DAVIS v. UNITED STATES

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
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SUPREME COURT OF THE UNITED STATES
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No. 09–11328

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WILLIE GENE DAVIS, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 16, 2011]

JUSTICE ALITO delivered the opinion of the Court.

The Fourth Amendment protects the right to be free from “unreasonable searches and seizures,” but it is silent about how this right is to be enforced. To supplement the bare text, this Court created the exclusionary rule, a deterrent sanction that bars the prosecution from introducing evidence obtained by way of a Fourth Amendment violation. The question here is whether to apply this sanction when the police conduct a search in compliance with binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.

I

The question presented arises in this case as a result of a shift in our Fourth Amendment jurisprudence on searches of automobiles incident to arrests of recent occupants. A

Under this Court’s decision in Chimel v. California, 395 U. S. 752 (1969), a police officer who makes a lawful arrest may conduct a warrantless search of the arrestee’s person and the area “within his immediate control.” Id., at 763 (internal quotation marks omitted). This rule “may be stated clearly enough,” but in the early going after Chimel it proved difficult to apply, particularly in cases that involved searches “inside [of] automobile[s] after the arrestees [we]re no longer in [them].” See New York v. Belton, 453 U. S. 454, 458–459 (1981). A number of courts upheld the constitutionality of vehicle searches that were “substantially contemporaneous” with occupants’ arrests.1 Other courts disapproved of automobile searches incident to arrests, at least absent some continuing threat that the arrestee might gain access to the vehicle and “destroy evidence or grab a weapon.”2 In New York v. Belton, this Court granted certiorari to resolve the conflict. See id., at 459–460.

In Belton, a police officer conducting a traffic stop lawfully arrested four occupants of a vehicle and ordered the arrestees to line up, un-handcuffed, along the side of the thruway. Id., at 456; see Brief for Petitioner in New York v. Belton, O. T. 1980, No. 80–328, p. 3. The officer then searched the vehicle’s passenger compartment and found cocaine inside a jacket that lay on the backseat. Belton, 453 U. S., at 456. This Court upheld the search as reasonable incident to the occupants’ arrests. In an opinion that repeatedly stressed the need for a “straightforward,” “workable rule” to guide police conduct, the Court announced “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 459–460 (footnote omitted).

For years, Belton was widely understood to have set down a simple, bright-line rule. Numerous courts read the decision to authorize automobile searches incident to arrests of recent occupants, regardless of whether the arrestee in any particular case was within reaching distance of the vehicle at the time of the search. See Thornton v. United States, 541 U. S. 615, 628 (2004) (SCALIA, J., concurring in judgment) (collecting cases). Even after the arrestee had stepped out of the vehicle and had been subdued by police, the prevailing understanding was that Belton still authorized a substantially contemporaneous search of the automobile’s passenger compartment.3

Not every court, however, agreed with this reading of Belton. In State v. Gant, 216 Ariz. 1, 162 P. 3d 640 (2007), the Arizona Supreme Court considered an automobile search conducted after the vehicle’s occupant had been arrested, handcuffed, and locked in a patrol car. The court distinguished Belton as a case in which “four unsecured” arrestees “presented an immediate risk of loss of evidence and an obvious threat to [a] lone officer’s safety.” 216 Ariz., at 4, 162 P. 3d, at 643. The court held that where no such “exigencies exis[t]”—where the arrestee has been subdued and the scene secured—the rule of Belton does not apply. 216 Ariz., at 4, 162 P. 3d, at 643.

This Court granted certiorari in Gant, see 552 U. S. 1230 (2008), and affirmed in a 5-to-4 decision. Arizona v. Gant, 556 U. S. ___ (2009). Four of the Justices in the majority agreed with the Arizona Supreme Court that Belton’s holding applies only where “the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” 556 U. S., at ___ (slip op., at 10). The four dissenting Justices, by contrast, understood Belton to have explicitly adopted the simple, bright-line rule stated in the Belton Court’s opinion. 556 U. S., at ___ (opinion of ALITO, J.) (slip op., at 3); see Belton, 453 U. S., at 460 (“[W]e hold 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” (footnote omitted)). To limit Belton to cases involving unsecured arrestees, the dissenters thought, was to overrule the decision’s clear holding. Gant, supra, at ___ (slip op., at 2–3). JUSTICE SCALIA, who provided the fifth vote to affirm in Gant, agreed with the dissenters’ understanding of Beltonrsquo;s holding. 556 U. S., at ___ (slip op., at 1–2) (concurring opinion). JUSTICE SCALIA favored a more explicit and complete overruling of Belton, but he joined what became the majority opinion to avoid “a 4-to-1-to-4” disposition. 556 U. S., at ___ (slip op., at 2–4). As a result, the Court adopted a new, two-part rule under which an automobile search incident to a recent occupant’s arrest is constitutional (1) if the arrestee is within reaching distance of the vehicle during the search, or (2) if the police have reason to believe that the vehicle contains “evidence relevant to the crime of arrest.” Id., at ___ (slip op., at 9– 10) (citing Thornton, supra, at 632 (SCALIA, J., concurring in judgment); internal quotation marks omitted).

B

The search at issue in this case took place a full two years before this Court announced its new rule in Gant. On an April evening in 2007, police officers in Greenville, Alabama, conducted a routine traffic stop that eventually resulted in the arrests of driver Stella Owens (for driving while intoxicated) and passenger Willie Davis (for giving a false name to police). The police handcuffed both Owens and Davis, and they placed the arrestees in the back of separate patrol cars. The police then searched the passenger compartment of Owens’s vehicle and found a revolver inside Davis’s jacket pocket.

Davis was indicted in the Middle District of Alabama on one count of possession of a firearm by a convicted felon. See 18 U. S. C. §922(g)(1). In his motion to suppress the revolver, Davis acknowledged that the officers’ search fully complied with “existing Eleventh Circuit precedent.” App. 13–15. Like most courts, the Eleventh Circuit had long read Belton to establish a bright-line rule authorizing substantially contemporaneous vehicle searches incident to arrests of recent occupants. See United States v. Gonzalez, 71 F. 3d 819, 822, 824–827 (CA11 1996) (upholding automobile search conducted after the defendant had been “pulled from the vehicle, handcuffed, laid on the ground, and placed under arrest”). Davis recognized that the District Court was obligated to follow this precedent, but he raised a Fourth Amendment challenge to preserve “the issue for review” on appeal. App. 15. The District Court denied the motion, and Davis was convicted on the firearms charge.

While Davis’s appeal was pending, this Court decided Gant. The Eleventh Circuit, in the opinion below, applied Gant’s new rule and held that the vehicle search incident to Davis’s arrest “violated [his] Fourth Amendment rights.” 598 F. 3d 1259, 1263 (CA11 2010). As for whether this constitutional violation warranted suppression, the Eleventh Circuit viewed that as a separate issue that turned on “the potential of exclusion to deter wrongful police conduct.” Id., at 1265 (quoting Herring v. United States, 555 U. S. 135, 137 (2009); internal quotation marks omitted). The court concluded that “penalizing the [arresting] officer” for following binding appellate precedent would do nothing to “dete[r] . . . Fourth Amendment violations.” 598 F. 3d, at 1265–1266 (bracketing and internal quotation marks omitted). It therefore declined to apply the exclusionary rule and affirmed Davis’s conviction. We granted certiorari. 562 U. S. ___ (2010).

II

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Amendment says nothing about suppressing evidence obtained in violation of this command. That rule—the exclusionary rule—is a “prudential” doctrine, Pennsylvania Bd. of Probation and Parole v. Scott, 524 U. S. 357, 363 (1998), created by this Court to “compel respect for the constitutional guaranty.” Elkins v. United States, 364 U. S. 206, 217 (1960); see Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). Exclusion is “not a personal constitutional right,” nor is it designed to “redress the injury” occasioned by an unconstitutional search. Stone v. Powell, 428 U. S. 465, 486 (1976); see United States v. Janis, 428 U. S. 433, 454, n. 29 (1976) (exclusionary rule “unsupportable as reparation or compensatory dispensation to the injured criminal” (internal quotation marks omitted)). The rule’s sole purpose, we have repeatedly held, is to deter future Fourth Amendment violations. E.g., Herring, supra, at 141, and n. 2; United States v. Leon, 468 U. S. 897, 909, 921, n. 22 (1984); Elkins, supra, at 217 (“calculated to prevent, not to repair”). Our cases have thus limited the rule’s operation to situations in which this purpose is “thought most efficaciously served.” United States v. Calandra, 414 U. S. 338, 348 (1974). Where suppression fails to yield “appreciable deterrence,” exclusion is “clearly . . . unwarranted.” Janis, supra, at 454.

Real deterrent value is a “necessary condition for exclusion,” but it is not “a sufficient” one. Hudson v. Michigan, 547 U. S. 586, 596 (2006). The analysis must also account for the “substantial social costs” generated by the rule. Leon, supra, at 907. Exclusion exacts a heavy toll on both the judicial system and society at large. Stone, 428 U. S., at 490–491. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. Ibid. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. See Herring, supra, at 141. Our cases hold that society must swallow this bitter pill when necessary, but only as a “last resort.” Hudson, supra, at 591. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs. See Herring, supra, at 141; Leon, supra, at 910.

Admittedly, there was a time when our exclusionaryrule cases were not nearly so discriminating in their approach to the doctrine. “Expansive dicta” in several decisions, see Hudson, supra, at 591, suggested that the rule was a self-executing mandate implicit in the Fourth Amendment itself. See Olmstead v. United States, 277 U. S. 438, 462 (1928) (remarking on the “striking outcome of the Weeks case” that “the Fourth Amendment, although not referring to or limiting the use of evidence in courts, really forbade its introduction”); Mapp, supra, at 655 (“[A]ll evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court”). As late as our 1971 decision in Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S. 560, 568–569, the Court “treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule.” Arizona v. Evans, 514 U. S. 1, 13 (1995). In time, however, we came to acknowledge the exclusionary rule for what it undoubtedly is—a “judicially created remedy” of this Court’s own making. Calandra, supra, at 348. We abandoned the old, “reflexive” application of the doctrine, and imposed a more rigorous weighing of its costs and deterrence benefits. Evans, supra, at 13; see, e.g., Calandra, supra; Janis, supra; Stone, supra; INS v. Lopez-Mendoza, 468 U. S. 1032 (1984); United States v. Havens, 446 U. S. 620 (1980). In a line of cases beginning with United States v. Leon, 468 U. S. 897, we also recalibrated our cost-benefit analysis in exclusion cases to focus the inquiry on the “flagrancy of the police misconduct” at issue. Id.i>, at 909, 911.

The basic insight of the Leon line of cases is that the deterrence benefits of exclusion “var[y] with the culpability of the law enforcement conduct” at issue. Herring, 555 U. S., at 143. When the police exhibit “deliberate,” “reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends to outweigh the resulting costs. Id., at 144. But when the police act with an objectively “reasonable goodfaith belief ” that their conduct is lawful, Leon, supra, at 909 (internal quotation marks omitted), or when their conduct involves only simple, “isolated” negligence, Herring, supra, at 137, the “ ‘deterrence rationale loses much of its force,’ ” and exclusion cannot “pay its way.” See Leon, supra, at 919, 908, n. 6 (quoting United States v. Peltier, 422 U. S. 531, 539 (1975)).

The Court has over time applied this “good-faith” exception across a range of cases. Leon itself, for example, held that the exclusionary rule does not apply when the police conduct a search in “objectively reasonable reliance” on a warrant later held invalid. 468 U. S., at 922. The error in such a case rests with the issuing magistrate, not the police officer, and “punish[ing] the errors of judges” is not the office of the exclusionary rule. Id., at 916; see also Massachusetts v. Sheppard, 468 U. S. 981, 990 (1984) (companion case declining to apply exclusionary rule where warrant held invalid as a result of judge’s clerical error).

