our precedent had misinterpreted
Belton by ignoring that Belton is the progeny of Chimel v.
California, 395 U.S. 752 (1969). We had “untether[ed]” Bel-
ton “from the justifications underlying the Chimel exception,”
which allows searches incident to lawful arrests, but limits
those searches solely to “the arrestee’s person and the area . . .
within which he might gain possession of a weapon or
destructible evidence” at the time of the search. Gant, 129 S.
Ct. at 1716, 1719 (citation and quotation marks omitted).

The Supreme Court granted Gonzalez’s certiorari petition,
vacated our panel’s decision, and remanded to us “for further
consideration in light of Arizona v. Gant.” Quintana v. United
States, 129 S. Ct. 2156 (2009) (citation omitted). In our deci-
sion on remand, we faithfully followed its instructions. We
 UNITED STATES v. GONZALEZ 4325
applied Gant consistent with the Supreme Court’s precedents
on the application of the exclusionary rule and on retroactiv-
ity. See United States v. Gonzalez, 578 F.3d 1130 (9th Cir.
2009).

Judge Bea’s bold pronouncement that we disregarded Her-
ring v. United States, 129 S. Ct. 695 (2009), and Illinois v.
Krull, 480 U.S. 340 (1987), is wrong.

Indeed, we followed the teaching of the Herring Court that
“the benefits of deterrence must outweigh the costs.” 129 S.
Ct. at 700. In Gant, the Court decided that in cases such as
Gonzalez, the benefits of deterrence do outweigh the costs. It
held that where, as in Gant, “it is clear that a [law enforce-
ment] practice is unlawful, individuals’ interest in its discon-
tinuance clearly outweighs any law enforcement ‘entitlement’
to its persistence.” Gant, 129 S. Ct. at 1723. Because the
unconstitutionality of the searches in Gant and this case was
“clear,” the searches never should have occurred. They were
unlawful ab initio. As a consequence, Gant held that deter-
rence of such searches trumps the costs of exclusion. Judge
Bea’s argument in support of the dissenters in Gant is to no
avail. Let him disagree with the Supreme Court, if he must,
but not with our adherence to the Court’s dictates.

Krull, for its part, is inapposite. It concerns law enforce-
ment’s reliance on a statute and not the interpretation of case
law. The controlling authority for this case was United States
v. Johnson, 457 U.S. 537 (1982), not Krull as advocated by
Judge Bea. The panel correctly followed Johnson.

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 offi-
cers who conducted the search are entitled to qualified immu-
nity. The rights of the defendant, not those of the police, are
at issue. The dissent persists in its view that discipline of
police is at issue rather than individual rights. See Dissent at
4326 UNITED STATES v. GONZALEZ
4347-48 (“Here, the panel confuses the retroactive application
of a Supreme Court decision in the area of individual rights
(a jury picked without racial motivation) with what is an area
of societal rights (suppression of evidence to discipline
police).”).

I

The precedents that controlled our decision in Gonzalez
were those dealing with retroactivity. All agree that when
Gant was decided, defendant Gonzalez’s conviction had not
yet become final. All agree that under Gant, the search in our
case was unconstitutional. Looking to the Supreme Court’s
precedents on retroactivity, we applied Gant, holding that the
search was unconstitutional and that the evidence seized
should be suppressed.

When the Supreme Court clarifies the boundaries of a con-
stitutional search in one case, in fairness, that clarification
must be consistently applied to all cases that are not yet final.
That policy was applied in Johnson, 457 U.S. 537, and Grif-
fith v. Kentucky, 479 U.S. 314 (1987).

The question in Johnson was whether Payton v. New York,
445 U.S. 573 (1980), should be applied retroactively to
exclude evidence in cases pending on direct appeal. The gov-
ernment argued that the exclusionary rule should not apply to
evidence seized in good-faith reliance on pre-Payton law. We
quote the Court’s rejection of that argument:

The Government [relies] on [United States v.] Pel-
tier’s broad language: “If the purpose of the exclu-
sionary rule is to deter unlawful police conduct then
evidence obtained from a search should be sup-
pressed only if it can be said that the law enforce-
ment officer had knowledge, or may properly be
charged with knowledge, that the search was uncon-
stitutional under the Fourth Amendment” (emphasis
 UNITED STATES v. GONZALEZ 4327
added). The Government reads this language to
require that new Fourth Amendment rules must be
denied retroactive effect in all cases except those in
which law enforcement officers failed to act in good-
faith compliance with then-prevailing constitutional
norms.

. . . Under the Government’s theory, because the
state of Fourth Amendment law regarding warrant-
less home arrests was “unsettled” before Payton, that
ruling should not apply retroactively even to cases
pending on direct appeal when Payton was decided.

Yet the Government’s reading of Peltier would
reduce its own “retroactivity test” to an absurdity.
Under this view, the only Fourth Amendment rulings
worthy of retroactive application are those in which
the arresting officers violated pre-existing guidelines
clearly established by prior cases. But as we have
seen above, cases involving simple application of
clear, pre-existing Fourth Amendment guidelines
raise no real questions of retroactivity at all. Literally
read, the Government’s theory would automatically
eliminate all Fourth Amendment rulings from con-
sideration for retroactive application.

The Government’s [next] claim is that Peltier’s
logic suggests that retroactive application of Fourth
Amendment decisions like Payton even to cases
pending on direct review—would not serve the poli-
cies underlying the exclusionary rule. . . .

