United States v. Gonzalez

рrotection. of for CAT We conclude eligible finding probability of clear compel a Therefore, we find supports evidence IJ’s that substantial persecution. future whole, that, viewing the as a record Tamang when not merit CAT finding support exists to evidence substantial protection. fear Tamang’s perceived finding

IJ’s rea- objectively persecution of future CONCLUSION sonable. PART, DENY IN IN We DISMISS Tamang’s petition for review of the PART III. CAT PROTECTION asylum, withholding of denial of re- IJ’s of turn to the denial CAT finally We IJ’s moval, protection. and CAT for request protection. support To his on the relies protection, Tamang CAT arguments submitted

same evidence of re- asylum withholding

support of

moval. protection, qualify

To for CAT likely must show it is more petitioner if tortured

than not he or she would be origin. 8 country America, of removed UNITED STATES 208.16(c)(2); § Morales v. Gon C.F.R. Plaintiff-Appellee, Cir.2007). zales, F.3d likely standard “more than not” same GONZALEZ, Defendant- Ricardo protection as it does applies to CAT Appellant. removal; however, for CAT withholding of harm must meet the protection, the feared No. 07-30098. Additionally, unlike definition of torture. Immi Appeals, removal United States

withholding of under Act, Nationality withholding of gration and Ninth Circuit. entirely

removal under CAT based March fear; objective subjec basis of there is petitioner’s to a fear of component tive Hanlon, U.S., John Assistant Thomas Therefore, of relevant torture. evidence Yakima, WA, Attorney, of the U.S. Office extremely important, country conditions is Plaintiff-Appellee. for safely relo ability Tamang as is the Pennell, Esquire, Louise Rebecca Assis- part country cate to another of his Defender, Federal Public Federal De- tant 208.16(c)(3). origin. § 8 C.F.R. Idaho, Washington Eastern & fenders of stated For the same reasons Yakima, WA, Defendant-Appellant. removal, the withholding under above compel conclusion record does not protection. Tamang

Tamang merits CAT allege or even present

fails to likely by or most be tortured FLETCHER, he would BETTY Before B. of acquiescence government with the PAEZ, A. and N. RANDY RICHARD person acting ficial an official or other SMITH, Judges. Circuit 1208.18(a)(1). § As capacity. 8 C.F.R. FLETCHER; B. Judge factfinder Concurrence

such, hold a reasonable Tamang by Judge BEA. ‍‌​​​‌​‌‌​‌‌​‌‌​‌​​​​​‌‌​‌‌​​‌‌​​‌​​​‌​​​​​‌​‌​‌​‍compelled find Dissent would not be Belton, nouncing ORDER new rule and overruling the Court that explained precedent our deny has voted the Petition had misinterpreted Belton that ignoring Rehearing. Paez and N.R. Judges for Belton progeny is the of Chimel v. deny the have voted to Petition for Smith Califor nia, 752, 2034, Banc, Judge En B. Rehearing and Fletch- (1969). We had “unteth so er has recommended. justifications er[ed]” Belton “from the un petition The full court of the was advised derlying exception,” the Chimel al which A rehearing judge requested en for banc. arrests, lows incident searches to lawful on hear the a vote whether to matter en but solely limits those searches “the banc. The matter failed to receive a ma- person arrestee’s and the area ... within jority of the of the nonrecused votes active might possession weap which he gain banc judges favor of en consideration. on or destructible evidence” at time of Fed. R.App. P. 35. Gant, 1716, search. 129 S.Ct. at petition rehearing peti- and the (citation omitted). quotation marks for rehearing tion en are DENIED. banc Supreme granted Gonzalez’s FLETCHER, PAEZ, B. and N.R. certiorari petition, vacated our de SMITH, Judges, concurring Circuit cision, and remanded us “for further of rehearing denial en banc: light consideration in of Arizona v. Gant.” — Judge presents Bea’s dissent a distorted Quintana States, U.S. -, v. United of what view this case is about. 2156, (2009) 129 S.Ct. 173 L.Ed.2d 1152 response can requires part that of the (citation omitted). In our decision re public record. our panel’s Otherwise rea- mand, faithfully we followed its instruc response soned en banc call would tions. We Gant consistent with remain hidden from view. public Supreme precedents Court’s original At the time disposition, of our application of the rule and on Court had not decided Ari- retroactivity. See United States v. Gоnza —Gant, -, v. zona 129 S.Ct. lez, Cir.2009). 578 F.3d 1130 1710, 173 L.Ed.2d Our circuit Judge pronouncement Bea’s bold Belton, interpreted v. New York States, disregarded Herring v. United (1981), 101 S.Ct. 69 L.Ed.2d 768 — U.S. -, 172 L.Ed.2d allow law enforcement search the (2009), and Illinois v. passenger compartment of a vehicle so long as the “roughly search was contempo- is wrong. raneous with’ the arrest” the vehicle’s Indeed, we the teaching followed occupant. Weaver, United States (9th Cir.2006) (citation Herring Court that “the benefits of deter- F.3d omitted). outweigh rence quotation must the costs.” marks Accordingly, Gant, original disposition our its at 700. In con- that in cluded Gonzalez, search Defendant Gon- cases such as benefits zalez’s vehicle did not violate the Fourth outweigh deterrence do the costs. It held Amendment. where, Gant, as in “it is clear unlawful, practice a[law enforcement]

