Eastern District of Washington, Spokane, D.C. No. CR-06-02112-EFS.
Before: Betty B. Fletcher, Richard A. Paez, and N. Randy Smith, Circuit Judges.
Order; Concurrence by Judge B. Fletcher; Dissent by Judge Bea
The panel has voted to deny the Petition for Rehearing. Judges Paez and N.R. Smith have voted to deny the Petition for Rehearing En Banc, and Judge B. Fletcher has so recommended.
The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to hear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35.
The petition for rehearing and the petition for rehearing en banc are DENIED.
B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges, concurring in the denial of rehearing en banc:
Judge Bea's dissent presents a distorted view of what this case is all about. It requires a response that can be part of the public record. Otherwise our panel's reasoned response to the en banc call would remain hidden from public view.
At the time of our original disposition, the Supreme Court had not decided Arizona v. Gant, 129 S.Ct. 1710 (2009). Our circuit interpreted New York v. Belton, 453 U.S. 454 (1981), to allow law enforcement to search the passenger compartment of a vehicle so long as the search was "roughly contemporaneous with the arrest" of the vehicle's occupant. United States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (citation and quotation marks omitted). Accordingly, our panel in its original disposition concluded that the search of Defendant Gonzalez's vehicle did not violate the Fourth Amendment.
While Gonzalez's petition for certiorari was pending, the Supreme Court decided Gant, holding that a number of state and federal courts, including ours, had improperly interpreted Belton. Far from announcing a new rule and overruling Belton, the Court explained that our precedent had misinterpreted Belton by ignoring that Belton is the progeny of Chimel v. California, 395 U.S. 752 (1969). We had "untether[ed]" Belton "from the justifications underlying the Chimel exception," which allows searches incident to lawful arrests, but limits those searches solely to "the arrestee's person and the area . . . within which he might gain possession of a weapon or destructible evidence" at the time of the search. Gant, 129 S.Ct. at 1716, 1719 (citation and quotation marks omitted).
The Supreme Court granted Gonzalez's certiorari petition, vacated our panel's decision, and remanded to us "for further consideration in light of Arizona v. Gant." Quintana v. United States, 129 S.Ct. 2156 (2009) (citation omitted). In our decision on remand, we faithfully followed its instructions. We applied Gant consistent with the Supreme Court's precedents on the application of the exclusionary rule and on retroactivity. See United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009).
Judge Bea's bold pronouncement that we disregarded Herring v. United States, 129 S.Ct. 695 (2009), and Illinois v. Krull, 480 U.S. 340 (1987), is wrong.
Indeed, we followed the teaching of the Herring Court that "the benefits of deterrence must outweigh the costs." 129 S.Ct. at 700. In Gant, the Court decided that in cases such as Gonzalez, the benefits of deterrence do outweigh the costs. It held that where, as in Gant, "it is clear that a [law enforcement] practice is unlawful, individuals' interest in its discontinuance clearly outweighs any law enforcement 'entitlement' to its persistence." Gant, 129 S.Ct. at 1723. Because the unconstitutionality of the searches in Gant and this case was "clear," the searches never should have occurred. They were unlawful ab initio. As a consequence, Gant held that deter-rence of such searches trumps the costs of exclusion. Judge Bea's argument in support of the dissenters in Gant is to no avail. Let him disagree with the Supreme Court, if he must, but not with our adherence to the Court's dictates.
Krull, for its part, is inapposite. It concerns law enforce-ment's reliance on a statute and not the interpretation of case law. The controlling authority for this case was United States v. Johnson, 457 U.S. 537 (1982), not Krull as advocated by Judge Bea. The panel correctly followed Johnson.
Finally, the reader should bear in mind that this case deals with a defendant's right to suppress evidence obtained by an unconstitutional search. It does not involve whether the officers who conducted the search are entitled to qualified immunity. The rights of the defendant, not those of the police, are at issue. The dissent persists in its view that discipline of police is at issue rather than individual rights. See Dissent at 4347-48 ("Here, the panel confuses the retroactive application of a Supreme Court decision in the area of individual rights (a jury picked without racial motivation) with what is an area of societal rights (suppression of evidence to discipline police).").
The precedents that controlled our decision in Gonzalez were those dealing with retroactivity. All agree that when Gant was decided, defendant Gonzalez's conviction had not yet become final. All agree that under Gant, the search in our case was unconstitutional. Looking to the Supreme Court's precedents on retroactivity, we applied Gant, holding that the search was unconstitutional and that the evidence seized should be suppressed.
When the Supreme Court clarifies the boundaries of a constitutional search in one case, in fairness, that clarification must be consistently applied to all cases that are not yet final. That policy was applied in Johnson, 457 U.S. 537, and Griffith v. Kentucky, 479 U.S. 314 (1987).
The question in Johnson was whether Payton v. New York, 445 U.S. 573 (1980), should be applied retroactively to exclude evidence in cases pending on direct appeal. The government argued that the exclusionary rule should not apply to evidence seized in good-faith reliance on pre-Payton law. We quote the Court's rejection of that argument:
The Government [relies] on [United States v.] Pel-tier's broad language: "If the purpose of the exclusionary rule is to deter unlawful police conduct then evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment" (emphasis added). The Government reads this language to require that new Fourth Amendment rules must be denied retroactive effect in all cases except those in which law enforcement officers failed to act in good-faith compliance with then-prevailing constitutional norms.
. . . Under the Government's theory, because the state of Fourth Amendment law regarding warrantless home arrests was "unsettled" before Payton, that ruling should not apply retroactively even to cases pending on direct appeal when Payton was decided.
Yet the Government's reading of Peltier would reduce its own "retroactivity test" to an absurdity. Under this view, the only Fourth Amendment rulings worthy of retroactive application are those in which the arresting officers violated pre-existing guidelines clearly established by prior cases. But as we have seen above, cases involving simple application of clear, pre-existing Fourth Amendment guidelines raise no real questions of retroactivity at all. Literally read, the Government's theory would automatically eliminate all Fourth Amendment rulings from consideration for retroactive application.
The Government's [next] claim is that Peltier's logic suggests that retroactive application of Fourth Amendment decisions like Payton even to cases pending on direct review-would not serve the policies underlying the exclusionary rule. . . .
If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side 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. Failure to accord any retroactive effect to Fourth Amendment rulings would "encourage police or other courts to disregard the plain purport of our decisions and to adopt a let's-wait-until-it's-decided approach."
457 U.S. at 559-61 (citations omitted). Like Payton, Gant clarified a point of law that the Court had not yet explicitly addressed: the scope of the Court's holding in Belton. Compare State v. Gant, 162 P.3d 640, 645 (Ariz. 2007) (majority opinion) ("We do not . . . read Belton or Thornton as abandoning the Chimel justifications for the search incident to arrest exception."), with id. at 647 (Bales, J., dissenting) ("The validity of a Belton search . . . clearly does not depend on the presence of the Chimel rationales in a particular case."). As does Judge Bea, the United States in Johnson argued that excluding evidence seized in ...