Other good-faith cases have sounded a similar theme. Illinois v. Krull, 480 U. S. 340 (1987), extended the goodfaith exception to searches conducted in reasonable reliance on subsequently invalidated statutes. Id., at 349– 350 (“legislators, like judicial officers, are not the focus of the rule”). In Arizona v. Evans, supra, the Court applied the good-faith exception in a case where the police reasonably relied on erroneous information concerning an arrest warrant in a database maintained by judicial employees. Id., at 14. Most recently, in Herring v. United States, 555 U. S. 135, we extended Evans in a case where police employees erred in maintaining records in a warrant database. “[I]solated,” “nonrecurring” police negligence, we determined, lacks the culpability required to justify the harsh sanction of exclusion. 555 U. S., at 137, 144.

III

The question in this case is whether to apply the exclusionary rule when the police conduct a search in objectively reasonable reliance on binding judicial precedent. At the time of the search at issue here, we had not yet decided Arizona v. Gant, 556 U. S. ___, and the Eleventh Circuit had interpreted our decision in New York v. Belton, 453 U. S. 454, to establish a bright-line rule authorizing the search of a vehicle’s passenger compartment incident to a recent occupant’s arrest. Gonzalez, 71 F. 3d, at 825. The search incident to Davis’s arrest in this case followed the Eleventh Circuit’s Gonzalez precedent to the letter. Although the search turned out to be unconstitutional under Gant, all agree that the officers’ conduct was in strict compliance with then-binding Circuit law and was not culpable in any way. See Brief for Petitioner 49 (“suppression” in this case would “impl[y] no assignment of blame”).

Under our exclusionary-rule precedents, this acknowledged absence of police culpability dooms Davis’s claim. Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield “meaningfu[l]” deterrence, and culpable enough to be “worth the price paid by the justice system.” Herring, 555 U. S., at 144. The conduct of the officers here was neither of these things. The officers who conducted the search did not violate Davis’s Fourth Amendment rights deliberately, recklessly, or with gross negligence. See ibid. Nor does this case involve any “recurring or systemic negligence” on the part of law enforcement. Ibid. The police acted in strict compliance with binding precedent, and their behavior was not wrongful. Unless the exclusionary rule is to become a strict-liability regime, it can have no application in this case.

Indeed, in 27 years of practice under Leon’s good-faith exception, we have “never applied” the exclusionary rule to suppress evidence obtained as a result of nonculpable, innocent police conduct. Herring, supra, at 144. If the police in this case had reasonably relied on a warrant in conducting their search, see Leon, supra, or on an erroneous warrant record in a government database, Herring, supra, the exclusionary rule would not apply. And if Congress or the Alabama Legislature had enacted a statute codifying the precise holding of the Eleventh Circuit’s decision in Gonzalez,4 we would swiftly conclude that “ ‘[p]enalizing the officer for the legislature’s error . . . cannot logically contribute to the deterrence of Fourth Amendment violations.’ ” See Krull, 480 U. S., at 350. The same should be true of Davis’s attempt here to “ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’ ” See ibid.

About all that exclusion would deter in this case is conscientious police work. Responsible law-enforcement officers will take care to learn “what is required of them” under Fourth Amendment precedent and will conform their conduct to these rules. Hudson, 547 U. S., at 599. But by the same token, when binding appellate precedent specifically authorizes a particular police practice, welltrained officers will and should use that tool to fulfill their crime-detection and public-safety responsibilities. An officer who conducts a search in reliance on binding appellate precedent does no more than “ ‘ac[t] as a reasonable officer would and should act’ ” under the circumstances. Leon, 468 U. S., at 920 (quoting Stone, 428 U. S., at 539– 540 (White, J., dissenting)). The deterrent effect of exclusion in such a case can only be to discourage the officer from “ ‘do[ing] his duty.’ ” 468 U. S., at 920.

That is not the kind of deterrence the exclusionary rule seeks to foster. We have stated before, and we reaffirm today, that the harsh sanction of exclusion “should not be applied to deter objectively reasonable law enforcement activity.” Id., at 919. Evidence obtained during a search conducted in reasonable reliance on binding precedent is not subject to the exclusionary rule.

IV

JUSTICE BREYER’s dissent and Davis argue that, although the police conduct in this case was in no way culpable, other considerations should prevent the good-faith exception from applying. We are not persuaded.

A

1

The principal argument of both the dissent and Davis is that the exclusionary rule’s availability to enforce new Fourth Amendment precedent is a retroactivity issue, see Griffith v. Kentucky, 479 U. S. 314 (1987), not a good-faith issue. They contend that applying the good-faith exception where police have relied on overruled precedent effectively revives the discarded retroactivity regime of Linkletter v. Walker, 381 U. S. 618 (1965). See post, at 2–5.

In Linkletter, we held that the retroactive effect of a new constitutional rule of criminal procedure should be determined on a case-by-case weighing of interests. For each new rule, Linkletter required courts to consider a threefactor balancing test that looked to the “purpose” of the new rule, “reliance” on the old rule by law enforcement and others, and the effect retroactivity would have “on the administration of justice.” 381 U. S., at 636. After “weigh[ing] the merits and demerits in each case,” courts decided whether and to what extent a new rule should be given retroactive effect. Id., at 629. In Linkletter itself, the balance of interests prompted this Court to conclude that Mapp v. Ohio, 367 U. S. 643—which incorporated the exclusionary rule against the States—should not apply retroactively to cases already final on direct review. 381 U. S., at 639–640. The next year, we extended Linkletter to retroactivity determinations in cases on direct review. See Johnson v. New Jersey, 384 U. S. 719, 733 (1966) (holding that Miranda v. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964), applied retroactively only to trials commenced after the decisions were released).

Over time, Linkletter proved difficult to apply in a consistent, coherent way. Individual applications of the standard “produced strikingly divergent results,” see Danforth v. Minnesota, 552 U. S. 264, 273 (2008), that many saw as “incompatible” and “inconsistent.” Desist v. United States, 394 U. S. 244, 258 (1969) (Harlan, J., dissenting). Justice Harlan in particular, who had endorsed the Linkletter standard early on, offered a strong critique in which he argued that “basic judicial” norms required full retroactive application of new rules to all cases still subject to direct review. 394 U. S., at 258–259; see also Mackey v. United States, 401 U. S. 667, 675–702 (1971) (Harlan, J., concurring in part and dissenting in part). Eventually, and after more than 20 years of toil under Linkletter, the Court adopted Justice Harlan’s view and held that newly announced rules of constitutional criminal procedure must apply “retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception.” Griffith, supra, at 328.

2

The dissent and Davis argue that applying the goodfaith exception in this case is “incompatible” with our retroactivity precedent under Griffith. See post, at 2; Reply Brief for Petitioner 3–7. We think this argument conflates what are two distinct doctrines.

Our retroactivity is concerned with jurisprudence whether, as a categorical matter, a new rule is available on direct review as a potential ground for relief. Retroactive application under Griffith lifts what would otherwise be a categorical bar to obtaining redress for the government’s violation of a newly announced constitutional rule. See Danforth, supra, at 271, n. 5 (noting that it may “make more sense to speak in terms of the ‘redressability’ of violations of new rules, rather than the ‘retroactivity’ of such new rules”). Retroactive application does not, however, determine what “appropriate remedy” (if any) the defendant should obtain. See Powell v. Nevada, 511 U. S. 79, 84 (1994) (noting that it “does not necessarily follow” from retroactive application of a new rule that the defendant will “gain . . . relief ”). Remedy is a separate, analytically distinct issue. Cf. American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 189 (1990) (plurality opinion) (“[T]he Court has never equated its retroactivity principles with remedial principles”). As a result, the retroactive application of a new rule of substantive Fourth Amendment law raises the question whether a suppression remedy applies; it does not answer that question. See Leon, 468 U. S., at 906 (“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’ ”).

When this Court announced its decision in Gant, Davis’s conviction had not yet become final on direct review. Gant therefore applies retroactively to this case. Davis may invoke its newly announced rule of substantive Fourth Amendment law as a basis for seeking relief. See Griffith, supra, at 326, 328. The question, then, becomes one of remedy, and on that issue Davis seeks application of the exclusionary rule. But exclusion of evidence does not automatically follow from the fact that a Fourth Amendment violation occurred. See Evans, 514 U. S., at 13–14. The remedy is subject to exceptions and applies only where its “purpose is effectively advanced.” Krull, 480 U. S., at 347.

The dissent and Davis recognize that at least some of the established exceptions to the exclusionary rule limit its availability in cases involving new Fourth Amendment rules. Suppression would thus be inappropriate, the dissent and Davis acknowledge, if the inevitable-discovery exception were applicable in this case. See post, at 3; Reply Brief for Petitioner 22 (“Doctrines such as inevitable discovery, independent source, attenuated basis, [and] standing . . . sharply limit the impact of newly-announced rules”). The good-faith exception, however, is no less an established limit on the remedy of exclusion than is inevitable discovery. Its application here neither contravenes Griffith nor denies retroactive effect to Gant.5

It is true that, under the old retroactivity regime of Linkletter, the Court’s decisions on the “retroactivity problem in the context of the exclusionary rule” did take into account whether “law enforcement officers reasonably believed in good faith” that their conduct was in compliance with governing law. Peltier, 422 U. S., at 535–537. As a matter of retroactivity analysis, that approach is no longer applicable. See Griffith, 479 U. S. 314. It does not follow, however, that reliance on binding precedent is irrelevant in applying the good-faith exception to the exclusionary rule. When this Court adopted the good-faith exception in Leon, the Court’s opinion explicitly relied on Peltier and imported its reasoning into the good-faith inquiry. See 468 U. S., at 918–919. That reasonable reliance by police was once a factor in our retroactivity cases does not make it any less relevant under our Leon line of cases.6

B

Davis also contends that applying the good-faith exception to searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law. With no possibility of suppression, criminal defendants will have no incentive, Davis maintains, to request that courts overrule precedent.7

1

This argument is difficult to reconcile with our modern understanding of the role of the exclusionary rule. We have never held that facilitating the overruling of precedent is a relevant consideration in an exclusionary-rule case. Rather, we have said time and again that the sole purpose of the exclusionary rule is to deter misconduct by law enforcement. See, e.g., Sheppard, 468 U. S., at 990 (“ ‘adopted to deter unlawful searches by police’ ”); Evans, supra, at 14 (“historically designed as a means of deterring police misconduct”).

We have also repeatedly rejected efforts to expand the focus of the exclusionary rule beyond deterrence of culpable police conduct. In Leon, for example, we made clear that “the exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges.” 468 U. S., at 916; see id., at 918 (“If exclusion of evidence obtained pursuant to a subsequently invalidated warrant is to have any deterrent effect . . . it must alter the behavior of individual law enforcement officers or the policies of their departments”). Krull too noted that “legislators, like judicial officers, are not the focus” of the exclusionary rule. 480 U. S., at 350. And in Evans, we said that the exclusionary rule was aimed at deterring “police misconduct, not mistakes by court employees.” 514 U. S., at 14. These cases do not suggest that the exclusionary rule should be modified to serve a purpose other than deterrence of culpable law-enforcement conduct.