While petition Gonzalez’s for certiorari individuals’ interest its discontinuance pending, Court decided clearly outweighs ‘en- holding that a number of state and courts, ours, persistence.” federal titlement’ to its including improp- had erly interpreted Far Belton. from an- S.Ct. at 1723. Because the unconstitution- and this case was unconstitutional that the evidence ality of the searches Gant “clear,” suppressed. never seized should be They were unlawful ab have occurred. When the Court clarifies the a Gant held that consequence, As initio. search in boundaries constitutional trumps such searches deterrence fairness, case, one clarification that Judge argument Bea’s of exclusion. costs consistently must applied be to cases of the is to support dissenters Gant yet final. was policy are not That with disagree avail. Let him the Su- Johnson, 537, 457 102 applied in Court, must, if not with our he but preme 2579, Kentucky, v. Griffith to Court’s dictates. adherence 314, 708, 107 part, inapposite. for its It con- question The was whether Johnson reliance on a stat- law enforcement’s cerns York, Payton New v. not the law. interpretatiоn ute and case (1980), L.Ed.2d controlling authority for this case was The retroactively applied be to exclude evi- Johnson, v. States pending appeal. dence in cases on direct not government argued The that the exclusion- by Judge Bea. The Krull as advocated ary should not apply to evidence correctly followed Johnson. seized in good-faith pre-Payton reliance on Finally, the should bear in mind reader quote rejection law. We Court’s case with defendant’s this deals that argument: by an suppress evidence obtained right The Government [relies] [United It does in- not unconstitutional search. language: Peltier's broad “If v.] States who conducted volve whether the officers of the rule is to purpose qualified are immu- the search entitled deter unlawful conduct then evi defendant, rights of the nity. dence obtained from search should be issue. police, of the are at those if it suppressed only can be said persists disciрline in its view dissent knowledge, law officer had is at rather than individual issue may properly charged or with knowl (“Here, See Dissent at 1109 rights. edge, that the search was unconstitution application confuses the retroactive (em al the Fourth Amendment” under Court decision area of added). The phasis Government reads (a rights jury picked without individual this that new language require motivation) is an racial with what area of de Fourth Amendment rules must be rights (suppression evidence to societal except nied retroactive effect in all cases discipline police).”). those in which law enforcement officers good-faith compliance act in failed to

I then-prevailing with constitutional precedents that controlled our deci- norms. those dealing sion Gonzalez were theory, ... be- retroactivity. that when the Government’s agree All Gant Under decided, the state of Fourth Amendment defendant Gonzalez’s convic- cause yet home arrests agree regarding had not final. All warrantless tion become Gant, that rul- Payton, our was “unsettled” before that under the search retroactively Looking ing apply should not even unconstitutional. the Su- precedents retroactivity, pending appeal on direct when cases preme Court’s Payton was decided. holding that we reading holding Compare of Peltier Court’s Yet the Government’s Belton. State “retroactivity would reduce its own test” Ariz. P.3d view, absurdity. to an Under (2007) (“We (majority opinion) do not ... rulings worthy Fourth Amendment abandoning read Belton or Thornton as application are those in of retroactive justifications the Chimel for the search pre- arresting which the violated exception.”), incident to arrest with id. at clearly existing guidelines established (“The (Bales, J., dissenting) validity of above, prior But as have seen cases. clearly Belton search ... de- simple involving application cases of pend on presence rаtio- Chimel clear, pre-existing Fourth Amendment ease.”). particular nales a As does guidelines questions raise no real of ret- Bea, Judge the United States Johnson read, Literally roactivity at all. the Gov- argued excluding that evidence seized theory would automatically ernment’s Payton violation of would not appreciably Amendment rulings eliminate all Fourth deter police misconduct. That argument from appli- consideration retroactive made, firmly and the Johnson Court cation. it; rejected compelled our to do claim [next] The Government’s is that so also. that logic suggests Peltier's retroactive was decided application of Fourth Amendment deci- Griffith —which after recognized good-faith Payton sions like even cases pending Leon, exception in United States v. on direct review—would not serve 468 policies 897, 3405, underlying exclusionary U.S. 104 S.Ct. (1984)

rule.... “holding Johnson’s —reaffirmed ‘subject that exceptions], [certain deci If, sion сonstruing of this Court argues, as the Government the Fourth rulings Fourth resolving unsettled applied retroactively Amendment Amendment is to be questions nonretroactive, to all yet convictions that were not final at ” then, cases, close the time the was rendered.’ decision 479 little officialswould have incentive to err 324, U.S. at 107 708 (quoting S.Ct. John on the side of constitutional behavior. son, 562, 2579). 457 U.S. at Like Official awareness of dubious consti- Johnson, explicitly considered and re “ tutionality practice would be coun- jected ‘reliance law enforcement au ” that, certainty terbalanced official so thorities on the old standards’ ‍‌​​​‌​‌‌​‌‌​‌‌​‌​​​​​‌‌​‌‌​​‌‌​​‌​​​‌​​​​​‌​‌​‌​‍as a rea long as the Fourth Amendment law in apply son not to Fourth Amendment unsettled, the area remained evidence retroactively. 324-25, Id. at questionable through prac- obtained Johnson, S.Ct. (quoting only tice would be excluded the one 549, 102 2579). S.Ct. Johnson and Griffith definitively resolving the unsettled compel the result the reached. question. Failure to accord retro- Judge Bea on United relies States v. active effect to Fourth Amendment rul- Peltier, 531, 2313, ings “encourage police or other (1975), courts L.Ed.2d 374 which disregard plain purport apply declined to our adopt States, decisions and to a let’s-wait- meida-Sanehez Al approach.” until-it’s-decided (1973), retrospectively. light In of John (cita- 559-61,