....

If, as the Government argues, all rulings resolving
unsettled Fourth Amendment questions should be
nonretroactive, then, in close cases, law enforcement
officials would have little incentive to err on the side
4328 UNITED STATES v. GONZALEZ
of constitutional behavior. Official awareness of the
dubious constitutionality of a practice would be
counterbalanced by official certainty that, so long as
the Fourth Amendment law in the area remained
unsettled, evidence obtained through the question-
able practice would be excluded only in the one case
definitively resolving the unsettled question. Failure
to accord any retroactive effect to Fourth Amend-
ment rulings would “encourage police or other
courts to disregard the plain purport of our decisions
and to adopt a let’s-wait-until-it’s-decided
approach.”

457 U.S. at 559-61 (citations omitted). Like Payton, Gant
clarified a point of law that the Court had not yet explicitly
addressed: the scope of the Court’s holding in Belton. Com-
pare State v. Gant, 162 P.3d 640, 645 (Ariz. 2007) (majority
opinion) (“We do not . . . read Belton or Thornton as aban-
doning the Chimel justifications for the search incident to
arrest exception.”), with id. at 647 (Bales, J., dissenting)
(“The validity of a Belton search . . . clearly does not depend
on the presence of the Chimel rationales in a particular
case.”). As does Judge Bea, the United States in Johnson
argued that excluding evidence seized in violation of Payton
would not appreciably deter police misconduct. That argu-
ment was made, and the Johnson Court firmly rejected it; our
panel was compelled to do so also.

Griffith—which was decided after the Supreme Court rec-
ognized the good-faith exception in United States v. Leon,
468 U.S. 897 (1984)—reaffirmed Johnson’s “holding that
‘subject to [certain exceptions], a decision of this Court con-
struing the Fourth Amendment is to be applied retroactively
to all convictions that were not yet final at the time the deci-
sion was rendered.’ ” 479 U.S. at 324 (quoting Johnson, 457
U.S. at 562). Like Johnson, it explicitly considered and
rejected “ ‘reliance by law enforcement authorities on the old
standards’ ” as a reason not to apply a Fourth Amendment
 UNITED STATES v. GONZALEZ 4329
decision retroactively. Id. at 324-25 (quoting Johnson, 457
U.S. at 549). Johnson and Griffith compel the result the panel
reached.

Judge Bea relies on United States v. Peltier, 422 U.S. 531
(1975), which declined to apply Almeida-Sanchez v. United
States, 413 U.S. 266 (1973), retrospectively. In light of John-
son, we think his reliance misplaced. The Johnson Court
made clear that Peltier’s holding applied only to cases that
“work[ed] a sharp break in the web of the law.” 457 U.S. at
551 (citation and quotation marks omitted). The Gant major-
ity stated that its holding worked no such break. See Gant,
129 S. Ct. at 1719, 1722 & n.9 (reasoning that holding fol-
lowed straightforwardly from Chimel and that the facts of
Belton and Thornton v. United States, 541 U.S. 615 (2004),
were “easily distinguished”). In arguing otherwise, Judge Bea
sides with the Gant dissenters. See id. at 1726 (Alito, J., dis-
senting) (contending that majority’s holding created a “new
rule”).

Judge Bea also relies on Krull to argue against the exclu-
sion of evidence in this case. Krull dealt with law enforce-
ment reliance on a statute, which like most statutes, carries the
presumption of constitutionality. 480 U.S. at 342. Here, by
contrast, law enforcement relied on a misapplication of Belton
that Gant deemed “clear[ly]” unconstitutional; Belton, when
properly interpreted, would counsel all along that the searches
in Gant and Gonzalez were unconstitutional. Gant, 129 S. Ct.
at 1723.

More fundamentally, the fact remains that when the
Supreme Court in Johnson was faced with precisely the ques-
tion that confronted our panel, it held that the exclusionary
rule applied to cases pending on direct appeal. Johnson
directly controls. Until such time as the Court were to over-
rule Johnson, it is Johnson and not Krull that we must follow.
4330 UNITED STATES v. GONZALEZ
II

The panel’s decision is directly supported by Gant itself. In
Gant, the Supreme Court interpreted Belton, 453 U.S. 454, to
allow a vehicle search incident to an arrest of the vehicle’s
occupant only where 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.” Gant, 129 S. Ct. at 1723. This holding
prompted a vigorous dissent:

The Belton rule has been taught to police officers for
more than a quarter century. Many searches—almost
certainly including more than a few that figure in
cases now on appeal—were conducted in scrupulous
reliance on that precedent. It is likely that, on the
very day when this opinion is announced, numerous
vehicle searches will be conducted in good faith by
police officers who were taught the Belton rule.

Id. at 1728 (Alito, J., dissenting).

The majority, however, did

not agree with the contention in Justice Alito’s dis-
sent . . . that consideration of police reliance interests
requires a different result. Although it appears that
the State’s reading of Belton has been widely taught
in police academies and that law enforcement offi-
cers have relied on the rule in conducting vehicle
searches during the past 28 years, many of these
searches were not justified by the reasons underlying
the [search-incident-to-arrest] exception. . . . The
fact that the law enforcement community may view
the State’s version of the Belton rule as an entitle-
ment does not establish the sort of reliance interest
that could outweigh the countervailing interest that
all individuals share in having their constitutional
 UNITED STATES v. GONZALEZ 4331
rights protected. If it is clear that a practice is unlaw-
ful, individuals’ interest in its discontinuance clearly
outweighs any law enforcement “entitlement” to its
persistence.