2

And in any event, applying the good-faith exception in this context will not prevent judicial reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent sought to be challenged will be a decision of a Federal Court of Appeals or State Supreme Court. But a good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and correction of such decisions. This Court reviews criminal convictions from 12 Federal Courts of Appeals, 50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question remains open will still have an undiminished incentive to litigate the issue. This Court can then grant certiorari, and the development of Fourth Amendment law will in no way be stunted.8 Davis argues that Fourth Amendment precedents of this Court will be effectively insulated from challenge under a good-faith exception for reliance on appellate precedent. But this argument is overblown. For one thing, it is important to keep in mind that this argument applies to an exceedingly small set of cases. Decisions overruling this Court’s Fourth Amendment precedents are rare. Indeed, it has been more than 40 years since the Court last handed down a decision of the type to which Davis refers. Chimel v. California, 395 U. S. 752 (overruling United States v. Rabinowitz, 339 U. S. 56 (1950), and Harris v. United States, 331 U. S. 145 (1947)). And even in those cases, Davis points out that no fewer than eight separate doctrines may preclude a defendant who successfully challenges an existing precedent from getting any relief. Brief for Petitioner 50. Moreover, as a practical matter, defense counsel in many cases will test this Court’s Fourth Amendment precedents in the same way that Belton was tested in Gant—by arguing that the precedent is distinguishable. See Brief for Respondent in Arizona v. Gant, O. T. 2008, No. 07–542, pp. 22–29.9

At most, Davis’s argument might suggest that—to prevent Fourth Amendment law from becoming ossified— the petitioner in a case that results in the overruling of one of this Court’s Fourth Amendment precedents should be given the benefit of the victory by permitting the suppression of evidence in that one case. Such a result would undoubtedly be a windfall to this one random litigant. But the exclusionary rule is “not a personal constitutional right.” Stone, 428 U. S., at 486. It is a “judicially created” sanction, Calandra, 414 U. S., at 348, specifically designed as a “windfall” remedy to deter future Fourth Amendment violations. See Stone, supra, at 490. The good-faith exception is a judicially created exception to this judicially created rule. Therefore, in a future case, we could, if necessary, recognize a limited exception to the good-faith exception for a defendant who obtains a judgment overruling one of our Fourth Amendment precedents. Cf. Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929, 952–953 (1965) (“[T]he same authority that empowered the Court to supplement the amendment by the exclusionary rule a hundred and twenty-five years after its adoption, likewise allows it to modify that rule as the lessons of experience may teach” (internal quotation marks and footnotes omitted)).10 But this is not such a case. Davis did not secure a decision overturning a Supreme Court precedent; the police in his case reasonably relied on binding Circuit precedent. See United States v. Gonzalez, 71 F. 3d 819. That sort of blameless police conduct, we hold, comes within the goodfaith exception and is not properly subject to the exclusionary rule.

* * *

It is one thing for the criminal “to go free because the constable has blundered.” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926) (Cardozo, J.). It is quite another to set the criminal free because the constable has scrupulously adhered to governing law. Excluding evidence in such cases deters no police misconduct and imposes substantial social costs. We therefore hold that when the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply. The judgment of the Court of Appeals for the Eleventh Circuit is Affirmed.

1 See e.g., United States v. Sanders, 631 F. 2d 1309, 1313–1314 (CA8 1980); United States v. Dixon, 558 F. 2d 919, 922 (CA9 1977); United States v. Frick, 490 F. 2d 666, 668–669 (CA5 1973); Hinkel v. Anchorage, 618 P. 2d 1069, 1069–1071 (Alaska 1980).

2 See e.g., United States v. Benson, 631 F. 2d 1336, 1340 (CA8 1980); see also United States v. Rigales, 630 F. 2d 364, 366–367 (CA5 1980); Ulesky v. State, 379 So. 2d 121, 125–126 (Fla. App. 1979).

3 See, e.g., United States v. Dorsey, 418 F. 3d 1038, 1041, 1043–1044 (CA9 2005) (upholding automobile search conducted after the officer had “handcuffed [the arrestee] and put him in the back of [the] patrol car”); United States v. Barnes, 374 F. 3d 601, 604 (CA8 2004) (same).

4 Cf. Kan. Stat. Ann. §22–2501(c) (2007) (“When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of . . . [d]iscovering the fruits, instrumentalities, or evidence of a crime”). The Kansas Supreme Court recently struck this provision down in light of Arizona v. Gant, 556 U. S. ___ (2009). State v. Henning, 289 Kan. 136, 137, 209 P. 3d 711, 714 (2009). But it has applied Illinois v. Krull, 480 U. S. 340 (1987), and the good-faith exception to searches conducted in reasonable reliance on the statute. See State v. Daniel, 291 Kan. 490, 497–504, 242 P. 3d 1186, 1191–1195 (2010).

5 The dissent argues that the good-faith exception is “unlike . . . inevitable discovery” because the former applies in all cases where the police reasonably rely on binding precedent, while the latter “applies only upon occasion.” Post, at 3. We fail to see how this distinction makes any difference. The same could be said—indeed, the same was said—of searches conducted in reasonable reliance on statutes. See Krull, 480 U. S., at 368–369 (O’Connor, J., dissenting) (arguing that result in Krull was inconsistent with Griffith). When this Court strikes down a statute on Fourth Amendment grounds, the good-faith exception may prevent the exclusionary rule from applying “in every case pending when [the statute] is overturned.” Post, at 3. This result does not make the Court’s newly announced rule of Fourth Amendment law any less retroactive. It simply limits the applicability of a suppression remedy. See Krull, supra, at 354–355, n. 11.

6 Nor does United States v. Johnson, 457 U. S. 537 (1982), foreclose application of the good-faith exception in cases involving changing law. Johnson distinguished Peltier and held that all Fourth Amendment cases should be retroactive on direct review so long as the new decision is not a “clear break” from prior precedent. 457 U. S., at 562. Johnson had no occasion to opine on the good-faith exception to the exclusionary rule, which we adopted two years later in Leon.

7 Davis also asserts that a good-faith rule would permit “new Fourth Amendment decisions to be applied only prospectively,” thus amounting to “a regime of rule-creation by advisory opinion.” Brief for Petitioner 23, 25. For reasons discussed in connection with Davis’s argument that application of the good-faith exception here would revive the Linkletter regime, this argument conflates the question of retroactivity with the question of remedy.

8 The dissent does not dispute this point, but it claims that the goodfaith exception will prevent us from “rely[ing] upon lower courts to work out Fourth Amendment differences among themselves.” Post, at 5. If that is correct, then today’s holding may well lead to more circuit splits in Fourth Amendment cases and a fuller docket of Fourth Amendment cases in this Court. See this Court’s Rule 10. Such a state of affairs is unlikely to result in ossification of Fourth Amendment doctrine.

9 Where the search at issue is conducted in accordance with a municipal “policy” or “custom,” Fourth Amendment precedents may also be challenged, without the obstacle of the good-faith exception or qualified immunity, in civil suits against municipalities. See 42 U. S. C. §1983; Los Angeles County v. Humphries, 562 U. S. ___, ___ (2010) (slip op., at 7) (citing Monell v. New York City Dept. of Social Servs., 436 U. S. 658, 690–691 (1978)).

10 Davis contends that a criminal defendant will lack Article III standing to challenge an existing Fourth Amendment precedent if the good-faith exception to the exclusionary rule precludes the defendant from obtaining relief based on police conduct that conformed to that precedent. This argument confuses weakness on the merits with absence of Article III standing. See ASARCO Inc. v. Kadish, 490 U. S. 605, 624 (1989) (standing does not “ ‘depen[d] on the merits of [a claim]’ ”). And as a practical matter, the argument is also overstated. In many instances, as in Gant, see 556 U. S., at __ (slip op., at 8), defendants will not simply concede that the police conduct conformed to the precedent; they will argue instead that the police conduct did not fall within the scope of the precedent. In any event, even if some criminal defendants will be unable to challenge some precedents for the reason that Davis suggests, that provides no good reason for refusing to apply the good-faith exception. As noted, the exclusionary rule is not a personal right, see Stone, 428 U. S., at 486, 490, and therefore the rights of these defendants will not be impaired. And because (at least in almost all instances) the prece dent can be challenged by others, Fourth Amendment case law will not be insulated from reconsideration.

SOTOMAYOR, J., concurring in judgment

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11328

_________________

WILLIE GENE DAVIS, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 16, 2011]

JUSTICE SOTOMAYOR, concurring in the judgment.

Under our precedents, the primary purpose of the exclusionary rule is “to deter future Fourth Amendment violations.” Ante, at 6; see, e.g., Herring v. United States, 555 U. S. 135, 141 (2009); Illinois v. Krull, 480 U. S. 340, 347– 348 (1987). Accordingly, we have held, application of the exclusionary rule is unwarranted when it “ ‘does not result in appreciable deterrence.’ ” Arizona v. Evans, 514 U. S. 1, 11 (1995) (quoting United States v. Janis, 428 U. S. 433, 454 (1976)). In the circumstances of this case, where “binding appellate precedent specifically authorize[d] a particular police practice,” ante, at 11—in accord with the holdings of nearly every other court in the country— application of the exclusionary rule cannot reasonably be expected to yield appreciable deterrence. I am thus compelled to conclude that the exclusionary rule does not apply in this case and to agree with the Court’s disposition.

This case does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled. As we previously recognized in deciding whether to apply a Fourth Amendment holding retroactively, when police decide to conduct a search or seizure in the absence of case law (or other authority) specifically sanctioning such action, exclusion of the evidence obtained may deter Fourth Amendment violations:

“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 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 questionable practice would be excluded only in the one case definitively resolving the unsettled question.” United States v. Johnson, 457 U. S. 537, 561 (1982) (footnote omitted). The Court of Appeals recognized as much in limiting its application of the good-faith exception it articulated in this case to situations where its “precedent on a given point [is] unequivocal.” 598 F. 3d 1259, 1266 (CA11 2010); see id., at 1266–1267 (“[W]e do not mean to encourage police to adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unsettled’ questions of Fourth Amendment law” (quoting Johnson, 457 U. S., at 561)). Whether exclusion would deter Fourth Amendment violations where appellate precedent does not specifically authorize a certain practice and, if so, whether the benefits of exclusion would outweigh its costs are questions unanswered by our previous decisions.

The dissent suggests that today’s decision essentially answers those questions, noting that an officer who conducts a search in the face of unsettled precedent “is no more culpable than an officer who follows erroneous ‘binding precedent.’ ” Post, at 7 (opinion of BREYER, J.). The Court does not address this issue. In my view, whether an officer’s conduct can be characterized as “culpable” is not itself dispositive. We have never refused to apply the exclusionary rule where its application would appreciably deter Fourth Amendment violations on the mere ground that the officer’s conduct could be characterized as nonculpable. Rather, an officer’s culpability is relevant because it may inform the overarching inquiry whether exclusion would result in appreciable deterrence. See ante, at 8 (“The basic insight of the Leon line of cases is that the deterrence benefits of exclusion var[y] with the culpability of the law enforcement conduct at issue” (internal quotation marks omitted; alteration in original)); see also, e.g., Herring, 555 U. S., at 143 (“The extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct”); United States v. Leon, 468 U. S. 897, 919 (1984) (“ ‘Where the official action was pursued in complete good faith, . . . the deterrence rationale loses much of its force’ ” (quoting Michigan v. Tucker, 417 U. S. 433, 447 (1974))). Whatever we have said about culpability, the ultimate questions have always been, one, whether exclusion would result in appreciable deterrence and, two, whether the benefits of exclusion outweigh its costs. See, e.g., ante, at 6–7; Herring, 555 U. S., at 141; Krull, 480 U. S., at 347.

As stated, whether exclusion would result in appreciable deterrence in the circumstances of this case is a different question from whether exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled. The Court’s answer to the former question in this case thus does not resolve the latter one.

BREYER, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 09–11328

_________________

WILLIE GENE DAVIS, PETITIONER v. UNITED

STATES

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE ELEVENTH CIRCUIT

[June 16, 2011]

JUSTICE BREYER, with whom JUSTICE GINSBURG joins, dissenting.