457 U.S. at 102 S.Ct. 2579 son, omitted). we think misplaced. his reliance Payton, tions Like Gant clari- point fied a Johnson clear that of law that the Court Court made Peltier's had not yet explicitly scope addressed: holding applied to cases to believe the contains reasonable sharp break web “work[ed] offense arrest.” law.” 457 U.S. omitted). holding (citation prompted marks quotation 129 S.Ct. at This holding stated that its majority vigorous dissent: The Gant Gant, 129 break. See no such worked taught po- rule has The Belton been (reasoning that 1722 & n. 9 a quarter for more than lice officers from holding straightforwardly followed сentury. Many searches' —almost cer- of Belton and facts Chimel than a tainly including more few States, Thornton v. United appeal on figure in cases now —were 158 L.Ed.2d scrupulous reliance on that conducted distinguished”). arguing In “easily were that, very likely It is precedent. otherwise, Judge Bea sides the Gant announced, day opinion when this nu- (Alito, J., dis- id. at 1726 dissenters. See searches will be conduct- merous vehicle (contending majority’s hold- senting) who ed rule”). ing a “new created rule. taught the Belton argue Krull also Judge Bea relies J., (Alito, dissenting). at 1728 Id. in this of evidence against the exclusion however, majority, dealt with law enforcement case. Krull in agree with the contention Justice statute, like stat- on a which most reliance Alito’s ... that dissent consideration utes, of constitu- presumption carries the requires a police reliance interests dif- tionality. 107 S.Ct. 1160. appears it that Although ferent result. Here, contrast, relied enforcement law reading the State’s of Bеlton has been that misapplication of Belton Gant on widely in taught academies and unconstitutional; “elear[ly]” Bel- deemed that enforcement officers have relied ton, interpreted, would properly when conducting the rule in that in along the searches Gant counsel during years, many past unconstitutional. and Gonzalez were justified by of these searches were Gant, 129 at 1723. S.Ct. underlying the [search-inci- reasons the fact remains fundamentally, More exception.... The fact dent-to-arrest] in that when the Court Johnson community the law that question precisely was faced with Bel- may view the State’s version it held that the ex- panel, our confronted rule does not es- ton as an entitlement clusionary pending rule to cases tablish the sort reliance interest directly appeal. Johnson controls. direct outweigh countervailing could inter- such time as the were to over- Until Court having in est all individuals share Johnson, it is and not Krull rule Johnson If rights protected. their constitutional follow. that must unlawful, practice that a it is clear interest in its discontinuance individuals’ II clearly outweighs any law enforcement directly sup- panel’s decision is persistence. to its “entitlement” itself. In the Su- ported Gant (footnote omitted). The at 1722-23 Id. Belton, interpreted preme Court majority precisely ruled as it did Gant to allow a vehicle S.Ct. “interest that all individuals because the to an arrest of the vehicle’s search incident rights having their constitutional share only where the “arrestee is with- occupant good-faith “police re- outweighs protected” passenger com- reaching distance of short, In the search or it is liance interests.” partment at the time of already that in has a case and dictated The court right Gant. ours, “the exclu- deny such as benefits” of the rehearing. en banc sionary “outweigh the costs.” Her- BEA,