Id. at 1722-23 (footnote omitted). The Gant majority ruled as
it did precisely because the “interest that all individuals share
in having their constitutional rights protected” outweighs
good-faith “police reliance interests.” In short, the Supreme
Court has already decided that in a case such as ours, “the
benefits” of the exclusionary rule “outweigh the costs.” Her-
ring, 129 S. Ct. at 700.

It is no answer to say, as does Judge Bea, that the majority
and the dissent were arguing about stare decisis and not deter-
rence of “clear[ly] . . . unlawful” searches. Gant, 129 S. Ct.
at 1723. The majority expressly stated that it was not overrul-
ing Belton, see id. at 1722 n.9, and thus it also implicitly rec-
ognized that the doctrine of stare decisis had little, if any,
force in Gant. See id. at 1722 (“[W]e would be particularly
loath to uphold an unconstitutional result in a case that is so
easily distinguished from the decisions that arguably compel
it. . . . It is thus unsurprising that Members of this Court who
concurred in the judgments in Belton and Thornton also con-
cur in the decision in this case.”). The flash point of disagree-
ment between the majority and dissent in Gant was not so
much stare decisis as “police reliance interests.” See id. at
1722-23. Justice Alito’s concern about “the suppression of
evidence gathered in many searches carried out in good-faith
reliance on well-settled case law,” id. at 1726 (Alito, J., dis-
senting) (emphasis added), demonstrates that Gant was about
suppression of evidence and not just the constitutionality of
the search.

That the majority and dissenting opinions should have
clashed over the exclusionary rule is not surprising, for in
Gant, the Arizona Supreme Court had not simply declared the
search unconstitutional, but had also ordered the exclusion of
4332 UNITED STATES v. GONZALEZ
the evidence. State v. Gant, 162 P.3d at 646. By affirming the
Arizona Supreme Court, the Court necessarily affirmed the
exclusion of the evidence.

III

The panel’s decision is compelled by the Supreme Court’s
retroactivity precedents and dictated by Gant. The court was
right to deny en banc rehearing.

Judge BEA, with whom O’SCANNLAIN, KLEINFELD,
GOULD, TALLMAN, BYBEE, and CALLAHAN, Circuit
Judges, join, dissenting from denial of rehearing en banc:

I dissent from our denial of the petition for rehearing en
banc, first, because the panel’s decision disregards the
Supreme Court’s decisions in Herring v. United States, ___
U.S. ___, 129 S. Ct. 695, 700 (2009), and Illinois v. Krull,
480 U.S. 340 (1987), regarding when police misconduct justi-
fies suppression of relevant evidence in a criminal trial, and
second, because the panel’s decision creates a split among the
circuits. See United States v. McCane, 573 F.3d 1037 (10th
Cir. 2009), cert. denied, 78 U.S.L.W. 3221 (U.S. Mar. 1,
2010) (No. 09-402); United States v. Jackson, 825 F.2d 853
(5th Cir. 1987) (en banc).

I. Introduction

The panel has decided that evidence seized by a police offi-
cer acting in good faith reliance on the predominant interpre-
tation of Supreme Court precedent should be suppressed,
despite the fact that suppression in this case cannot conceiv-
ably result in appreciable deterrence of future police miscon-
duct. How does it deter police misconduct in the future to tell
the police: “the evidence you seized legally, under the law,
cannot be used because the law has changed, and now, what
 UNITED STATES v. GONZALEZ 4333
wasn’t misconduct at the time you acted has become miscon-
duct”? The attentive policeman hearing this might well look
blankly and ask: “Who knew? Am I supposed to guess? What
am I supposed to do next time? Not follow the law as written
by the Ninth Circuit, but hold back a little? How much?”

The panel’s decision is in direct conflict with the Supreme
Court’s recent holding in Herring v. United States: “[T]he
exclusionary rule is not an individual right and applies only
where it results in appreciable deterrence [of police miscon-
duct].” 129 S. Ct. at 700 (quotation marks and alterations
omitted). Because the sole justification—up until now—for
exclusion of relevant evidence improperly seized has been to
deter future police misconduct,1 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”). See Krull, 480 U.S. 340 (statutes),
United States v. Leon, 468 U.S. 897 (1984) (warrants). Here,
the police officer relied on a different kind of authority,
namely the settled case law under New York v. Belton, 453
U.S. 454, 460 (1981); see also United States v. Weaver, 433
F.3d 1104, 1106 (9th Cir. 2006) (our circuit’s adoption of
Belton).

Officer Garcia lawfully stopped a vehicle with four occu-
pants. Defendant Gonzalez was riding as a passenger in the
vehicle. After the vehicle was apparently secure against any
risk to the officer, and the vehicle’s occupants had moved
away from the vehicle, Officer Garcia searched the vehicle
and discovered Gonzalez’s 9mm pistol in the glove compart-
1
Justice Ginsburg, in her dissent in Herring, offered alternative justifi-
cations for applying the exclusionary rule, but those justifications have not
been adopted by the Supreme Court. See 129 S. Ct. at 707-08 (Ginsburg,
J., dissenting). Since the panel did not rest its decision on any of Justice
Ginsburg’s thoughts, they need not here be discussed.
4334 UNITED STATES v. GONZALEZ
ment. It is undisputed that, at the time of the search, Officer
Garcia was acting in the good faith belief that the law—the
predominant interpretation of Belton—allowed him to make
that search.

