A Narrow Extension of 'Good Faith' to Police Reliance on Caselaw: The Crossroads of Gant and Herring

Abstract:     
This article details the rapidly enfolding debate on whether the courts should recognize an extension of the “good faith” exception to the exclusionary rule that would shield police searches made in reliance on an objectively reasonable understanding of the then-existing case law. Setting the argument in its historical context, the article argues that such an extension should be acceded to and is likely to be accepted by the Supreme Court pursuant to the pillars of the good faith exception as expounded by Herring and its forebears. Finally, noting that the most crucial step in recognizing such an extension is defining its scope, the article proposes to limit the extension by remaining mindful of both the justifications for the good faith exception and pragmatic concerns taking into account the nature of the courts issuing the decision.

Number of Pages in PDF File: 34

Keywords: Arizona, Gant, Herring, good faith, police, reliance, case law, supreme court, fourth amendment, search, seizure, search and seizure, exceptions, exclusionary rule, Krull, Leon, retroactivity

Accepted Paper Series