In 2009, in Arizona v. Gant, 556 U. S. ___, this Court held that a police search of an automobile without a warrant violates the Fourth Amendment if the police have previously removed the automobile’s occupants and placed them securely in a squad car. The present case involves these same circumstances, and it was pending on appeal when this Court decided Gant. Because Gant represents a “shift” in the Court’s Fourth Amendment jurisprudence, ante, at 1, we must decide whether and how Gant’s new rule applies here.

I

I agree with the Court about whether Gant’s new rule applies. It does apply. Between 1965, when the Court decided Linkletter v. Walker, 381 U. S. 618, and 1987, when it decided Griffith v. Kentucky, 479 U. S. 314, that conclusion would have been more difficult to reach. Under Linkletter, the Court determined a new rule’s retroactivity by looking to several different factors, including whether the new rule represented a “clear break” with the past and the degree of “reliance by law enforcement authorities on the old standards.” Desist v. United States, 394 U. S. 244, 248–249 (1969) (internal quotation marks omitted) (also citing “the purpose to be served by the new standards” and “the effect on the administration of justice” as factors (internal quotation marks omitted)). And the Court would often not apply the new rule to identical cases still pending on appeal. See ibid.

After 22 years of struggling with its Linkletter approach, however, the Court decided in Griffith that Linkletter had proved unfair and unworkable. It then substituted a clearer approach, stating that “a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.” 479 U. S., at 328. The Court today, following Griffith, concludes that Gant’s new rule applies here. And to that extent I agree with its decision.

II

The Court goes on, however, to decide how Gant’s new rule will apply. And here it adds a fatal twist. While conceding that, like the search in Gant, this search violated the Fourth Amendment, it holds that, unlike Gant, this defendant is not entitled to a remedy. That is because the Court finds a new “good faith” exception which prevents application of the normal remedy for a Fourth Amendment violation, namely, suppression of the illegally seized evidence. Weeks v. United States, 232 U. S. 383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). Leaving Davis with a right but not a remedy, the Court “keep[s] the word of promise to our ear” but “break[s] it to our hope.”

A

At this point I can no longer agree with the Court. A new “good faith” exception and this Court’s retroactivity decisions are incompatible. For one thing, the Court’s distinction between (1) retroactive application of a new rule and (2) availability of a remedy is highly artificial and runs counter to precedent. To determine that a new rule is retroactive is to determine that, at least in the normal case, there is a remedy. As we have previously said, the “source of a ‘new rule’ is the Constitution itself, not any judicial power to create new rules of law”; hence, “[w]hat we are actually determining when we assess the ‘retroactivity’ of a new rule is not the temporal scope of a newly announced right, but whether a violation of the right that occurred prior to the announcement of the new rule will entitle a criminal defendant to the relief sought.” Danforth v. Minnesota, 552 U. S. 264, 271 (2008). The Court’s “good faith” exception (unlike, say, inevitable discovery, a remedial doctrine that applies only upon occasion) creates “a categorical bar to obtaining redress” in every case pending when a precedent is overturned. Ante, at 13–14.

For another thing, the Court’s holding re-creates the very problems that led the Court to abandon Linkletter’s approach to retroactivity in favor of Griffith’s. One such problem concerns workability. The Court says that its exception applies where there is “objectively reasonable” police “reliance on binding appellate precedent.” Ante, at 1, 19. But to apply the term “binding appellate precedent” often requires resolution of complex questions of degree. Davis conceded that he faced binding anti-Gant precedent in the Eleventh Circuit. But future litigants will be less forthcoming. Ante, at 18. Indeed, those litigants will now have to create distinctions to show that previous Circuit precedent was not “binding” lest they find relief foreclosed even if they win their constitutional claim.

At the same time, Fourth Amendment precedents frequently require courts to “slosh” their “way through the factbound morass of ‘reasonableness.’ ” Scott v. Harris, 550 U. S. 372, 383 (2007). Suppose an officer’s conduct is consistent with the language of a Fourth Amendment rule that a court of appeals announced in a case with clearly distinguishable facts? Suppose the case creating the relevant precedent did not directly announce any general rule but involved highly analogous facts? What about a rule that all other jurisdictions, but not the defendant’s jurisdiction, had previously accepted? What rules can be developed for determining when, where, and how these different kinds of precedents do, or do not, count as relevant “binding precedent”? The Linkletter-like result is likely complex legal argument and police force confusion. See Williams v. United States, 401 U. S. 646, 676 (1971) (opinion of Harlan, J.) (describing trying to follow Linkletter decisions as “almost as difficult” as trying to follow “the tracks made by a beast of prey in search of its intended victim”).

Another such problem concerns fairness. Today’s holding, like that in Linkletter, “violates basic norms of constitutional adjudication.” Griffith, supra, at 322. It treats the defendant in a case announcing a new rule one way while treating similarly situated defendants whose cases are pending on appeal in a different way. See ante, at 18– 19. Justice Harlan explained why this approach is wrong when he said: “We cannot release criminals from jail merely because we think one case is a particularly appropriate one [to announce a constitutional doctrine] . . . . Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from [our ordinary] model of judicial review.” Williams, supra, at 679. And in Griffith, the Court “embraced to a significant extent the comprehensive analysis presented by Justice Harlan.” 479 U. S., at 322. Of course, the Court may, as it suggests, avoid this unfairness by refusing to apply the exclusionary rule even to the defendant in the very case in which it announces a “new rule.” But that approach would make matters worse. What would then happen in the lower courts? How would courts of appeals, for example, come to reconsider their prior decisions when other circuits’ cases lead them to believe those decisions may be wrong? Why would a defendant seek to overturn any such decision? After all, if the (incorrect) circuit precedent is clear, then even if the defendant wins (on the constitutional question), he loses (on relief). See Stovall v. Denno, 388 U. S. 293, 301 (1967). To what extent then could this Court rely upon lower courts to work out Fourth Amendment differences among themselves—through circuit reconsideration of a precedent that other circuits have criticized? See Arizona v. Evans, 514 U. S. 1, 23, n. 1 (1995) (GINSBURG, J., dissenting).

B

Perhaps more important, the Court’s rationale for creating its new “good faith” exception threatens to undermine well-settled Fourth Amendment law. The Court correctly says that pre-Gant Eleventh Circuit precedent had held that a Gant-type search was constitutional; hence the police conduct in this case, consistent with that precedent, was “innocent.” Ante, at 10. But the Court then finds this fact sufficient to create a new “good faith” exception to the exclusionary rule. It reasons that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” ante, at 6. The “deterrence benefits of exclusion vary with the culpability of the law enforcement conduct at issue,” ante, at 8 (internal quotation marks and brackets omitted). Those benefits are sufficient to justify exclusion where “police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” ibid. (internal quotation marks omitted). But those benefits do not justify exclusion where, as here, the police act with “simple, isolated negligence” or an “objectively reasonable good-faith belief that their conduct is lawful,” ibid. (internal quotation marks omitted).

If the Court means what it says, what will happen to the exclusionary rule, a rule that the Court adopted nearly a century ago for federal courts, Weeks v. United States, 232 U. S. 383, and made applicable to state courts a half century ago through the Fourteenth Amendment, Mapp v. Ohio, 367 U. S. 643? The Court has thought of that rule not as punishment for the individual officer or as reparation for the individual defendant but more generally as an effective way to secure enforcement of the Fourth Amendment’s commands. Weeks, supra, at 393 (without the exclusionary rule, the Fourth Amendment would be “of no value,” and “might as well be stricken from the Constitution”). This Court has deviated from the “suppression” norm in the name of “good faith” only a handful of times and in limited, atypical circumstances: where a magistrate has erroneously issued a warrant, United States v. Leon, 468 U. S. 897 (1984); where a database has erroneously informed police that they have a warrant, Arizona v. Evans, 514 U. S. 1 (1995), Herring v. United States, 555 U. S. 135 (2009); and where an unconstitutional statute purported to authorize the search, Illinois v. Krull, 480 U. S. 340 (1987). See Herring, supra, at 142 (“good faith” exception inaptly named).

The fact that such exceptions are few and far between is understandable. Defendants frequently move to suppress evidence on Fourth Amendment grounds. In many, perhaps most, of these instances the police, uncertain of how the Fourth Amendment applied to the particular factual circumstances they faced, will have acted in objective good faith. Yet, in a significant percentage of these instances, courts will find that the police were wrong. And, unless the police conduct falls into one of the exceptions previously noted, courts have required the suppression of the evidence seized. 1 W. LaFave, Search and Seizure §1.3, pp. 103–104 (4th ed. 2004) (“good faith” exception has not yet been applied to warrantless searches and seizures beyond the “rather special situations” of Evans, Herring, and Krull). See Valdes, Frequency and Success: An Empirical Study of Criminal Law Defenses, Federal Constitutional Evidentiary Claims, and Plea Negotiations, 153 U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are filed in approximately 7% of criminal cases; approximately 12% of suppression motions are successful); LaFave, supra, at 64 (“Surely many more Fourth Amendment violations result from carelessness than from intentional constitutional violations”); Stewart, The Road to Mapp v. Ohio and Beyond: The Origins, Development and Future of the Exclusionary Rule in Search-and-Seizure Cases, 83 Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of fourth amendment violations . . . [are] motivated by commendable zeal, not condemnable malice”).

But an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable than an officer who follows erroneous “binding precedent.” Nor is an officer more culpable where circuit precedent is simply suggestive rather than “binding,” where it only describes how to treat roughly analogous instances, or where it just does not exist. Thus, if the Court means what it now says, if it would place determinative weight upon the culpability of an individual officer’s conduct, and if it would apply the exclusionary rule only where a Fourth Amendment violation was “deliberate, reckless, or grossly negligent,” then the “good faith” exception will swallow the exclusionary rule. Indeed, our broad dicta in Herring—dicta the Court repeats and expands upon today—may already be leading lower courts in this direction. See United States v. Julius, 610 F. 3d 60, 66–67 (CA2 2010) (assuming warrantless search was unconstitutional and remanding for District Court to “perform the cost/benefit analysis required by Herring” and to consider “whether the degree of police culpability in this case rose beyond mere . . . negligence” before ordering suppression); United States v. Master, 614 F. 3d 236, 243 (CA6 2010) (“[T]he Herring Court’s emphasis seems weighed more toward preserving evidence for use in obtaining convictions, even if illegally seized . . . unless the officers engage in ‘deliberate, reckless, or grossly negligent conduct’ ” (quoting Herring, supra, at 144)). Today’s decision will doubtless accelerate this trend.

Any such change (which may already be underway) would affect not “an exceedingly small set of cases,” ante, at 18, but a very large number of cases, potentially many thousands each year. See Valdes, supra, at 1728. And since the exclusionary rule is often the only sanction available for a Fourth Amendment violation, the Fourth Amendment would no longer protect ordinary Americans from “unreasonable searches and seizures.” See Wolf v. Colorado, 338 U. S. 25, 41 (1949) (Murphy, J., dissenting) (overruled by Mapp v. Ohio, 367 U. S. 643 (1961)) (In many circumstances, “there is but one alternative to the rule of exclusion. That is no sanction at all”); Herring, supra, at 152 (GINSBURG, J., dissenting) (the exclusionary rule is “an essential auxiliary” to the Fourth Amendment). It would become a watered-down Fourth Amendment, offering its protection against only those searches and seizures that are egregiously unreasonable.

III

In sum, I fear that the Court’s opinion will undermine the exclusionary rule. And I believe that the Court wrongly departs from Griffith regardless. Instead I would follow Griffith, apply Gant’s rule retroactively to this case, and require suppression of the evidence. Such an approach is consistent with our precedent, and it would indeed affect no more than “an exceedingly small set of cases.” Ante, at 18.

For these reasons, with respect, I dissent.

Transcript: 

ORAL ARGUMENT OF ORIN S. KERR ON BEHALF OF THE PETITIONER

Chief Justice John G. Roberts: We will hear argument first this morning in Case 09-11328, Davis v. United States.