Defendant Gonzalez moved at trial to suppress evidence of
the 9mm pistol that Officer Garcia seized during his search of
the vehicle. The district court denied the motion to suppress;
we affirmed.

The Supreme Court then announced its decision in Arizona
v. Gant, 129 S. Ct. 1710 (2009), which held such searches
unconstitutional. The Court vacated our opinion in the instant
case and remanded it back to us with the instruction to con-
sider the case in light of its ruling in Gant. Note that the Court
did not reach the same result in this case as it had in Gant,
where it upheld suppression of the evidence. It vacated and
remanded; it did not order the lower courts to suppress the
evidence of Gonzalez’s possession of the 9mm pistol.

On remand following the Supreme Court’s decision in
Gant, the panel correctly held that the search was unconstitu-
tional but, I believe, incorrectly held that the good faith
exception did not apply, and therefore ordered the evidence
suppressed.

To reach its result in favor of suppression, the panel holds
that a police officer’s reliance on settled case law is somehow
different from a police officer’s reliance on a reasonable war-
rant (Leon) or statute (Krull). But, the panel does not explain
either in its opinion or its concurrence from the order denying
rehearing en banc, and I can fathom no possible reason, why
it found a difference between a rule applicable to a magis-
trate’s warrant, later found inadequate (Leon), or a statute
later found to be unconstitutional (Krull), and circuit court
case law, later found to no longer allow the search in question
(Gant). It is not misconduct for the police to rely on a reason-
able warrant even if the warrant was later held invalid. Leon,
 UNITED STATES v. GONZALEZ 4335
468 U.S. at 922. Nor was it misconduct for the police to rely
on a reasonable statute, even if the statute is later held uncon-
stitutional. Krull, 480 U.S. at 361. We should encourage our
officers to act within the bounds of the law as defined by
magistrates and legislatures. United States v. Peltier, 422 U.S.
531, 542 (1975). Why then should we make police actions
futile when those actions are fully in accord with the settled
decisions of our courts when the actions are taken? I submit
we should not.

The Supreme Court, moreover, has already said so:
“[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 par-
ties who conform their conduct to the prevailing statutory or
constitutional norm.” Peltier, 422 U.S. at 542. There is no dis-
pute that, before the Supreme Court decided Gant, the
prevailing—even predominant—constitutional norm under
Belton—as applied in this Circuit by Weaver—was to permit
searches of vehicles, including glove compartments, even if
the defendant or suspect was not within arm’s reach of the
vehicle and the contents of the vehicle could not reasonably
present a risk to the arresting officer. There was nothing
blameworthy, and certainly nothing flagrant, about what Offi-
cer Garcia did. See Herring, 129 S. Ct. at 702 (holding that
the exclusionary rule arose from “flagrant and deliberate” vio-
lations of rights). I am at a loss to grasp how suppression of
the evidence Officer Garcia discovered while properly doing
his job, within the boundaries set by the law as it then existed,
will deter other police officers from violating other individu-
als’ Fourth Amendment rights.

Suppose that at the next opportunity to consider the matter,
the Court were to determine that automobile stops on objec-
tively reasonable bases—e.g., expired license plate registra-
tion tags, burnt out rear lights, etc.—but actually motivated by
police officers’ desire to investigate the cars’ occupants and
interiors, were no longer constitutionally valid, thereby over-
4336 UNITED STATES v. GONZALEZ
ruling Whren v. United States, 517 U.S. 806 (1996). Routine
traffic stops and other searches permitted under Whren have
become a staple in law enforcement’s arsenal of crime-
fighting tools. Would all the many pending cases founded on
evidence retrieved in such searches be subject to reversal?
That is precisely the principle which is being adopted by the
panel’s decision.

The predictable effect of the panel’s decision will be to
undermine police officers’ ability to catch and prosecute crim-
inals. First, the panel’s decision will deprive prosecutors of
inculpatory evidence supporting numerous prosecutions and
convictions of criminals whose cases were pending at the time
Gant was decided. As the Government contended in its peti-
tion for rehearing en banc: “[I]t is important to recognize that
Belton searches were a fixture in law enforcement prior to
Gant. The panel’s decision thus has the potential to disrupt
numerous convictions and ongoing prosecutions that rely on
evidence obtained in Belton searches conducted consistent
with the decisions of this Court.” Second, the panel’s opinion
will generate ongoing uncertainty among police officers about
their ability to follow the decisions of this court, or even the
Supreme Court, without finding that their work has been for
nought. This uncertainty will most likely cause police officers
to act overly cautious in pursuing criminals, thus endangering
public safety. But it may also have the perverse effect of so
frustrating police officers that they may simply ignore our
case law, in the hope it may have changed by time of trial and
appeal. This result would not only endanger public safety by
increasing the amount of evidence the courts will suppress,
but would also endanger the public’s Fourth Amendment
rights.

