Gant, “Retroactivity,” and Retroactivity

The fallout from the Supreme Court’s recent decision in Arizona v. Gant, see my initial post here, has been fast and furious.  Most questions I’ve received have been about how it applies to existing and past cases, not to future searches.  Here are a couple of common questions and answers.

1. Does Gant apply to searches, at issue in pending cases, that were conducted before the decision was handed down? Yes.  It applies to all pending cases, whether at the trial or at the appellate level.  See Griffith v. Kentucky, 479 U.S. 314 (1987) (holding that new constitutional rules of criminal procedure apply to all cases that are not yet final).  This is illustrated by Gant itself — the search in that case was obviously conducted before the Gant decision, yet the rule announced in Gant was applied to the search.  Although some people have asked me about this issue in terms of “retroactivity,” it isn’t what courts talk about when they consider the retroactivity of new cases — true retroactivity is discussed in connection with question 3, below.

2. Does that mean that all evidence obtained as a result of vehicle searches incident to arrest must be suppressed? No.  In some cases, searches will be permissible under Gant, such as when the arrestee was unsecured and near the vehicle, or when the arresting officer had reason to believe that evidence of the crime for which the arrest was made would be found in the vehicle.  As discussed in my earlier post, the scope of the “reason to believe” prong of Gant is unclear and potentially elastic.

Furthermore, in some cases, there will be an independent legal basis that supports the search, as when the officer had probable cause to search the vehicle.  The fact that the officer subjectively thought of himself as conducting a search incident to arrest doesn’t preclude the possibility that the search was justified on a different theory.

Even if no theory justified the search, in some cases, the inevitable discovery rule may operate to “save” evidence recovered during the search.  For example, if the vehicle was legally impounded and inventoried after the arrest, any evidence found during the search that would likely also have been found during the inventory is probably admissible.

Finally, if none of the above arguments apply to a particular situation — and my sense is that often none will — a prosecutor attempting to “save” evidence might argue that the officer who conducted the search acted in good faith and thus suppression should not be required under Herring v. United States, __ U.S. __ (2009).  I posted about Herring here.  Such an argument would require an extension of Herring, and perhaps one that courts will reject, but it may be an argument worth making.

3. Does Gant apply to cases that have already been disposed of? This is the retroactivity question — can a defendant whose conviction has become final, i.e., whose direct appeals have been concluded, or whose time for appeal has expired, seek relief based on Gant?  The answer to this question isn’t clear, though given courts’ general reluctance to make changes in the law retroactive, my guess is no.  (Let me emphasize that this is only a guess — we’ll have cases soon enough, I’m sure.)

Generally, whether criminal law decisions apply retroactively is determined under Teague v. Lane, 489 U.S. 288 (1989).  This is a bit of a simplification, especially after Danforth v. Minnesota, __ U.S. __ (2008), but bear with me.  Under Teague, a decision is retroactive if (1) it is an “old rule,” i.e., a decision dictated by prior precedent, or (2) it is a new substantive rule that narrows the scope of criminal liability, or (3) it is a new “watershed” procedural rule that is fundamental to the fairness of criminal proceedings.  (For a detailed discussion of Teague, see Jessica Smith’s excellent paper, here.) 

Gant isn’t a new substantive rule, and given the Supreme Court’s frequently-expressed skepticism that there are any yet-undiscovered “watershed” procedural rules, it isn’t likely to be retroactive on that basis, either.  The best argument for retroactivity is that Gant is an “old rule,” dictated by Belton.  This argument is plausible because the Gant majority claimed to be interpreting Belton, not overruling it; indeed, the majority stated that there was both “textual and evidentiary support” for its reading of Belton, arguably suggesting that Gant was dictated by Belton.  But my guess is that courts will nonetheless view Gant as a new rule, since it upsets the interpretation of Belton that was widely adopted by lower courts.  Even the Gant majority admitted that the automatic-search reading has “predominated,” indeed, to such an extent that officers who acted based on that reading are entitled to qualified immunity.  I suspect that will lead courts to find Gant to be a new rule and so not retroactive.

I’m sure that others have views on the retroactivity issue.  If you think I’ve got it wrong, let me know.

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