Mr. Kerr.

Mr. Kerr: Thank you, Mr. Chief Justice, and may it please the Court:

This case raises the intersection of two similar doctrines of the same vintage that point in exactly opposite directions: The first, retroactivity; and the second, the good faith exception.

This Court should reverse and hold that the good faith exception does not apply to reliance on precedent, and instead, that should be governed by the retroactivity principles of Griffith v. Kentucky.

I think it's helpful to start with Linkletter v. Walker, the 1965 decision that introduced the concept of retroactivity.

Linkletter held that Mapp v. Ohio, which had held that the exclusionary rule applied to State violations of the Fourth Amendment, is not retroactive.

The Linkletter decision was premised on a simple syllogism: The exclusionary rule is about deterrence; a decision that postdates a search cannot deter the police; and therefore, the exclusionary rule should not be available in cases before Mapp.

Linkletter's syllogism is the same syllogism that the Court is attempting -- that, sorry, the government is attempting to rely on in this case.

History has shown that that syllogism is powerful in the context of collateral review and habeas corpus proceedings, but it should not apply on direct review.

It should not apply on direct review for two basic reasons.

First, because on direct review the first case must be treated like other cases on direct review, the exclusionary rule must be available in order to protect the adversary process and avoid advisory opinions, which--

Justice Antonin Scalia: Excuse me.

You lose me in the argument because it doesn't seem to me that we -- if we did apply the good faith rule, we would be denying retroactive effect to the altered judgment.

It continues to apply to matters beforehand, but it's a totally different question whether, assuming it is retroactive, the good faith exception to the exclusionary rule applies.

It's a -- it's a separate question from retroactivity, it seems to me.

Mr. Kerr: --I disagree, Justice Scalia.

During the Linkletter period, the scope of the exclusionary rule for the Fourth Amendment was an essential concern in a series of retroactivity cases, Linkletter being the first, Desist v. United States being the second.

There were -- many of the Linkletter era retroactivity cases were concerned with the Fourth Amendment exclusionary rule.

Justice Anthony Kennedy: Yes, but just to pursue Justice Scalia's point: The good faith rule is itself a rule that's intact, that's a precedent, that was on the books, and the good faith rule qualifies the exclusionary rule.

So why aren't we just following the good faith rule here?

Mr. Kerr: The--

Justice Anthony Kennedy: I mean, there's nothing retroactive or prospective about it.

It's just -- it's just applying the existing law.

Mr. Kerr: --I disagree, Justice Kennedy.

It's not applying existing law, because the effect of what is labeled the good faith exception in this setting is actually to apply the prior decision; that is, to have all of the substance and effect of a retroactivity decision.

Justice Anthony Kennedy: Well, that's an application of -- that's a subset, it's one application, of the good faith rule, which is an overall principle.

But we're being faithful, under the government's view, it seems to me, to the overall principle.

Mr. Kerr: I think the Court needs to take away the labels here.

The government is using a label of good faith for what is essentially a retroactivity argument.

Justice Antonin Scalia: It's not a label at all.

You're -- we're not denying the application of the altered rule to your client's conduct.

It applies.

But the question of whether, when it does apply, the good faith disregard of it by a police officer nonetheless allows the evidence to be admitted, it's a totally different -- we're giving full retroactive effect to the -- to the change in the law.

Mr. Kerr: At the same time, Justice Scalia, whatever rule is applied in this case would have to be the same rule that applies in Gant itself, and without the incentive of counsel to argue in favor of the change in the law, that would block claims by defense attorneys to overturn the precedents of this Court.

Chief Justice John G. Roberts: Well, Mr. Kerr, our cases have talked about the deterrence impact on police conduct.

It seems to me you're trying to expand that notion to cover incentives for defendants, and as I read -- I guess it's Leon, in footnote 25, it says the argument that defendants will lose their incentive to litigate meritorious Fourth Amendment claims as a result of a good faith exception is -- is unpersuasive.

Mr. Kerr: Leon, I think, raised a different setting.

It raised the question of reliance on errors by a magistrate judge, which simply does not implicate the concerns of retroactivity, which is this Court changing its interpretation of the Fourth Amendment.

I think that raises a distinct set of principles, as Justice Harlan recognized in his dissent in Desist and his separate opinion--

Chief Justice John G. Roberts: Well, I think our -- our theory on the exclusionary rule across the board, without regard to the underlying substantive violation, is that you look to deterrence of police conduct.

And here, I mean -- I mean, you agree the police did nothing wrong in this case, don't you?

Mr. Kerr: --Yes.

Chief Justice John G. Roberts: So what impact -- why do we want to deter them from doing what's right?

Mr. Kerr: Because it takes two branches of government for the exclusionary rule to deter constitutional violations.

The Court has to properly construe the Fourth Amendment and the police need to then properly follow the Court's precedents.

The Court can't turn away from the role of this Court's precedents in the enforcement of the Fourth Amendment.

Justice Samuel Alito: Well, I understand your argument with respect to decisions of this Court, and I think that's your strongest argument, but would you concede that that argument does not apply when the precedent on which the police are relying is a decision of one of the courts of appeals or a State supreme court Fourth Amendment decision?

In that situation, there will be plenty of avenues for obtaining review of the correctness of those decisions; isn't that right?

Mr. Kerr: Justice Alito, I think it depends on what the good faith exception is.

The government's brief I think does not exactly articulate what the standard is that -- to which it would like to apply.

Even so, most Circuit Court decisions interpreting the Fourth Amendment are derivative of this Court's decisions interpreting the Fourth Amendment.

And this case is a good example.

The facts of this case are quite similar to the facts of Belton.

The Eleventh Circuit had not actually expanded upon Belton; it had merely had relatively routine applications of Belton.

Justice Samuel Alito: Well, it applied its understanding of Belton, which turned out to be different from the understanding of the Arizona Supreme Court in Gant and the understanding of at least four members of this Court when Gant got here.

Mr. Kerr: At the same time, the Eleventh Circuit's development of the law was -- went no further than Belton itself, and this Court needs adversaries to make forthright arguments to this Court which may involve distinguishing precedent and may involve overturning precedent.

Justice Samuel Alito: If I could just come back to my question: Suppose you have a decision in one of the courts of appeals that says certain conduct is permitted under the Fourth Amendment, and the police in that circuit, Federal law enforcement officers in that circuit, follow that precedent.

Now, is -- will there not be plenty of opportunities to review the correctness of that decision because the issue may arise in other circuits where the matter isn't settled?

Mr. Kerr: If this Court adopts a good faith exception that is quite narrow and would not allow an officer in one circuit to reasonably rely on the clear circuit court decisions of another circuit, that's certainly a possibility.

However, it's not clear as to why the Court would adopt such a narrow version of the exception.

The language that the government proposes, at least, seems to be the language of qualified immunity; the notion of reasonable reliance on a decision being believed to be lawful.

Justice Ruth Bader Ginsburg: Mr. Kerr, the line that has been suggested by Justice Scalia and Justice Kennedy, that is exactly the line that the Eleventh Circuit took; is it not the case?

I mean, Judge Kravitch said: Yes, the Fourth Amendment was violated, so to that extent we're following retroactivity precedent.

But the remedy is something different.

That was exactly the line that she took, wasn't it?

Mr. Kerr: That's correct.

Justice Ruth Bader Ginsburg: And on your theory, I mean, there's another question in this case; that is, perhaps this evidence would come in under the inventory, as a -- as a legitimate inventory search, and if the Court decided that question, then -- then the question you're arguing, the exclusionary rule question, would have no practical consequences.

On your theory, the way you reasoned, shouldn't the Court first decide was this a legitimate inventory search, and if so, then we never get to any exclusionary rule question?

Mr. Kerr: That issue, of course, has not been briefed in this case.

It would remain for the Eleventh Circuit to apply that in the event the Court reverses.

At the same time, I wish to be clear that I'm not arguing that the exclusionary rule is available in every case when the Court overturns its precedent, merely that it is a remedy in some cases, and I think it's actually a necessary cost.

Chief Justice John G. Roberts: If I could just follow up on Justice Ginsburg's question.

Why did this defendant have any incentive to bring his constitutional claim if, as may or may not appear too likely, the inventory search is going to result in the admission of the evidence anyway?

It seems that your theory goes too far in saying that defendants will never have an incentive to bring a constitutional challenge if there's some other ground on which the evidence might be admitted, and that's never been our law.

Mr. Kerr: I agree that's never been the Court's law, and I think there's an important distinction to be made here.

The distinction is between an argument that has a remote chance of success, and defendants will make those claims, and arguments that have no chance of success, which is no--

Chief Justice John G. Roberts: Well, it's often -- we do that.

We take cases where you can bring a constitutional challenge or a different challenge all the time, qualified immunity cases, you know, what was the law and was it clearly established?

Defendants bring the qualified immunity cases all the time even if they have a tough case on whether it's clearly established.

Harmless error cases, the underlying violation, whether it's a harmless error, and the Court can decide the case on either ground, but that doesn't keep defendants from bringing the claims.

Mr. Kerr: --But there's a big difference between a tough case and no case.

The difficulty of the government's claim is the defendant would know any effort to challenge this Court's precedent cannot logically lead to any relief.

Either the defendant will lose on the merits, if the Court upholds its precedent or the defendant will lose under the good faith exception.

Chief Justice John G. Roberts: So your incentive argument really only holds up when the ground on the alternative ground is hopeless?

Otherwise we'll expect the defendants to bring a Fourth Amendment claim because it's pretty easy to bring.

Mr. Kerr: Hopeless meaning a zero percent chance of likelihood.

That's the difficulty of the government's position, is that it--

Justice Elena Kagan: Mr. Kerr, let's say I'm concerned about the kinds of issues that you're raise, the incentives on defense counsel and also the oddity of the Court deciding a case in which it's absolutely not possible to grant a remedy.

Wouldn't the solution to that be not the rule that you are advocating, but instead a much more limited rule which said that in that case the exclusionary rule applied, but not in any other case, not in any case on direct appeal?

Mr. Kerr: --I think Justice Harlan's answer to that is persuasive, that it's inconsistent with basic norms of constitutional adjudication to treat the first case differently from other cases not on -- other cases on direct review.

Justice Elena Kagan: I guess, Mr. Kerr, I'm not sure that that's right.

Justice Harlan was talking about constitutional rights at a period where, as the Chief Justice said, the exclusionary rule was viewed as part of the constitutional right.

But if this Court doesn't view the exclusionary rule that way any more, if it views the exclusionary rule as simply a prophylactic rule which gives a particular defendant a windfall in order to gain systemic effects, systemic benefits, why would we do it any more broadly than we would need to do it?

And we would just say: Look, we understand your point that this would very much change the incentives for defense counsel.

We understand your point that it's kind of, I don't know, maybe inconsistent with Article III to take a case in which there was absolutely no chance of relief being granted, but we can deal with those issues simply by saying that in your case you get relief, but not in any other.

Mr. Kerr: Justice Kagan, that was the precise premise of the Linkletter regime.

The idea of the exclusionary rule as a judge-created remedy, the idea of the exclusionary rule as not being a personal right, that actually was the premise of Linkletter.

So to go back to something that resembles that regime in substance, even if with a new label.

I think is ill-advised in light of the history of the Linkletter era, and the Court's struggles to try to articulate a consistent standard that can treat the first case and other cases similarly.

I think Desist was a Fourth Amendment case, Peltier also a Fourth Amendment case.

The government's proposal is essentially a return to Peltier with a difference.

If the Court wants to treat the first case differently than later cases, it is essentially recreating Peltier.

Justice Samuel Alito: With respect to the incentives that you're talking about, is there really much difference between what would apply in a case like this and what already applies in cases that fall under Krull?