If there is a silver lining to the panel’s decision to flout
Supreme Court case law in Herring and Krull, it is that the
panel has set the stage for the Supreme Court to review the
scope of the exclusionary rule in light of the circuit split we
have now created. The panel’s opinion reaches a conclusion
 UNITED STATES v. GONZALEZ 4337
directly contrary to that of McCane, 573 F.3d 1037, which
held the good faith exception applies to searches held uncon-
stitutional in Gant. The opinion is also in direct conflict with
Jackson, 825 F.2d 853, which held the good faith exception
applied to warrantless searches conducted near the border
when, at the time the searches took place, they were valid
under Fifth Circuit cases that were later overruled by that Cir-
cuit.

For these reasons, I respectfully dissent from the denial of
rehearing en banc.

II. Factual and Procedural Background

Officer Garcia lawfully stopped a vehicle with four occu-
pants. One of the passengers, Silviano Rivera, had several
outstanding warrants for his arrest. Garcia placed Rivera in
custody and the other passengers exited the vehicle. Officer
Garcia searched the vehicle and discovered a loaded 9mm pis-
tol in the unlocked glove compartment. The two female occu-
pants of the vehicle told Garcia the firearm belonged to the
fourth occupant, defendant Ricardo Gonzalez. Gonzalez was
arrested and charged with being a felon in possession of a
firearm. At trial, Gonzalez moved to suppress the evidence
discovered during the officer’s search. The district court
denied the motion. A jury found Gonzalez guilty of the fire-
arm possession charge, and he was sentenced to 70 months’
imprisonment.

Gonzalez appealed his conviction and sentence, contending
in part that the district court erred in denying his motion to
suppress. The panel affirmed, holding the search was lawful
under Belton, 453 U.S. at 460, and Weaver, 433 F.3d at 1106.

The Supreme Court then decided Arizona v. Gant, 129 S.
Ct. 1710 (2009), which expressly narrowed the predominant
interpretation of Belton by circuit courts, holding a search of
a vehicle incident to arrest may include the passenger com-
4338 UNITED STATES v. GONZALEZ
partment only if the “arrestee is unsecured or within reaching
distance of the passenger compartment at the time of the
search,” id. at 1719, or “when it is reasonable to believe that
evidence of the offense of arrest might be found in the vehi-
cle,” id. at 1714. The Supreme Court vacated the panel’s deci-
sion in light of Gant. Quintana v. United States, 129 S. Ct.
2156 (2009). The Court did not reverse with instructions to
enter a judgment of acquittal for Gonzalez nor did it order the
lower courts to effect a suppression of the evidence.

On remand, the government conceded the search was
unconstitutional under Gant. United States v. Gonzalez, 578
F.3d 1130, 1132 (9th Cir. 2009). The government contended,
however, that this Circuit should affirm the district court’s
order denying Gonzalez’s motion to suppress because the
officer conducting the search did so in good faith reliance on
then-prevailing Supreme Court and Ninth Circuit precedent.
There is no dispute that the officer was acting in good faith
at the time of the search.

III. The Fourth Amendment, the Exclusionary Rule, and
the Good Faith Exception.

Although it is undisputed here that the search turned out to
be unconstitutional under Gant, finding the search unconstitu-
tional does not automatically invoke the exclusionary rule as
to the evidence unearthed by the search. As in Herring, the
finding of unconstitutionality is only the first step in a two
step analysis.

The second step is to decide whether such evidence should
be suppressed. Leon, 468 U.S. at 906 (“Whether the exclu-
sionary sanction is appropriately imposed in a particular case,
our decisions make clear, is an issue separate from the ques-
tion whether the Fourth Amendment rights of the party seek-
ing to invoke the rule were violated by police conduct.”
(quotation marks omitted)); see also Herring, 129 S. Ct. at
700 (“We have repeatedly rejected the argument that exclu-
 UNITED STATES v. GONZALEZ 4339
sion is a necessary consequence of a Fourth Amendment vio-
lation.”).

“When evidence is obtained in violation of the Fourth
Amendment, the judicially developed exclusionary rule usu-
ally precludes its use in a criminal proceeding against the vic-
tim of the illegal search and seizure.” Krull, 480 U.S. at 347.
But, the remedy of exclusion “has been restricted to those sit-
uations in which its remedial purpose is effectively
advanced.” Id. In Herring, the Supreme Court made clear that
for courts to suppress evidence “the benefits of deterrence
must outweigh the costs.” 129 S. Ct. at 700.

Suppressing evidence of Gonzalez’s firearm here would not
result in any appreciable deterrence of police misconduct. As
the Supreme Court explained in Peltier, there is nothing
wrong with police officers acting under the authority of set-
tled case law, including case law from courts other than the
Supreme Court. 422 U.S. at 542. If that law turns out to be
wrong, then it was the court that was at fault, not the police
officers. See id. Therefore, there is no benefit to suppressing
the evidence in this case. The cost of suppression, moreover,
is obvious; Gonzalez—a criminal convicted of being a felon
in possession of a firearm—goes free. On balance, there is
zero benefit and an obvious cost to suppressing the evidence.
The evidence should not be suppressed.

