Saturday, March 20, 2010

Case o' The Week: New Herring Too Much for Ninth To Swallow - Gonzalez

The Ninth holds back another expansion of Chief Judge Robert's Herring rule, in a denial of rehearing en banc that sparks a heated debate between the concurrence and dissent. United States v. Gonzalez, __ F.3d __, 2010 WL 917204 (9th Cir. Mar. 16, 2010) (Ord. denying rehearing en banc), (order available here).

Players: Judge Betty Fletcher concurring in denial of rehearing en banc; Judges Bea dissenting. Big win for Yakima AFPD Rebecca Pennell.

Facts: Before the Supreme Court’s decision in Arizona v. Gant, a car in which Gonzalez rode was searched; ammo was found, Gonzalez’s suppression motion was denied, he was convicted of Section 922(g), and the Ninth affirmed. See Gonzalez, 578 F.3d 1130, 1131 (9th Cir. 2009).

Cert. was sought, and the Supremes then decided Gant (limiting vehicle searches of cars when the passengers and driver are safely cuffed). The Gonzalez cert. petition was g.v.r.’ed (granted, vacated, and reversed).

On remand, the three-judge panel lead by Judge Betty Fletcher reversed the denial of the suppression motion in light of Gant. The panel also refused to let the search slide under Herring - the Supreme’s recent “good faith” case – holding that to do so would violate the Circuit’s retroactivity precedent. Id. at 1132-33. Rehearing en banc was sought.

Issue(s): (As framed by dissenting Judge Bea): “[Does the panel’s decision] disregard[ ] the Supreme Court’s decisions in Herring . . . and Krull . . . regarding when police misconduct justifies suppression of relevant evidence in a criminal trial, and [does the] panel’s decision create[ ] a split among the circuits?” 2010 WL 917204, *6 (Bea, J., dissenting). Or, as alternatively put by Judge Bea, “Does the good faith exception to the exclusionary rule apply despite the Supreme Court’s retroactivity precedents?” Id. at *15.

Held: (As stated by Judge B. Fletcher, concurring in the denial of the rehearing en banc): “Judge Bea’s dissent presents a distorted view of what this case is all about.” Id. at *1. “The panel’s decision is compelled by the Supreme Court’s retroactivity precedents and dictated by Gant. The court was right to deny en banc rehearing.” Id. at *6.

Of Note: The narrow holding of Gonzalez is that the government can’t use Herring to salvage a search that was legal under (incorrect) case law at the time of the search, but is later determined to have been unconstitutional because that case law was wrong.

The much bigger – and heated – fight is the general impact of Herring on the Ninth’s Fourth Amendment precedent. So far, so good: just last week we trumpeted a great Herring decision by Judge Beezer in Song Ja Cha. And last December some nasty Herring bits were fished out of the Monghur decision.

Sadly, as Judge Bea emphasizes in his dissent, the Ninth doesn’t always have the last word. He predicts, “If there is a silver lining to the panel’s decision to flout Supreme Court case law in Herring and Krull, it is that the panel has set the stage for the Supreme Court to review the scope of the exclusionary rule.” Id. at *8.

How to Use: The rule of Gonzalez, on the application of Herring to retroactive Fourth Amendment decisions, is so narrow it will apply to few cases (despite Judge Bea’s “sky-is-falling” laments). The lesson of Gonzalez, however, applies to any Fourth Amendment case: beware of Chief Judge Robert’s Herring rule. The government (and many judges) are anxious to extend Herring far beyond the narrow confines of the (5 - 4) case.

For Further Reading: All was not rosy, in en banc land last week. We had previously touted the great win in Nevils, where a panel lead by Judge Paez reversed a felon-in-possession conviction for insufficient evidence.

Last week Judge Ikuta lead an en banc panel that reversed that decision, and that “clarified” the Ninth Circuit’s approach toward “sufficiency of evidence” review in the process. See United States v. Nevils, __ F.3d __, 2010 WL 986790 (9th Cir. Mar. 19, 2010) (en banc), decision available here.

The Nevils en banc decision is, unfortunately, now a must-read for any Rule 29 appeal.

Image of Mas enjoying Dutch raw herring at

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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