Monday, August 24, 2009

U.S. v. Gonzalez, No. 07-30098 (8-24-09). You "Gant" always get what you want, which in this case, was the weapon from a car where the defendant was riding. The police arrested someone else for outstanding warrants; the defendant ended up also handcuffed in the police car. The police then searched the vehicle and found a firearm in the glovebox, which they said he was prohibited from possessing. While this case was on appeal (and remanded from the Supremes), the Gant decision came down. 129 S. Ct. 1710 (2009). Under Gant, the Supremes read Belton narrowly, so that police may search a vehicle incident to arrest only if the arrested person is within reaching distance of the passenger compartment of the car at the time of the search or it is reasonable to believe that the vehicle contains evidence of the offense of arrest. 129 S. Ct. at 1723-24. Here, Gant controls. But wait, the government protests, we acted in good faith, and under Herring, 129 S.Ct. 695 (2009), the inquiry as to the exclusionary rule should turn on the culpability of the police and the potential of exclusion to deter wrongful police conduct. The 9th (B. Fletcher joined by Paez and N. Smith) regarded this argument as a red Herring, because the Supremes' own rules of retroactivity as applied to Fourth Amendment precedent require that the case be applied to matters on direct appeal. Griffith v. Kentucky, 479 U.S. 314 (1987); U.S. v. Johnson, 457 US 537 (1982).

Congratulations to AFPD Rebecca Pennell of the Federal Defenders of Eastern Washington and Idaho.


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