Although this cost-benefit calculation is an inherent com-
ponent of the exclusionary rule, the Supreme Court has
explained that when police officers act in good faith when
conducting a search, their objectively reasonable belief is suf-
ficient to show the balance tilts away from suppression. See
Herring, 129 S. Ct. at 701 (“We (perhaps confusingly) called
this objectively reasonable reliance ‘good faith.’ ”). Cases
articulating this “good faith exception” fall into two catego-
ries. The first category includes cases where there was some
error in the issuance of a warrant used to execute the search.
See Herring, 129 S. Ct. at 695 (holding that evidence should
4340 UNITED STATES v. GONZALEZ
not be suppressed where a county warrant clerk mistakenly
told officers there was an outstanding warrant on file for
defendant, but later discovered her error: the warrant had been
recalled before its use by the officers); Arizona v. Evans, 514
U.S. 1, 15 (1995) (holding that evidence should not be sup-
pressed where officers relied on a computer database which
showed the defendant had an outstanding arrest warrant, but
later learned a court clerk failed to update the database to
show the defendant’s warrant had been quashed); United
States v. Leon, 468 U.S. 897, 919-20 (1984) (holding that evi-
dence should not be suppressed where officers arrested and
searched defendant pursuant to a facially lawful warrant, but
a district judge later held the warrant lacked probable cause).
These cases are instructive because the Supreme Court has
repeatedly emphasized that the sole purpose of the exclusion-
ary rule is to deter future unlawful police searches.

It is, however, the second category of cases that is more rel-
evant here; this category includes cases where law enforce-
ment officers conduct a search under a statute that was later
determined unconstitutional. See Krull, 480 U.S. 340; Michi-
gan v. DeFillippo, 443 U.S. 31, 38 (1979).

In Krull, the State of Illinois appealed the trial court’s order
suppressing evidence discovered during an administrative
(i.e., warrantless) search pursuant to Illinois’s statutory
regime which regulated the sale of automobiles and automo-
bile parts. A police officer conducted an administrative search
of the records of an automobile wrecking yard and discovered
three stolen vehicles on the property. The following day, a
federal district court held the Illinois statute authorizing such
administrative searches was unconstitutional. The state trial
court agreed and ordered the evidence suppressed. The Illi-
nois Supreme Court affirmed, and the State appealed to the
U.S. Supreme Court.

The Supreme Court reversed, holding the good faith excep-
tion applied to searches conducted pursuant to a statute that
 UNITED STATES v. GONZALEZ 4341
was not “obvious[ly]” unconstitutional. 480 U.S. at 359. The
Court held: “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 359-60
(quotations omitted). “The application of the exclusionary
rule to suppress evidence obtained by an officer acting in
objectively reasonable reliance on a statute would have as lit-
tle deterrent effect on the officer’s actions as would the exclu-
sion of evidence when an officer acts in objectively
reasonable reliance on a warrant.” Id. at 349.

As the Court could discern no deterrent effect that suppres-
sion would have on officers, it turned to the question whether
suppression would deter legislators from enacting statutes that
ignored or subverted the Fourth Amendment. See id. at 351.
The Court held there was no evidence that suppression would
“act as a significant, additional deterrent.” Id. at 352. Hence,
the “substantial social cost” of excluding inculpatory evidence
against defendants—letting the guilty go free—outweighed
any incremental deterrent effect, which convinced the Court
that applying the exclusionary rule was unjustified. Id. at 352-
53; see also DeFillippo, 443 U.S. at 38 (“Police are charged
to enforce laws until and unless they are declared unconstitu-
tional . . . . Society would be ill-served if its police officers
took it upon themselves to determine which laws are and
which are not constitutionally entitled to enforcement.”).2

In McCane, 573 F.3d 1037 (10th Cir. 2009), the Tenth Cir-
cuit addressed the precise situation presented in Gonzalez; and
it held the good faith exception did apply. 573 F.3d at 1045.
A police officer stopped McCane on suspicion of driving on
a suspended license. The officer arrested McCane, handcuffed
2
Although decided before Leon and not using the good faith exception
language, DeFillippo denied suppression of evidence where the search
was executed under a local ordinance that was later found to be unconsti-
tutional. 443 U.S. at 40.
4342 UNITED STATES v. GONZALEZ
him, and placed him in the back of the patrol car. The officer
then searched McCane’s vehicle and discovered a firearm in
the pocket of the driver’s side door. McCane moved to sup-
press the evidence of the firearm. The district court held the
search was valid. While McCane’s appeal was pending, the
Supreme Court decided Gant. The Tenth Circuit held the
search was unconstitutional, but affirmed based on the good
faith exception to the exclusionary rule.

First, the Tenth Circuit held that its precedent was well-
settled that vehicle searches incident to arrest were lawful
under Belton, even if the arrestee was secured and offered no
danger to the arresting officer at the time of the search. The
court then held the good faith exception applied because sup-
pressing evidence discovered during a search that was consti-
tutional under settled law, as it existed at the time of the
search, would not deter law enforcement officers from con-
ducting unconstitutional searches. The exclusionary rule is
meant to “deter objectively unreasonable police conduct” and
“to deter misconduct by law enforcement officers, not other
entities.” McCane, 573 F.3d at 1044. Because “no deterrent
effect would result from suppressing the evidence seized from
McCane’s vehicle, the Tenth Circuit declined “to apply the
exclusionary rule when law enforcement officers act in objec-
tively reasonable reliance upon the settled case law of a
United States Court of Appeals.” Id. at 1045.