ring, Judge at 700. with whom O’SCANNLAIN, KLEINFELD, GOULD, say, Judge is no as answer TALLMAN, BYBEE, CALLAHAN, Bea, majority and the dissent join, Circuit Judges, dissеnting from denial arguing about stare decisis and not of rehearing en banc: ... “clear[ly] deterrence of unlawful” searches. 1723. The I dissent petition from our denial majority that it expressly stated was not first, banc, rehearing en because the Belton, overruling see id. at n. and decision disregards the recognized implicitly thus also that the in Herring Court’s decisions v. United little, any, doctrine of stare had if decisis — States, U.S. -, 695, 700, (“[W]e id. at 1722 force Gant. See (2009), and Illinois v. particularly uphold loath to unconsti Krull, easily tutional result in case that is so regarding when distinguished argu from the decisions that justifies misconduct suppression of rele ably compel it.... It is thus unsurprising trial, vant a criminal and sec that Members of this who concurred ond, the panel’s because decision creates a judgments Belton Thornton split among the circuits. See United case.”). also concur the decision McCane, States v. 573 F.3d 1037 point disagreement The flash between — Cir.2009), denied, 09-402, cert. No. majority and in the dissent Gant was not U.S. -, 1686, 176 L.Ed.2d “police so much stare decisis as reliance (Mar. 1, 2010); 78 U.S.L.W. 3221 United interests.” See id. at 1722-23. Justice Jackson, States v. 825 F.2d 853 Cir. about suppression Alito’s concern “the of 1987) (en banc). gathered many in evidence car searches out in good-faith ried reliance on well- I. Introduction law,” (Alito, J., settled case id. at 1726 The has evidence dissenting) (emphasis added), demon police seized officer in acting suppression strates that Gant about predominant faith reliance interpre- just constitutionality evidence and not Supreme precedent tation of Court the search. suppressed, despite be sup- the fact that majority opin- That the dissenting and pression in this conceivably case cannot ions should have clashed over the exclu- in appreciable result deterrence of future sionary Gant, rule not surprising, for in police misconduct. does it po- How deter the Arizona Supreme simply Court had not lice misconduct the future to tell the unconstitutional, declared the search but police: “the you legally, evidence seized had also ordered the exclusion of evi- under the cannot used because the Gant, dence. State v. By 162 P.3d at 646. now, changed, law has and what wasn’t affirming Court, the Arizona Supreme you misconduct at the time has acted be- necessarily affirmed exclusion of police- come misconduct”? The attentive the evidence. man well hearing might blankly look III ask: I supposed “Who knew? Am panel’s The compelled decision guess? What am I supposed do next Supreme retroactivity precedents Court’s time? Not follow the as law written him to make Circuit, pretation little? How of Belton—allowed hold back a but Ninth that search. much?” Gonzalez moved at trial Defendant is in direct conflict The suppress pistol the 9mm evidence of holding Court’s recent with during Officer Garcia seized his search exclu Herring “[T]he v. States: court district denied vehicle. right sionary is not individual suppress; motion affirmed. appreciable it results where applies police misconduct].” deterrence [of Court then announced its and altera — (quotation at 700 marks S.Ct. Gant, U.S. -, decision Arizona v. omitted). justifica the sole Because tions until exclusion relevant tion-up now-for which such ‍‌​​​‌​‌‌​‌‌​‌‌​‌​​​​​‌‌​‌‌​​‌‌​​‌​​​‌​​​​​‌​‌​‌​‍unconstitutional. held has been to seized improperly evidence in opinion in the vacated our misconduct,1 the Su deter future it stant and remanded back to us held is not Court has preme light to consider the case in instruction remedy when an available ruling its Note that the Court Gant. faith reliance a search conducted result in this case did not reach same as a authority, such war higher some upheld it it suppres as had in where statute, warrant or even if the rant or the evidence. and re sion of vacated or unconsti later held invalid manded; statute courts did not order lower (the exception”). “good tutional pos suppress evidence Gonzalez’s (stat 340, 107 480 U.S. 9mm pistol. session of the Leon, utes), United States following On remand (1984) (war 3405, L.Ed.2d 677 correct- Court’s decision rants). Here, relied on officer ly that the search was unconstitution- namely the set authority, kind of different believe, but, incorrectly al I held that Belton, York v. case law under New tled exception apply, therefore ordered the (1981); see States also United pressed. Weaver, 1104, 1106 433 F.3d Cir. suppres- To its in favor of reach result Belton). 2006) (our adoption circuit’s sion, police that a officer’s panel holds lawfully stopped Garcia vehicle Officer case law somehow reliance on settled Gonzalez occupants. four Defendant police officer’s reliance different from in the vehicle. riding passenger as a (Leon) or statute warrant reasonable secure apparently After (Krull). But, explain not officer, any to and the risk against opinion or its concurrence either in its away banc, had moved from occupants vehicle’s rehearing en denying from the order vehicle, reason, why Garcia searched Officer possible and I can fathom no appli- Gonzalez’s 9mm a rule vehicle and discovered it found a difference between warrant, magistrate’s later glove compartment. in the to a pistol cable (Leon), search, later that, inadequate or statute at the time of the found undisputed (Krull), and faith found to be unconstitutional acting Garcia was Officer later circuit court found inter- predominant that the law—the belief J., (Ginsburg, at dissent- Herring, 707-08 Ginsburg, in her dissent 1. Justice ing). applying rest its justifications for Since offered alternative rule, they Ginsburg’s thoughts, Justice justifications but those here be discussed. adopted Court. need not been (Gant). longer allow the search in question other individuals’ Fourth Amendment It is not for police rely misconduct rights. on a reasonable warrant even if the war- Suppose that at the next opportunity to Leon, rant was latеr held invalid. 468 U.S. matter, consider the the Court were to 104 S.Ct. 3405. Nor was it miscon- determine that objec- automobile stops on duct rely for the on a reasonable tively e.g., reasonable expired li- bases-— statute, even if the statute is later held plate cense registration tags, burnt out unconstitutional. 480 U.S. lights, rear etc.—but actually motivated 107 S.Ct. 1160. We encourage our by police officers’ desire to investigate the officers to act within the bounds of the law cars’ occupants interiors, were no as magistrates defined legislatures. longer valid, constitutionally thereby over- Peltier, 531, 542, States v. ruling States, Whren v. United (1975). 45 L.Ed.2d 374 Why then should we make actions futile Routine traffic stops and other searches when those actions are fully accord with permitted under Whren have become a the settled decisions of our courts when staple in law enforcement’s arsenal of the actions are taken? I submit we should crime-fighting tools. Would all many not. pending foundеd cases on evidence re- Supreme Court, moreover, has al- trieved in such subject searches be to re-