Suppose Congress enacts a statute that authorizes a search under particular circumstances, as it did, as was the case in Almeida-Sanchez.

Now, under Krull nobody is going to be able to, and no one who is subjected to a search under that statute is going to be able, to challenge, to obtain suppression, unless you can say that a reasonable law enforcement officer couldn't have thought that this statute which was enacted by Congress and signed by the President was a correct interpretation of the Fourth Amendment.

Now, maybe there'll be a few cases like that, but in the great majority, the vast majority of cases, the person will not be able to mount such a challenge.

So what is the difference between the situation here and the situation that the Court already approved in Krull?

Mr. Kerr: I think there are two differences.

One is that there is a substantial difference from the standpoint of a defendant or defense attorney between a remote chance of success in a legal claim and no chance of success on a legal claim.

Krull leaves open the possibility -- and it may be remote, but nonetheless a possibility -- of relief if the defendant can persuade a court that a reasonable officer would have known in light of this Court's precedent that the statute allowed unconstitutional searches.

Justice Samuel Alito: Well, we could leave that open here.

We could say that there's no good faith immunity if a reasonable officer couldn't have believed that a prior decision of this Court was a correct interpretation of the Fourth Amendment.

Maybe that sounds strange only because we have a higher opinion of ourselves than we do of the Congress and the President.

Mr. Kerr: And yet I think your -- your hypothetical, your suggestion that perhaps the Court could adopt that standard, shows the difficulty of trying to craft a good faith exception that ends up running up against the Linkletter problem.

This is exactly the issue the Court struggled with during the Linkletter era that Justice Harlan--

Justice Ruth Bader Ginsburg: Essentially, is your argument essentially that we should distinguish never, which would be this case if your position is not right, and hardly ever.

Is that--

Mr. Kerr: --That's correct.

Where the rule is never, defendants are unlikely to make any sort of claim, and this Court would be denied the opportunity to review its own precedents, and that's an essential role of this Court's decisions in the Fourth Amendment setting.

Justice Anthony Kennedy: Well, you might respond that the government's going to say, well, there's Monell that's in their brief, and you'll probably say that that's a weak substitute for a criminal defense attorney's doing it in the trial itself.

Mr. Kerr: It is a weak substitute.

There's been no case that I'm aware of at least involving liability against a municipality seeking law reform.

It's because the Court has rejected the notion of municipal liability as being based on respondeat superior.

Justice Anthony Kennedy: Suppose we were concerned with the costs of your rule in the sense that Gant does have some exception for the safety of the officers, and I think you can read the case if there's some general safety considerations for not securing the car in a neighborhood rather than leave it by itself.

If we adopted your rule, the prosecution in all those cases would not have had the opportunity to make those additional defenses or those -- to advance those additional justifications for the search.

Maybe you'll say, well, I'm just trying to resurrect Linkletter.

Mr. Kerr: I disagree.

Just to explain, Justice Kennedy, my rule would be to retain the existing practice of this Court.

I'm suggesting no changes in the practice of this Court, and that is when the Court recognized the need to overturn Belton or at least to substantially change Belton in the Gant case, the Court, Justice Alito in his dissent, recognized that there were costs along with that and that led to review of cases in the lower courts.

In many of those lower court decisions, the lower courts held that the searches were nonetheless constitutional under Gant, and that was absolutely proper.

In those situations there is no constitutional violation, no one goes--

Justice Anthony Kennedy: Well, those cases were pending.

I was concerned with cases that were closed, I suppose.

Mr. Kerr: --In the closed cases, I'm not in any way challenging the traditional rule of Teague v. Layne and Stone v. Powell that the new rule is not available.

As soon as the conviction is final, the door is closed and no defendant can seek review.

This is only about direct review and the initial case in which the rule is announced, and that's why I think it raises a special set of jurisprudential problems because it implicates this Court's need to avoid advisory opinions and to avoid what would amount to a one-way street.

Under the government's proposed rules, proposed rule, defendants would have a limited ability to challenge precedents that construe the Fourth Amendment too narrowly, but of course of government would be free in any case to challenge precedents that the government believes construes the Fourth Amendment too broadly.

The concern is that over time that would lead to an asymmetry in the Court's outcomes, not as a result of the measured judgments of this Court, but rather as a result of the incentives on counsel, and the Court should strive to avoid that sort of result.

Chief Justice John G. Roberts: You're asking us for an exception to our general approach, assuming the general approach is not the one you succeed, for, as you put it, cases where there's zero possibility of success, while allowing application of the good faith precedent, even if the chances of success are remote.

Is it really worth the candle to have litigation over whether it was a difference between zero chance and remote chance, as opposed to continuing to apply the good faith rule across the board?

Mr. Kerr: Just to be clear, the Court has not applied the good faith exception in this setting.

The government is arguing for an expansion of the good faith exception into territory which has traditionally been thought to be the regime of retroactivity.

Chief Justice John G. Roberts: I understand your position on that.

Now, getting to my question, is it really worth it for us to have litigation over the difference between zero and remote in determining what rule we should apply in this case?

Mr. Kerr: I don't foresee litigation on that point because, at least as I understand the government's rule, as soon as a defendant utters the phrase

"This court should overturn its precedent. "

then the good faith exception would automatically apply.

That's at least how I understand the government's proposed rule.

So it would be up to this Court to craft exactly what the standard would be, but if the standard is broad enough such that upon asking for--

Chief Justice John G. Roberts: Most lawyers don't take that position.

Most lawyers would argue the Court's precedents should be overturned and, if not, here's why our case is different.

And we would still be required under your theory to look if that second argument has zero chance or only a remote chance.

Mr. Kerr: --In that circumstance I think the Court would be forced with issuing what -- forced to issue what may amount to an advisory opinion.

Chief Justice John G. Roberts: And it seems to me -- I mean, in terms of the incentives on the defense counsel, it would be an odd defense lawyer who is going to say you should consider argument A because my second argument has got zero chance of succeeding.

Mr. Kerr: I think the incentive on defense counsel, if the government's rule is adopted, is to never argue that cases should be overturned, and instead make not terribly candid arguments to this Court that every case is distinguishable.

Justice Antonin Scalia: Mr. Kerr, I've been on the bench 30 years or so now.

I have never, never heard counsel come before the court and say that we should overrule a case without making the argument: The facts of this case are not within the prior decision anyway.

It just doesn't happen.

Mr. Kerr: Katz v. United States is perhaps a case worth focusing on, where the Court overturned the rule of Goldman and Olmstead that wiretapping does not implicate the Fourth Amendment.

Katz's brief to this Court argued that the Goldman-Olmstead regime had -- was no longer applicable, had been implicitly overturned by prior cases, and then said if it has not been implicitly overturned, it must be overruled.

There was no attempt to try to distinguish the facts of the Katz case from the Goldman-Olmstead regime.

Justice Antonin Scalia: There was still not the argument you should overrule the prior case, period, with no effort to show why you could come out that way without overruling the prior cases.

I just don't know--

Mr. Kerr: Those arguments, I agree, Justice Scalia, are rare.

At the same time they are important arguments.

It is an -- it is an alternative argument--

Justice Antonin Scalia: --I'm saying they're nonexistent.

I'm not saying they're rare.

Chief Justice John G. Roberts: The difference between zero and remote.

[Laughter]

Mr. Kerr: --Nonetheless, the incentive on counsel under the government's rule would be not to ever make the claim that a precedent should be overturned.

And the Court needs that argument to be made in appropriate cases so the Court can enter decisions and consider the balance of the considerations appropriately.

It has done so under the current practice, and that is really as a result of Griffith v. Kentucky, which applies not only -- allows the exclusionary rule to be available in the first case, but in other cases on direct review.

If there are no further questions, I would like to reserve the balance of my time.

Chief Justice John G. Roberts: Thank you, counsel.

Mr. Dreeben.

ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE RESPONDENT

Mr. Dreeben: Mr. Chief Justice, and may it please the Court:

Because the exclusionary rule has severe consequences for the truth-seeking function of a criminal trial, this Court has restricted its application to those situations in which it's necessary to further the deterrent purpose of the exclusionary rule, namely to shape police conduct.

The Court has repeatedly rejected efforts to expand the exclusionary rule to serve other purposes, such as schooling judges who issue warrants on the need to respect the Fourth Amendment, reminding legislatures about their obligations under the Fourth Amendment, and for other purposes such as to preserve judicial integrity.

Justice Ruth Bader Ginsburg: Mr. Dreeben, what about Gant itself?

Gant severely qualified Belton.

Should there have been a suppression remedy for Gant, as Justice Kagan suggested, the very case that changes the law?

Mr. Dreeben: Justice Ginsburg, let me give two responses to that.

First of all, the rule that the Eleventh Circuit adopted in this case, and that is the only rule before the Court, involves a situation in which there is binding appellant precedent that instructs the officer, tells the officer, what you're about to do complies with the Fourth Amendment.

The state of the law in Arizona would not necessarily have risen to that level, in light of the dissonance in that court's opinions, in the Arizona Supreme Court opinions, about the reach and scope of Belton.

So the question about whether the rule that we're urging here would have applied in Arizona is a separate question from the one that the Eleventh Circuit resolved.

Justice Ruth Bader Ginsburg: And how would you answer it?

Was Gant purely prospective or did Gant itself get the exclusionary rule?

Mr. Dreeben: Gant obtained relief.

This Court granted certiorari in Gant limited to the Fourth Amendment question, and Arizona never raised any good faith exception to the exclusionary rule in that case, so the Court did not address the good faith issue.

Justice Ruth Bader Ginsburg: Suppose -- suppose it had been raised?

Mr. Dreeben: The logic of our position would be that, to the extent that Gant was seeking Belton to be overruled, he would not be able to impugn the actions of the officers who relied on it.

To the extent that he was doing what he actually did do and which this Court's opinion in Gant accepted, which is to say that the Gant opinion, that the Belton opinion did not resolve the fact pattern in Gant, he would not be automatically governed by the good faith exception.

And as a result, Gant is really the best illustration of how unusual it is for a lawyer to come to this Court and say, please outright overrule a Fourth Amendment decision.

Justice Elena Kagan: Mr. Dreeben, do you think that if a lawyer did that, if a lawyer filed a cert petition and said you should overturn the following Fourth Amendment precedent, and that was all that was in the cert petition, would we be able to grant that cert petition knowing that there was no possibility of relief for that petitioner?

Mr. Dreeben: Yes, Justice Kagan, I believe the Court could grant that petition, although it's highly likely that any criminal defendant who filed it would couple it with a claim that this Court should either reverse, modify, or limit any holding that came out.

Justice Elena Kagan: But you think that we would have appropriate Article III authority to decide that question without any hope of relief?

Mr. Dreeben: Certainly the Court would have Article III authority, because it's always free to limit, modify or abrogate one of its precedents, including a holding, if one issued from this decision, that the good faith rule applies when the Court overrules its decision.

Litigants can all the time be faced with impossible arguments under existing precedent, but that doesn't preclude this Court's Article III jurisdiction to adjudicate challenges to that precedent.

That's indeed the very premise of Petitioner's argument.

Justice Antonin Scalia: I assume if Petitioner says we should be able to overrule our prior substantive precedent, he should also logically say that we should be able to overrule our prior precedent regarding the exclusionary rule.

So that whenever somebody wants to come up here to challenge prior precedent, he can just say: You know, Your Honors, we're asking you to overrule two cases: The first one, the substantive rule of Fourth Amendment law; and secondly, whether that -- that change in law can govern the action of the policeman who didn't realize that the law was going to be changed.

Mr. Dreeben: That's correct, Justice Scalia, and I think it illustrates why there is no Article III impediment.