In Jackson, the defendants were all searched at a highway
checkpoint that prior Fifth Circuit cases had deemed a func-
tional equivalent of the border, thus excepting police searches
from the warrant requirement. Id. at 854-55. In an en banc
decision, the Fifth Circuit disapproved its earlier cases and
held the checkpoint was, indeed, not a border equivalent.
Warrantless and no-probable-cause searches could not there
be performed. Id. at 854. Nevertheless, the court affirmed the
defendants’ convictions, based on the evidence seized during
warrantless searches, because the “searches were conducted in
good faith reliance upon [the Fifth Circuit’s] earlier deci-
 UNITED STATES v. GONZALEZ 4343
sions.” Id. The court held “[t]he reasoning of Leon fully
applies to the case at hand.” Id. at 866. The court noted that
it had upheld searches at the checkpoint numerous times—
i.e., the law was well-settled—and that there was no sugges-
tion the Fifth Circuit was “inclined to ignore or subvert the
Fourth Amendment.” Id. (quoting Leon, 468 U.S. at 916).3

Despite these cases, the panel held the good faith exception
did not apply because Krull was limited to searches conducted
under statutory authority and did not extend to searches con-
ducted under well-settled case law precedent. Of course, Krull
dealt only with a statute-based search. The Court said nothing
about a search based on settled case law, nor that its holding
could not be extended to the latter. The panel provides a curi-
ous reason for its disregard of Krull; it chooses to follow a
pre-Leon case before the “good faith exception” was devel-
oped, Johnson, rather than a post-Leon “good faith exception”
case. But the panel gives no reason why we should treat our
decisions as lesser law under the good faith exception than
statutes or administrative regulations.

To clear away any confusion, the existence of a relevant
court case supporting an officer’s search does not automati-
cally prove he was acting in good faith where that case is later
overruled. A police officer must still prove that his reliance
was objectively reasonable. That problem, however, is no dif-
ferent from the problem law enforcement officers face when
deciding if a statute is obviously unconstitutional. See Krull,
480 U.S. at 355 (“Nor can a law enforcement officer be said
to have acted in good-faith reliance upon a statute if its provi-
sions are such that a reasonable officer should have known
that the statute was unconstitutional.”). And the same problem
recurs when law enforcement officers decide whether a “war-
rant was so facially deficient that the executing officers can-
not reasonably presume it to be valid.” Id. (quotation marks
3
I do not think this circuit is any more inclined to subvert the Fourth
Amendment than is the Fifth Circuit.
4344 UNITED STATES v. GONZALEZ
omitted). In this case, an objectively reasonable officer would
have no basis for suspecting the Ninth Circuit’s well-settled
interpretation of Belton was obviously unconstitutional. See
Weaver, 433 F.3d at 1106.

IV. Retroactivity Cases Do Not Apply Because Here the
Rule to Be Applied Retroactively (Gant) Does Not
Eliminate the Good Faith Exception (Leon, Krull)

Because the panel held that Krull, and the other cases
applying the good faith exception, did not control, the panel
instead relied on United States v. Johnson, 457 U.S. 537, 562
(1982), which held that “a decision of the 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.” See also Griffith v. Kentucky, 479 U.S. 314 (1987).4
To do otherwise would “violate the principle of treating simi-
larly situated defendants the same.” Gonzalez, 578 F.3d at
1132 (quoting Johnson, 457 U.S. at 555). Guided by that prin-
ciple, the panel held the firearm must be suppressed in Gonza-
lez because the cocaine was suppressed in Gant. In reaching
this conclusion, however, the panel ignores that Gant and
Gonzalez were not similarly situated in a crucial determinant:
The government did not raise the good faith exception in
Gant’s case, but it did in this case.

Therefore, it is simple to reconcile Johnson with Krull.
Johnson holds that defendants, whose cases are pending at the
time of a law-changing decision, should be entitled to invoke
4
In Griffith, the Court held that Batson v. Kentucky, 476 U.S. 79 (1986)
(holding a criminal defendant could establish a prima facie case of racial
discrimination based on the prosecution’s use of peremptory challenges to
strike members of the defendant’s race), applied retroactively to cases
pending when Batson was decided. The Court reemphasized that “selec-
tive application of new rules violates the principle of treating similarly sit-
uated defendants the same.” Id. at 323. Griffith held that even cases that
were a “clear break” from prior law were retroactive to pending cases. Id.
at 326-27.
 UNITED STATES v. GONZALEZ 4345
the new rule. Id. at 545. Gonzalez has invoked the new rule
announced in Gant and that rule does apply to his case; the
search of Gonzalez’s car, like the search of Gant’s car, was
unconstitutional. But, once Gonzalez has invoked the rule in
Gant, the Government is still entitled to invoke the good faith
exception, and it has done so here. Nothing in Gant eliminates
or narrows the good faith exception to the exclusionary rule
for the simple reason that the issue whether the good faith
exception applied was not raised nor reached in Gant.