ready said so: “[U]nless we are to hold versal? That is precisely principle that parties may not reasonably rely upon which is being adopted by the panel’s deci- any legal pronouncement emanating from sion. Court, sources other than this we cannot predictable effect de- regard as blameworthy parties those who cision will be to undermine officers’ conform their conduct to the prevailing ability to catch prosecute criminals. statutory or Peltier, constitutional norm.” First, the panel’s decision deprive will 95 S.Ct. 2313. There is no prosecutors of inculpatory that, dispute before the Supreme Court porting prosecutions numerous and convic- the prevailing pre- —even tions of criminals whose cases pend- dominant —constitutional norm under Bel- ing at the time Gant was As decided. ton—as this Circuit Weav- Government contended in petition its er—was permit vehicles, searches of rehearing en banc: important “[I]t is including glove compartments, even if the recognize that Belton searches defendant were a fix- suspect or was not within arm’s ture in law prior reach of the vehicle and Gant. The the contents of the panel’s vehicle could not thus has potential the reasonably present a risk disrupt to the arresting numerous officer. convictions ongoing There and was noth- ing prosecutions blameworthy, rely and certainly nothing evidence ob- flagrant, what tained in about Officer Garcia Belton searches did. conducted con- See Herring, 129 S.Ct. at sistent with (holding decisions of this Court.” the exclusionary Second, rule arose from “flagrant panel’s opinion generate will and deliberate” violations rights). ongoing of I am uncertainty among police officers at a grasp loss to how about ability of the their to follow the dеcisions of evidence Officer Garcia court, discovered while or even Supreme Court, properly doing job, his within the bound- without finding their work has been aries set by the law as existed, it then will for nought. This uncertainty will most deter other officers from violating likely cause officers to act overly criminals, the evidence discovered suppress moved to thus endan- pursuing cautious may also have The safety. during But it the officer’s search. district public gering frustrating jury of so A perverse effect the motion. found court denied may simply ignore our they possession officers that of firearm guilty Gonzalez have hope may changed it charge, he sentenced to 70 and This and result appeal. time trial imprisonment. months’ endanger public safety appealed his conviction and Gonzalez amount of evidence increasing the sentence, contending in that the dis- part also endan- but would suppress, courts will his denying trict motion to court erred rights. Fourth Amеndment public’s ger affirmed, suppress. holding The lining If a silver there is Belton, lawful under search was Supreme Court case decision to flout Weaver, 2860, the panel it is that Herring F.3d at 1106. Court to stage for the has set the exclusionary rule scope of the review the then Ari- The — circuit now light split -, zona v. panel’s opinion reaches created. which ex- directly contrary to that of conclusion predominant inter- pressly narrowed the McCane, 1037, which held the F.3d courts, Belton circuit hold- pretation to searches exception applies ing a incident to arrest search vehicle opinion held unconstitutional Gant. compartment may passenger the' include Jackson, 825 also in conflict with direct only if “arrestee unsecured or within excep F.2d which passenger of the com- reaching distance warrantless searches con tion search,” the time id. at partment at when, at the the border time ducted near it is to believe or “when reasonable they were valid place, took the searches of arrest that evidence the offense later under Fifth Circuit cases vehicle,” might id. at 1714. be found by that Circuit. overruled the panel’s Court vacated reasons, I respectfully For dissent these Quintana v. light decision in of Gant. en banc. rehearing from the denial — States, -, The Court Back- II. and Procedural Factual with to enter a did not reverse instructions ground acquittal nor did judgment of for Gonzalez stopped lawfully vehicle Officer Garcia lower to effect a courts order passen- occupants. four One pression of the evidence. Rivera, Silviano had several out- gers, remand, conceded government On arrest. Garcia standing warrants his was unconstitutional under custody other placed Rivera Gonzalez, F.3d States v. Gant. United vehicle. Officer passengers exited the (9th Cir.2009). The govern- and discovered Garcia searched contended, however, this ment Circuit glove unlocked pistol loaded in the 9mm de- the court’s order should affirm district occupants female compartment. two suppress be- nying Gonzalez’s motion the firearm be- told Garcia of conducting the search did cause the officer occupant, fourth defendant longed to the then-prevailing inso faith reliance on Gonzalez was arrested Ricardo Gonzalez. prece- Circuit Supreme Court and Ninth posses- a felon being charged trial, that the officer dispute dent. There is At Gonzalez of a firearm. sion authority acting faith at the time of the under the of acting settled law, including search. case law from courts other Supreme than Court. U.S. Amendment, the Ex- III. Fourth 2313. If turns out to be clusionary Rule, and the Good it wrong, then was the court that was at Exception. Faith fault, police not See officers. id. Although undisputed Therefore, is here suppress- there is no benefit to search turned out be unconstitutional ing the evidence in this сase. cost of Gant, finding the search unconstitu- moreover, under obvious; suppression, is Gonza- automatically invoke tional lez—a criminal of being convicted felon exclusionary as to un- rule the evidence in possession goes free. On firearm — in Herring, earthed the search. As balance, there is benefit an zero obvi- unconstitutionality of is finding suppressing ous cost to the evidence. The step step analysis. in a first two suppressed. evidence should not be is to step The second decide whether Although this cost-benefit calculation is suppressed. such evidence be should component an exclusionary inherent Leon, 104 S.Ct. 3405 rule, explained Court has (“Whether ap- sanction is when officers act in propriately imposed case, in a particular search, when conducting objectively their clear, our decisions make is an sepa- issue reasonable belief is sufficient to show the from question rate whethеr the Fourth away suppression. balance tilts from rights party seeking Amendment (“We Herring, 129 at 701 (perhaps invoke the rule were violated confusingly) called objectively this reason- omitted)); (quotation conduct.” marks see ”). ‘good able reliance faith.’ articu- Cases (“We Herring, also lating “good exception” fall into repeatedly rejected the argument that ex- categories. two category The first in- necessary clusion is a consequence of a cludes cases where there was some error violation.”). Fourth Amendment issuance a warrant used exe- “When evidence obtained violation cute the Herring, search. See S.Ct. at Amendment, Fourth judicially (holding that evidence developed exclusionary usually pre- suppressed county where a warrant clerk cludes its use in a proceeding criminal mistakenly told officers there was out- against the victim the illegal search and defendant, standing warrant on file for but seizure.” 480 U.S. at later discovered her error: the warrant But, remedy of exclusion “has had been recalled before its use been restricted to those situations which Evans, officers); 1, 15, Arizona v. its purpose effectively remedial ad- (1995) Herring, vanced.” Id. In (holding that evidence should not be Court made clear that for courts to sup- pressed comput- where relied on a press evidence “the benefits of deterrence er database which showed the defendant outweigh must the costs.” 129 S.Ct. at warrant, had an outstanding arrest but later update learned court clerk failed to the database to show the defendant’s war- Suppressing evidence Gonzalez’s fire- quashed); rant arm had been any apprecia- here would not result in States Leon, 897, 919-20, ble deterrence of misconduct. As (1984) Peltier, explained (holding that evi- nothing wrong there is with police suppressed officers dence should not be offi- where omitted). “The applica pur- (quotations searched defendant arrested and cers warrant, rule to exclusionary suppress but a tion of the facially lawful to a suant warrant lacked acting later held the an officer judge evidence obtained district cause). These are instruc- cases on a probable objectively reasonable reliance statute has re- Court tive because little effect would have as deterrent on purpose that the sole emphasized peatedly as officer’s actions would exclusion future exclusionary rule is to deter in objectively an acts evidence when officer police searches. unlawful at reliance on a Id. reasonable warrant.” 349, 107 1160. however, S.Ct. is, category second here; this cate- that more relevant cases As no deterrent the Court could discern cases where law gory includes suppression effect would on offi- a statute a search under officers cоnduct cers, question it turned to the whether unconstitutional. that was later determined suppression legislators would deter from 1160; Krull, or enacting ignored statutes that subvert- 31, 38, 99 Michigan DeFillippo, 443 U.S. ed the Fourth Amendment. See id. at 2627, L.Ed.2d 343 S.Ct. The 1160. Court there was S.Ct. appealed of Illinois In the State “act as evidence suppressing order evi- the trial court’s significant, additional deterrent.” Id. at an administrative during dence discovered Hence, 1160. “substan- warrantless) to Illi- (i.e., pursuant search excluding inculpatory tial cost” of social regulated statutory regime which nois’s against letting defendants — automobiles and automobile ‍‌​​​‌​‌‌​‌‌​‌‌​‌​​​​​‌‌​‌‌​​‌‌​​‌​​​‌​​​​​‌​‌​‌​‍the sale of guilty outweighed any incremen- go free— an ad- A officer conducted parts. effect, tal deterrent which convinced of the records of ministrative search applying Court that wrecking yard and discovered automobile 352-53, unjustified. Id. at property. on three vehicles stolen 1160; at DeFillippo, see also federal court held following day, a district (“Police charged are to en- authorizing such admin- the Illinois statute they de- force laws until and unless are was unconstitutional. istrative Society would clared unconstitutional.... and ordered agreed The state trial court if its be ill-served took The Illinois Su- suppressed. the evidence which laws upon themselves determine affirmed, ap- State preme Court constitutionally are are not enti- and which Court. pealed the U.S. enforcement.”).2 tled reversed, holding McCane, In 573 F.3d Cir. applied to exception faith 2009), Tenth addressed the Circuit to a statute pursuant searches conducted Gonzalez; presented in precise situation “obvious[ly]” unconstitutional. exception it held 359, 107 1160. 480 U.S. at A apply. F.3d officer suppressed should be held: “evidence stopped suspicion driving McCane law enforcement if it can said that the officer arrested suspended license. The knowledge, may properly be officer had or him, McCane, placed him handcuffed knowledge, that search charged with patrol car. The officer back of the Fourth was unconstitutional under 359-60, vehicle and dis- then McCane’s searched Id. Amendment.” a local using was executed under ordinance and not Although decided before Leon be unconstitutional. exception language, DeFillippo that was later found to 99 S.Ct. 2627. suppression of evidence where denied covered a firearm in pocket of the ble—cause searches could not there be driver’s side door. McCane moved performed. Id. at Nevertheless, 854. press the evidence of the firearm. The court affirmed the convictions, defendants’ court district held the search was valid. based on the evidence seized during war- While appeal McCane’s was pending, the searches, rantless because the “searches Supreme Court decided Gant. The Tenth were in good conducted faith upon reliance Circuit held the search was unconstitution- [the Fifth Circuit’s] earlier decisions.” Id. al, but affirmed good based faith The court held reasoning “[t]he of Leon exception rule. fully applies to the case at hand.” Id. at