Now, this Court may prudentially be reluctant to take a case in which it knows that its resolution of the Fourth Amendment issue would not dictate a reversal of the judgment, even if the Fourth Amendment issue went in favor of the defendant, but it is not that dissimilar from the situation in qualified immunity, when there is no law on the books that governs an issue and a petitioner asks the Court to resolve the Fourth Amendment issue.

Justice Antonin Scalia: And if he asks for the double overruling that I just suggested, I guess there's some chance that the Court would do it?

Mr. Dreeben: It would be remote, but not zero.

[Laughter]

Justice Sonia Sotomayor: You've just raised the question of qualified immunity and the similarities.

There is one problem that I have with the regime that you are suggesting, which is that because laws differ among circuits, now we've created a regime where we say if the law was clear or if there was law on this issue in your circuit, and the police officer relied on it, the exclusionary rule won't apply; but if the law was uncertain or not clear in another circuit, then the exclusionary rule does apply.

There's something illogical about permitting that kind of difference to control the outcome of suppression.

Are you through the back door trying to get in a qualified immunity thing?

If any police officer has a reasonable cause to believe their conduct didn't violate the Constitution, then no suppression?

That is what it sounds like your brief is ultimately suggesting.

Mr. Dreeben: Well, Justice Sotomayor, we're not kind -- trying to come in through the back door with qualified immunity as a standard in this case.

If we ever were to urge that, it would be through the front door.

We would make the argument overtly.

This case doesn't involve that issue.

Judge Kravitch's opinion for the Eleventh Circuit very carefully distinguished between cases in which governing precedent instructed the officers, your conduct is lawful if you do this, from cases in which the law is unclear and there is no governing precedent.

Justice Sonia Sotomayor: So there's no value in your mind to the fact, as your adversary is saying -- I don't -- I haven't found one case previously by this Court where it has applied the good faith exception to the finding by the Court of a Fourth Amendment violation.

Have you?

It's never been done in any case, correct?

Mr. Dreeben: Not directly under the exclusionary rule.

United States v. Peltier considered the factors that now go into the good faith exception under the rubric of then-prevailing retroactivity law.

Justice Sonia Sotomayor: Well, what we're doing is sort of -- your adversary is right, we're returning to Linkletter, aren't we?

We're sort of saying it's going to apply, the exclusionary rule is going to apply in some cases, but not all.

Mr. Dreeben: Not returning to Linkletter, Justice Sotomayor, because Linkletter was an across-the-board rule that said that this Court had the authority to render--

Justice Sonia Sotomayor: I'm talking about what happened before then.

Mr. Dreeben: --Before--

Justice Sonia Sotomayor: We're going to have the exclusionary rule apply sometimes but not other times.

Mr. Dreeben: --That's true, but that's a direct consequence of the logic of the good faith exception itself; and the considerations that had informed this Court's retroactivity jurisprudence in the Peltier decision were taken out of the law of retroactivity when the Court decided Griffith v. Kentucky; but those same considerations became relevant to the good faith exception, which is tied to the question of whether there is a need to deter police misconduct because the police have disregarded the governing law.

Justice Stephen G. Breyer: Is there -- is there anything to be said for simplicity?

The normal rule is when the police violate the Fourth Amendment you exclude the evidence.

That's the rule.

Then there are some exceptions, good faith, et cetera.

But that's the normal rule.

You have a new law in this Court.

The new law says, now this is a violation; we didn't previously think it is, but it is; and that applies to the case in front us and to other cases on direct appeal.

The reason that's simple is that's what we've always done.

And somebody says let's make an exception here, bring in the exception, good faith, and we say no.

Why?

Not because any of the policy arguments are wrong, but just because, as this last 40 minutes demonstrates, once we do that it's so complicated, only 14 people are going to understand it and they're not going to understand it, either.

Mr. Dreeben: Well, Justice Breyer, I think nine of the people who will understand it are on this Court.

Justice Stephen G. Breyer: That's very optimistic.

[Laughter]

Mr. Dreeben: I'm an optimist.

Justice Ruth Bader Ginsburg: I don't think that--

Justice Antonin Scalia: I don't think it's so complicated, counsel.

Don't worry about it.

[Laughter]

Mr. Dreeben: The principle is very straightforward.

The principle is that the exclusionary rule applies only when it can deter police misconduct.

When police rely on a warrant issued by a magistrate, a statute or a judicial decision issued by a court of appeals that governs their conduct, they are not making a decision about what the Fourth Amendment requires.

They are following a different actor in the system, and this Court has held that there is no deterrent value to suppress evidence with an important cost to the truth-seeking function of the criminal trial, which is why, even if it makes for a simpler rule, the Court does not automatically suppress evidence just to achieve simplicity.

It does--

Justice Antonin Scalia: Actually, why don't we just abolish the exclusionary rule?

That would be really simple.

Whatever evidence tends to prove the truth comes in.

That would be a very simple system if we're looking for just simplicity, wouldn't it?

Mr. Dreeben: --It would be an extremely simple system.

Justice Antonin Scalia: You're not proposing that, though?

Mr. Dreeben: Not in this case, because this case represents only an application of existing doctrine in the Court with respect to the purposes of the exclusionary rule.

Justice Anthony Kennedy: There is something ironic in your position that the defendant who lives in the circuit that is most clearly wrong is treated worst.

Mr. Dreeben: The defendant in these cases is not the object of the Court's protection.

I think, as Justice Kagan's question made clear, the exclusionary rule is not a personal individual right.

It's not a constitutional right at all.

It is a remedy that this Court has devised, not to protect the defendant's interests as such.

The Fourth Amendment violation has happened out of court.

It cannot be repaired.

The purpose of the exclusionary rule is to deter future conduct by other counterparts of that police officer or the police officer himself, so that when he confronts the situation in the future he will be more solicitous of Fourth Amendment rights.

Justice Sonia Sotomayor: Well, if there's a circuit split, how do we encourage police officers to be careful about the Fourth Amendment?

There's a presumption somehow that because a circuit precedent exists that says it's okay to do this, that police officers have to do this.

I don't necessarily believe that.

If there's a circuit split and a police officer knows that other circuits are saying this is unconstitutional, why are we taking away the deterrent effect of having thoughts occur to the officer about thinking through whether there's a better way and a legal way to do things?

With respect to the Fourth Amendment, we've built -- your adversary is right, we've built in so many exceptions, and including in this case the inventory search, that the officers have many different ways of doing things than merely doing what this particular court thought was legal or this circuit.

So I guess my question is, when there's a circuit split, why are we, as Justice Kennedy is saying, giving protection to the circuit that's plain wrong and to the officer who chose to follow that advice?

Mr. Dreeben: Justice Sotomayor, we don't expect police officers to attempt to define the content of the Fourth Amendment on their own.

They are recipients of the status of the law from the courts that govern their activities; training programs will be instituted based on that law.

I'm sure that careful training programs will advise officers that there may be some legal risk if there's a circuit split, and that a decision may ultimately be reversed; but we don't expect police departments to try to make the Fourth Amendment decision on their own.

And there's some sound--

Justice Sonia Sotomayor: But they're going to be protected -- they're going to be protected from that--

Mr. Dreeben: --Well--

Justice Sonia Sotomayor: --meaning they're going to get qualified immunity from any personal liability.

Mr. Dreeben: --Yes, but the reason that the Fourth Amendment balance has been struck in any given way in a particular court is because that is felt to be the reasonable way for officers to operate.

In other words--

Justice Antonin Scalia: I assume that an officer when he goes out to do his job does not have primarily in mind not to get sued, but I think primarily in mind he wants to arrest somebody in such a manner that the person can be convicted of the crime that he's done, right?

Mr. Dreeben: --Justice Scalia, that's exactly right.

The officers are seeking to protect the public interest, and by not taking advantage of decisions in their circuits that explain that certain behavior is reasonable, they can be putting the public interest at risk by relinquishing procedures that have been held to comply with the Fourth Amendment and yet allow the police to solve crime or to arrest suspects.

Now, there's been a lot of discussion in Petitioner's argument about the need to provide an incentive to counsel to raise Fourth Amendment challenges to existing precedent.

I think it's useful at the outset to look a little bit empirically at that question, because some members of the Court have expressed concern about that possibility.

From as best as I can tell, this Court has not overruled one of its Fourth Amendment precedents in a manner that favored defendants' interests since 1969.

Despite whatever incentives may have existed as a result of the exclusionary rule, defendants will typically understand that stare decisis is the normal course that this Court follows, and as a result, they are highly likely to structure their arguments in a manner that will seek to distinguish, limit, or undermine a precedent rather than calling for its outright overruling.

Justice Samuel Alito: Well, particularly in light of that, what is wrong with the suggestion that Justice Kagan raised in one of her questions about retaining an exception to the good faith exception for the situation, for the defendant whose case comes up here and results in the overruling of one of this Court's precedents?

The Court invented the exclusionary rule.

The Court invented the good faith exception to the exclusionary rule.

Is there anything to prevent the Court from inventing a new exception to the exception to the exclusionary rule?

Mr. Dreeben: No, Justice Alito, there is nothing to prevent this Court from inventing that exception.

That exception would serve the purpose of encouraging litigants to ask the Court to overrule its decisions and thereby to receive a benefit when they do so.

If it's limited to the first individual who actually succeeds in that endeavor, it would limit the costs of the exclusionary rule, which, after all, result in the exclusion of reliable probative evidence of guilt in every case where it's applied.

And the Court could tailor the exclusionary rule in that manner.

If it did so, it would certainly minimize the costs, and it would represent the least amount of intrusion on the purposes of the exclusionary rule.

But I would caution the Court in this respect.

If the Court were to adopt another purpose for the exclusionary rule, namely creating incentives for counsel to challenge existing precedent, that will represent a substantial departure from this Court's consistent holdings that the only function of the exclusionary rule is to deter police misconduct, and once the Court has acknowledged that an additional exception to the exclusionary rule is justified, even if in these rare situations, it will create pressure for litigants to urge that additional policy interests of the administration of justice would be served if the Court would create yet another exception.

Justice Antonin Scalia: I don't think we'd look particularly good, either, do you?

I mean, if.

We had one case raising a Fourth Amendment question, and let's say six others who raise -- that raise the same question, what would we do?

We would grant the first and hold the second?

No use to hold the second, because they're going to lose anyway, right?

Mr. Dreeben: Yes.

Justice Antonin Scalia: So I guess we would -- we would just grant the first and deny all the rest, even though they're raising the same issue?

Mr. Dreeben: I think the strongest argument against--

Justice Antonin Scalia: It doesn't smell very good.

Mr. Dreeben: --the proposal, Justice Scalia, would be an appearance of arbitrariness in the Court's actions.

Justice Stephen G. Breyer: So that's why, isn't it -- that's why the normal rule has been that the person litigating the case gets the advantage of the new rule, as do other people whose initial appeals are not final, and there we are.

That's a rule existing, I guess, for a long time.

I guess these other people have to have raised the question in their case.

They have to have asked for it.

They can't -- they have to follow normal rules.

Has that caused havoc, or has that caused things -- the legal system, even before--

Mr. Dreeben: Justice Breyer, it hasn't caused havoc, for several reasons.

One is it's extraordinarily rare for this Court to overrule its own Fourth Amendment precedent.

It's apparently equally rare, or almost equally rare, for the courts of appeals to overrule their precedent and adopt a more defendant-friendly Fourth Amendment rule.

I cannot claim to have done an exhaustive survey of all of the courts of appeals decisions that possibly overruled Fourth Amendment holdings, but the results of my research disclose only one case in which a court of appeals overruled its precedent to favor a defendant, and that occurred in 1987 in the Fifth Circuit, and the Fifth Circuit adopted a good faith exception precisely like the one that the government is urging the court to adopt today and declined to suppress the evidence for that reason.

No other circuit has apparently confronted the question of whether overruling a decision triggers the good faith exception.