Nothing in Gant suggests suppression is the necessary
result of invoking the new rule. There is no suggestion the
Arizona state prosecutors ever raised the good faith exception
before the U.S. or the Arizona Supreme Court. See Gant, 129
S. Ct. at 1723-24. The Arizona Supreme Court held: “The
State has advanced no alternative theories justifying the war-
rantless search of Gant’s car, and we note that no other excep-
tion to the warrant requirement appears to apply.” State v.
Gant, 162 P.3d 640, 646 (Ariz. 2007). The Arizona Supreme
Court then discussed the automobile exception, the plain view
exception, and the inventory search exception. Id. There is no
mention of the good faith exception in the Arizona Supreme
Court opinion. Nor is there any mention of the good faith
exception in the majority opinion in Gant.5

Unfortunately, the panel’s concurrence to the order denying
rehearing en banc takes the Supreme Court’s analysis of “po-
lice reliance interests” in Gant completely out of context.
First, reading Gant, it is not obvious that “police reliance
interests” have anything to do with police officers’ good faith
reliance on settled law. The Supreme Court did not define
“police reliance interests,” but, in context, those interests
5
Justice Alito, in his dissent, makes a passing reference to evidence
seized in good faith reliance on well-settled case law; he cautions Gant
will result in the suppression of such evidence, 129 S. Ct. at 1726, but he
does not explain why. Nor did the majority in Gant acknowledge that
argument.
4346 UNITED STATES v. GONZALEZ
appear to have more to do with the cost of retraining officers
than anything related to the good faith exception. See Gant,
129 S. Ct. at 1722-23. Second, Gant decided only that such
interests were insufficient to justify perpetuating the rule that
permitted unconstitutional searches in the future. Gant did not
balance the deterrent effect against the potential for over-
turned criminal convictions if evidence from prior searches is
suppressed. Id.

Moreover, Johnson is consistent with applying the good
faith exception in this case. The Court in Johnson argued that
suppressing evidence seized in a search conducted under “un-
settled” 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 offi-
cer’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 area of law was “unsettled” and that “[l]ong
before Payton [v. New York, 445 U.S. 573 (1980)], for exam-
ple, this Court had questioned the constitutionality of warrant-
less home arrests. Furthermore, the Court’s opinions
consistently had emphasized that, in light of the constitutional
protection traditionally accorded to the privacy of the home,
police officers should resolve any doubts regarding the valid-
ity 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. Peltier, 422 U.S. at 542. Here, there
is no question that the law governing the constitutionality of
Belton searches was settled, at the very least within our cir-
cuit. See Weaver, 433 F.3d at 1106. As the panel’s own opin-
 UNITED STATES v. GONZALEZ 4347
ion states, the scenario in this case is “a search conducted
under a then-prevailing interpretation of a Supreme Court rul-
ing.” Gonzalez, 578 F.3d at 1132 (emphasis added); see also
Gant, 129 S. Ct. at 1718 (finding the broad interpretation of
Belton “has predominated”).

It is clear the Johnson Court adopted the reasoning of Pel-
tier, approving of the underlying rationale behind the good
faith exception, when it held: “Peltier suggested only that
retroactive application of a Fourth Amendment ruling that
worked a ‘sharp break’ in the law, like Almeida-Sanchez,
would have little deterrent effect, because law enforcement
officers would rarely be deterred from engaging in a practice
they never expected to be invalidated.” Id. at 560.

It is in the retroactivity context that Griffith has apparently
confused the panel. Griffith held that the Supreme Court’s
decisions were retroactive as to pending appeals regardless
whether the decision worked a “sharp break” in the law. 479
U.S. at 327. But Griffith was about Batson challenges and
therefore about defendants’ Fourteenth Amendment rights—a
right held by the individual defendant. Id. at 316. A prosecu-
tor’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 bal-
ancing test issues central to the Court’s decision in Herring,
129 S. Ct. at 700. A defendant has a right to a jury chosen
without racial motivation regardless whether a reversal of a
conviction will teach prosecutors a lesson and deter similar
racially motivated conduct in the future. Here, the panel con-
fuses the retroactive application of a Supreme Court decision
in the area of individual rights (a jury picked without racial
motivation) with what is an area of societal rights (suppres-
sion of evidence to discipline police). Gant should have been
retroactively applied to Gonzalez’s case. And it was. Officer
Garcia’s search was held unconstitutional. But the remedy of
suppression of the evidence so seized is not compelled by
4348 UNITED STATES v. GONZALEZ
Gant. That remedy is governed by Leon, Krull, and Herring.
Those cases point firmly toward denying suppression.

If there is any support for the panel’s opinion it can be
found only in Justice O’Connor’s dissent in Krull. She wrote:
“I find the Court’s ruling in this case at right angles, if not
directly at odds, with the Court’s recent decision in Griffith.”
480 U.S. at 368. With all respect to Justice O’Connor, her
position did not carry the majority vote. Her dissent does,
however, cleanly frame the issue the panel decides today:
Does the good faith exception to the exclusionary rule apply
despite the Supreme Court’s retroactivity precedents? The
majority of the Supreme Court held that it does in Leon,
Krull, and Herring. The panel attempts to elide the issue by
asserting case law and statutes are distinct, but that is not only
a distinction without a difference in our system of branches of
government with equal rank between the legislatures and judi-
ciary, but is an assertion rejected in Peltier, a case by which
we are bound. What the panel actually does is follow Justice
O’Connor’s dissent rather than following Supreme Court law.

V. Conclusion

Under our Fourth Amendment jurisprudence, courts keep
vigil over police officers’ power to search and seize. The
panel treads over the line between vigilance and punishment.
Not only does the panel negate the dutiful—at the time done
—investigatory work of Officer Garcia and all similarly situ-
ated officers, but it hamstrings all police officers, who must
now worry that every search they conduct under permissible
circumstances—remember Whren—may later be rendered
worthless by a change in the law as found by a later court, no
matter how foreseeable or not. We should not put the police
in the business of foreseeing how courts will change their
views of the Fourth Amendment. We should expect them to
follow the law, and when doing so, to be able to use the evi-
dence so procured.