First, Tenth Circuit court its noted that it upheld had precedent was well-settled that searches the checkpoint numerous searches incident to arrest i.e., were lawful the law was well-settled—and times — Belton, under if even the arrestee was there was no suggestion the Fifth secured and offered no danger to the ar- Circuit was ignore “inclined to or subvert resting officer at the time of the search. the Fourth Amendment.” Id. (quoting The court then held the faith excep- Leon, 3405).3 tion applied because suppressing evidence Despite cases, these held the during discovered a search that was con- good faith exception not apply because stitutional law, under settled itas existed Krull was limited to searches conducted at the search, time of thе would not deter under statutory authority and did not ex- law enforcement officers from conducting tend to searches conducted under well- unconstitutional searches. The exclusion- settled case precedent. course, Of ary rule is meant to “deter objectively Krull dealt only statute-based unreasonable conduct” and “to deter search. The Court nothing said about a misconduct by law officers, search based on settled case nor that McCane, other entities.” 573 F.3d at its holding could not be extended to the 1044. Because “no deterrent effect would latter. The panel provides a curious rea- result from suppressing the evidence son for Krull; its disregard of it chooses to seized from vehicle”, McCane’s the Tenth pre-Leon follow a case before “good Circuit apply declined “to the exclusionary exception” developed, Johnson, rule when law enforcement officers act in rather than a post-Leon “good excep- objectively reasonable upon reliance tion” case. But the gives no reason settled case law of a United States why we should treat our decisions as lesser of Appeals.” Id. at 1045. law under faith exception than Jackson, In the defendants statutes or regulations. administrative searched at a highway checkpoint pri To away clear any confusion, or Fifth Circuit cases had the exis- deemed a func tional tence of a equivalent relevant court border, ease supporting thus ex cepting police officer’s search from the automatically warrant requirement. prove he Id. acting 854-55. In an en faith where banc decision, the Fifth Circuit is later disap overruled. A police offi- proved its earlier cases and cer must prove held the still that his reliance was was, checkpoint indeed, not objectively border reasonable. That problem, equivalent. Warrantless and no-proba- however, is no different from the problem I do not think this circuit is more in- Fifth Circuit. clined subvert the Fourth Amendment than