Justice Stephen G. Breyer: --I would have thought it was more for this Court, actually, anyway.

I don't know if it has to be the words "overruling".

My recollection was: Has the Court created a new rule of law?

I think it goes back to Cardozo, Sunburst or something, that if the Court creates a new rule of law, then does it apply prospective, retroactively?

And the worked-out position was it applies retroactively, but to the litigant and to those whose appeals are not final if they raised it.

Mr. Dreeben: Yes, Justice Breyer.

Justice Stephen G. Breyer: And you want to change that, it seems to me.

Mr. Dreeben: No.

That is the retroactivity question, and the retroactivity question is--

Justice Stephen G. Breyer: You're hiving off the -- the suppression.

I understand.

Mr. Dreeben: --This Court has acknowledged that the exclusionary rule is not an individual right, it's a remedy.

It doesn't involve any violation of constitutional rights of the defendant.

It's a remedy that this Court devised after finding a Fourth Amendment.

And I think, as Justice Ginsburg pointed out, in Judge Kravitch's opinion for the Eleventh Circuit, Judge Kravitch acknowledged that Gant is the law; the search in that case was unconstitutional.

The next question is an entirely separate issue of remedy, and that remedy issue is governed by this Court's good faith precedents.

The rarity with which courts of appeals have confronted this simply reflects the fact that, even without the lack of incentive that Petitioner says will result if the Court agrees with the government today, holdings that overrule Fourth Amendment decisions squarely and favor defendants do not occur all that often.

Justice Ruth Bader Ginsburg: --Were we right that -- there were several cases that were TBR'd in light of Gant.

Maybe some of them shouldn't have been TBR'd under your theory.

Mr. Dreeben: Well, Justice Ginsburg, before the litigation that occurred in the wake of Gant, there was only one precedent on the books in any circuit that I'm aware of that had applied the -- in the Federal system -- that had applied a good faith rule to overrule judicial decisions.

That was United States v. Jackson in the Fifth Circuit.

It's cited in the Eleventh Circuit's opinion in this case.

It happened in 1987.

So I think it's fair to say that prosecutors and government officials were not raising good faith exclusionary rule arguments in the cases that were held for Gant.

I don't believe that the United States had done so, and as a result, it was perfectly logical and in accordance with this Court's normal practice to grant, vacate, and remand those cases for further consideration under Gant.

But in the wake of Gant, courts began to think of the logic of Leon and Krull and this Court's recent decision in Herring v. United States and attempt to apply the logic of those decisions to a circumstance in which a police officer relies on a binding and governing appellate precedent, and they concluded that courts that announce precedents have every reason to expect that litigants will rely on them and that police officers will rely on them.

Therefore, there is no deterrent purpose to be served by suppressing the evidence.

It's all cost.

And the cost would be that individuals whose convictions have been obtained based on evidence that was seized in reasonable good faith reliance on existing appellate precedent will now be able to overturn their convictions, and that's a heavy cost to the administration of justice.

It's why the exclusionary rule has been confined to particularized circumstances where it's thought that it will actually achieve a benefit, and it has not been expanded beyond those purposes.

So given that litigants, criminal defendants, have a tremendous incentive to challenge their convictions and to try to navigate around precedents while simultaneously showing that those precedents may have underlying material flaws, this Court is highly unlikely to be deprived of cases in which litigants attempt to undermine precedents without actually calling for their overruling.

That is what happened, for example, in Batson v. Kentucky, where the Petitioner in that case did not want to head-on confront Swain v. Alabama and ask for its overruling, and as a result asserted that racially discriminatory peremptory challenges were invalid under the Sixth Amendment, rather than the Equal Protection Clause.

This Court got the case and concluded that the proper analysis was the Equal Protection Clause and it accordingly overruled Swain in relevant part.

So it's highly unlikely that if, in fact, a precedent of this Court is beginning to fray around the edges and justices of this Court have written concurrences or dissents that explain that they no longer believe that the logic of that is sound, litigants will exploit those statements in an effort to narrow the precedent and ultimately expose its flaws, so that if this Court determines it can overrule the precedent, and it can do so even if the exclusionary remedy will not follow.

Justice Samuel Alito: Would the rule that you're arguing for apply only in the situation where there is a binding precedent that affirmatively approves a particular police practice, or would it also apply in the situation in which there is simply absolutely nothing on the books that prohibits the police practice, so that a reasonable officer wouldn't have any reason to think that the practice was unconstitutional?

Mr. Dreeben: This case, Justice Alito, only involves the example of binding appellate precedent, and Judge Kravitch's opinion for the Eleventh Circuit distinguished between the two situations.

In the situation in which there is no precedent, such that an officer would not be instructed that his conduct is affirmatively unconstitutional, qualified immunity applies, and there would be arguments that there is nothing to deter if an officer acts within that empty space.

But there is a countervailing argument, and the countervailing argument, which Judge Kravitch talked about in the Eleventh Circuit, opinion, would be that when there's no law on the books courts should give officers to -- an incentive to act in favor of the more constitutionally protective manner, rather than taking a flier on what might turn out to be unconstitutional.

Justice Ruth Bader Ginsburg: She did say that if there is ambiguity, then the police must err on the side of not searching.

Do you think that that's -- do you accept that?

Mr. Dreeben: No, Justice Ginsburg, I would not submit to the Court that the United States necessarily agrees with that.

I think that this case doesn't involve that problem and, as I said, there are contrary arguments that could be advanced based on this Court's description in Herring of the purpose of the exclusionary rule to reach conduct that is either reckless or intentional or at the least systematically negligent.

And, so, some day this Court may have to confront whether the narrow limitation that Judge Kravitch adapted -- adopted in her opinion is the correct rule of law versus a broader view that exclusion is only appropriate when the officers have engaged in truly culpable conduct.

But that's not a bridge that the Court needs to cross in this case.

It's not an argument that the United States is advancing for affirmance of the judgment.

This judgment can be affirmed simply by holding that the syllogism that the court of appeals adopted that, absent a deterrent purpose there is no basis for exclusion, there is no deterrent purpose here, that's sufficient to resolve this case and the Court can leave for another day, if it agrees with that proposition, whether the exclusionary rule should have any broader exception for good faith behavior.

If the Court has no further questions--

Chief Justice John G. Roberts: Thank you, Mr. Dreeben.

Mr. Kerr, you have 6 minutes.

REBUTTAL ARGUMENT OF ORIN S. KERR ON BEHALF OF THE PETITIONER

Mr. Kerr: Thank you.

I would like to start with the costs -- or return to the costs here of the exclusionary rule.

First, the plain error doctrine is going to largely address the concerns that the government has in this case.

If this Court is seeking to limit the scope of the exclusionary rule when the Court overturns precedents under the plain error doctrine, if defendants don't raise a challenge to the search or seizure in their case there will be no relief available to them.

So therefore, the only possible relief that could be granted is for individuals that saw the issue, raised the issue, and that will, of course, include the individual who raises the claim in a case where the Court overturns its precedent, therefore avoiding any of the difficulties similar to that of retroactivity.

Justice Anthony Kennedy: In -- in -- in one -- in one sense if we're talking about costs, the rule the government proposes is -- is defendant friendly, in that this Court may be more willing to impose stricter rules under the Fourth Amendment, if it knows that the good faith rule will protect against the -- the costs of -- of overturning the conviction.

Mr. Kerr: That's exactly right, Justice Kennedy.

And, in fact, that exact argument was one of the reasons Justice Harlan concluded that the exclusionary rule should be available in the first case and on direct review.

The Court needs to be aware of the costs when it overturns precedent.

It should not depart from precedent lightly.

And I think Gant is a good example.

Justice Alito's dissent nicely points out the very real costs of the shift from the Belton rule to the Gant rule, and if there were no costs in a regime of pure prospectivity, the Court would feel much more free to overturn its precedents because no one would actually be affected by the rule of any cases that are either on direct review or in the initial case or of those individuals whose convictions are already final.

Justice Anthony Kennedy: But that could work to the benefit of defendants as a class, not the particular defendant?

Mr. Kerr: That works to the benefit of defendants as a class, absolutely.

In fact, going back to the Linkletter era, that was one of the -- perceived as one of the benefits of Linkletter, that it freed the Court to overturn precedent.

But I think that is an improper consideration.

It is necessary for Fourth Amendment decisionmaking for the Court to accurately weigh the costs and benefits of any shift in the rules.

And so I think that the costs of the exclusionary rule in that setting are actually necessary costs.

And I also think concerns of a windfall that are available to defendants are overstated because of the many doctrines that limit the scope of the exclusionary rule such as inevitable discovery or standing.

Actually the only individuals who would receive the benefit of the exclusionary rule would be those individuals who were not searched in the first place if the Constitution were followed.

So, those are individuals who actually did not receive -- will not receive a windfall.

They will essentially, if they were lucky enough to raise the issue, go back to the state that they were before the Constitution was violated.

And again, that's a limited group of people, and those are, I think, the necessary costs required by the basic norms of constitutional adjudication that Justice Harlan raised in his dissent in Desist v. United States, and I think in a lot of ways this case does return to those concerns of Justice Harlan, raised both in his Desist dissent and his separate opinion for the Court in Mackey v. United States.

I also wanted to focus on how similar the issue is in this case to -- in the Linkletter era, if you read the Desist dissent, in particular Justice Harlan's dissent, it's clear that he's considering the issue of retroactivity to be about the scope of the exclusionary rule.

The Eleventh Circuit below had this idea that retroactivity is about the availability of a rule, but rules are not sort of ephemeral ideas that are available or not without any impact.

It must be that if they are available, they are available independently of when they were announced and should be enforced accordingly.

If there are no further questions--

Chief Justice John G. Roberts: Thank you, Mr. Kerr.

The case is submitted.

Transcript: 

Justice Alito: This is a case from the United States Court of Appeals for the Eleventh Circuit.

In the course of a routine automobile stop, police officers lawfully arrested a passenger in the car, petitioner Davis, and then conducted a search of the car.

The police found a gun that belongs to Davis, and Davis was indicted and later convicted in federal court on the charge of possession of a firearm by a convicted felon.

At the time of the search in this case, binding Eleventh Circuit precedent had interpreted one of this Court's Fourth Amendment cases, New York versus Belton to authorize vehicle searches like the one conducted here, a vehicle search incident to a recent occupant's arrest.

Two years later, while Davis' appeal in this case was still pending, this Court rejected the Eleventh Circuit's interpretation of Belton in a case called Arizona versus Gant.

The parties agree that under Gant, the vehicle search in this case violated the Fourth Amendment.

The question before us in this case is whether the evidence obtained during the search, the gun, should be suppressed under the exclusionary rule.

This Court has long recognized that the exclusionary rule is not a personal constitutional right but a prudential doctrine, the sole purpose of which is to deter police misconduct.

The rule applies only when the deterrent's benefits of suppression outweigh its costs.

Thus, this Court's cases upheld that when the police conduct a search in objectively reasonable reliance on the subsequently invalidated search warrant or statute, exclusion of evidence is unwarranted.

We now conclude that the same result should obtain in this case.

When the police conduct a search in objectively reasonable reliance on binding judicial precedent, the exclusionary rule does not apply.

Suppressing evidence in such cases would deter no police misconduct and would impose substantial costs.

In cases like this one where the applicable precedent is a decision of a Court of Appeals, this rule will not prevent the development of Fourth Amendment case law since challenges may be brought in other Circuits.

We do not reach the question whether a particular petitioner who obtains the overruling of one of this Court's Fourth Amendment precedents should have the benefit of the exclusionary rule.

The judgment of the Court of Appeals for the Eleventh Circuit is affirmed.

Justice Sotomayor has filed an opinion concurring in the judgment.

Justice Breyer has filed a dissenting opinion in which Justice Ginsburg has joined.