1107 Johnson, 555, 457 (quoting at 1132 U.S. at face when decid- law enforcement 2579). that principle, 102 S.Ct. Guided obviously unconstitution- ing if a statute is 355, Krull, 107 must panel U.S. at held firearm be al. See (“Nor officer a law enforcement pressed can in Gonzalez because cocaine reliance good-faith acted reaching said In suppressed was Gant. provisions are however, a if its such upon conclusion, statute panel ignores that should have that a officer reasonable similarly Gant and Gonzalez were situ- statute was unconstitution- known that the govern- ated in crucial determinant: al.”). problem recurs when the same And exception raise the faith good ment did not whether a officers decide law enforcement case, but it did this case. Gant’s facially that the was so deficient “warrant Therefore, it is to reconcile simple John- reasonably executing pre- officers cannot son with Krull. Johnson holds defen- (quotation marks sume to be valid.” Id. dants, cases pending whose are the time omitted). case, objectively In this rea- decision, law-changing be enti- no basis for would have sonable officer 545, tled to invoke the rule. Id. at new the Ninth Circuit’s well-settled suspecting Gonzalez has S.Ct. 2579. invoked obviously un- of Belton was interpretation new announced in and that rule rule Gant Weaver, 433 F.3d at constitutional. See case; to his the search of apply Gon- 1106. car, car, zalez’s like the Gant’s But, was unconstitutional. once Gonzalez Retroactivity Apply Do Not IV. Cases Gant, has the rule in the Govern- invoked Ap- Be Here the Rule to Because invoke good ment still entitled to (Gant) Retroactively plied Does faith and it has done exception, so here. Faith Ex- Not Eliminate the Good eliminates or narrows the Nothing Gant Krull) ception (Leon, good exception faith held that Because simple for the reason the issue applying good faith the other cases exception applied whether the faith control, in- exception, did not was raised nor reached Gant. Johnson, v. relied on United States stead Nothing suggests Gant 562, 2579, 537, 102 S.Ct. necessary invoking result new (1982), which held that “a L.Ed.2d 202 no the Arizona suggestion rule. There is construing the Court decision of raised prosecutors state ever Fourth is to be retro- Amendment or Ari- exception before the U.S. actively yet that were not convictions zona Court. See 129 S.Ct. time the final ren- The Arizona 1723-24. Kentucky, 479 dered.” See also Griffith has no held: “The State advanced alterna- (1987).4 justifying tive the warrantless theories To do otherwise “violate car, note similarly search of Gant’s and we principle treating situated Gonzalez, require- warrant exception the same.” 578 F.3d other defendants reemphasized Griffith, The Court that "se- In the Court held that Batson v. decided. application of new rules violates the Kentucky, 476 U.S. lective (1986) treating similarly principle situated defen- (holding a criminal defen- 323, 107 dants the same.” Id. at S.Ct. 708. prima dant facie case of could establish prosecu- that even cases were on the racial discrimination based Griffith prior challenges to "clear break” from retroactive peremptory tion’s strike use 326-27, race), applied pending cases. Id. at ret- members of the defendant's roactively pending when Batson to cases appears apply.” ment State v. officer’sreliance on case law was not Ariz. objectively 162 P.3d reasonable. Johnson is consis then Arizona discussed the tent with application plain the exception, excep- exception years automobile view two announced in later tion, inventory Johnson, exception. and the Leon. In the issue was searches Id. good There is no mention the faith incident to warrantless home arrеsts. The exception Supreme in the Arizona Court Court held that area law was “unset opinion. any Nor is there mention of tled” “[l]ong the and that Payton before [v. good York, 573, 100 faith in the exception majority opin- New (1980) ], ion in Gant.5 for example, this questioned had the constitutionality Unfortunately, panel’s concurrence of warrantless home arrests. Further to the denying rehearing order en banc more, opinions the Court’s consistently had takes Supreme analysis Court’s of “po- that, emphasized light in of the constitu in lice reliance completely interests” Gant tional protection traditionally accorded to First, Gant, out of reading context. it is privacy home, officers not “police obvious that reliance interests” should resolve doubts regarding the anything have to do with officers’ validity of a in home arrest favor of obtain good faith reliance settled law. The ing 560-61, a warrant.” at Id. Supreme not “police Court did define reli- 1371. but, interests,” context, ance in- those appear Therefore, terests more to have to do with the panel’s concurrence to cost of retraining officers than anything denying rehearing order en banc errs related to the faith good exception. in likening Payton; Gant to the panel’s Second, 129 S.Ct. at 1722-23. Gant concurrence overlooks that law may be only that such interests were in- settled than courts other the Supreme sufficient justify perpetuating Peltier, the rule Court. 422 U.S. at that permitted Here, unconstitutional searches is no question there that the the future. Gant did not balance the de- law governing the constitutionality of Bel- terrent effect against potential settled, ton very searches was at the least overturned criminal convictions if Weaver, evidence within our circuit. See 433 F.3d prior from suppressed. at states, Id. 1106. As the opinion own scenario this case is “a search con- Moreover, Johnson consistent with ductеd under then-prevailing interpreta- applying good exception faith in tion Gonzalez, of a ruling.” case. The Court in Johnson argued that (emphasis added); 578 F.3d at 1132 see suppressing evidence seized in a search also at (finding conducted under “unsettled” law might broad interpretation of Belton “has pre- have a police, deterrent effect on even dominated”). though evidence suppressing seized in a search conducted under “settled” is clear the Johnson Court adopted 560-61, would not. Peltier, the reasoning of approving of the Johnson, far from supporting underlying rationale behind the faith panel’s opinion, actually provides exception, an exam- when it held: suggest- “Peltier ple where Court held that the ed application retroactive Alito, dissent, evidence, 5. Justice passing his makes a 129 S.Ct. at but he does not reference seized explain why. majority Nor did the in Gant law; reliance on well-settled case he cautions acknowledge argument. Gant will result in the of such odds, if right angles, directly ruling that worked a Amendment Fourth recent decision in like Almeida- Court’s ‘sharp break’ Griffith.” 107 S.Ct. 1160. With Sanchez, little deterrent ef 480 U.S. would O’Connor, respect position her to Justice fect, law enforcement because carry majority vote. Her dis- engaging from rarely be deterred however, does, cleanly frame the issue they sent expected never practice today: decides Does Id. at 95 S.Ct. 2313. invalidated.” exception retroactivity context that It is Grif retro- apply despite Court’s panel. confused apparently has fith majority of the activity precedents? Court’s held that Griffith Leon, held it does pending as to Court were retroactive decisions Herring. attempts panel and regardless decision whether appeals by law and asserting in the 479 to elide the issue case “sharp a law. break” worked distinct, only but a But statutes are that is Griffith sys- a in our challenges and thеre distinction without difference Batson was about government equal of of Fourteenth tem branches with about fore defendants’ legislatures judicia- right by rank between the and rights Amendment —a Peltier, rejected a ry, but is an assertion defendant. Id. individual are violation of a which we bound. What the prosecutor’s A panel actually does is follow Justice O’Con- Fourteenth Amendment defendant’s following of nor’s dissent rather than Su- not raise the issue deter rights does judicially law. preme rence inherent rule. Nor does it created Conclusion Y. balancing test issues central raise the Herring, the Court’s decision jurispru- Fourth Amendment Under our right jury dence, to a A defendant has keep vigil at 700. offi- courts over regard without racial motivation power pan- chosen cers’ to search and seize. The of a conviction vigilance ‍‌​​​‌​‌‌​‌‌​‌‌​‌​​​​​‌‌​‌‌​​‌‌​​‌​​​‌​​​​​‌​‌​‌​‍whether reversal the line less el treads over between a lesson and deter prosecutors only teach Not punishment. will racially conduct in the motivated the time done—in- negate similar the dutiful—at Here, the confuses the ret all future. vestigatory work Officer Garcia application officers, it ham- similarly roactive situated but (a rights officers, of individual must now strings area who motivation) racial un- jury picked worry every they without conduct rights is an of societal what area permissible der circumstances-—remember discipline po (suppression later be worthless may rendered Whren — lice). have been retroactive Gant should in the law a later by change as found And court, case. it was. ly applied Gonzalez’s how or not. no matter foreseeable was held unconsti put Garcia’s search in the busi- Officer We should not remedy But the change foreseeing tutional. how courts will ness compelled so is not the evidence seized their of the Fourth Amendment. views governed by That remedy is expect Gant. them to follow We should Leon, Krull, Herring. so, Those cases to use the doing and when be able suppression. firmly denying point toward procured. evidence so for the support If there is it can

opinion be found Justice She dissent in Krull. wrote:

O’Connor’s ruling in this case at

“I find the Court’s

Case Details

Case Name: United States v. Gonzalez

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 16, 2010

Citation: 598 F.3d 1095

Docket Number: 06-75426

Court Abbreviation: 9th Cir.