Legal Commentary

Supreme Court Holding Good-Faith-for-New-Law Fourth Amendment Petition

By Orin Kerr

DOJ?s cert petition in United States v. Gonzalez, 10?82, a case on the good-faith exception to the Fourth Amendment, was distributed for last week?s ?long conference.? The case did not appear on the Court?s list of granted cases nor its list of denied cases, however. That means either the case will be formally relisted for another conference soon or it is being held outside a formal relist (which is rare, but apparently happens). 

It?s hard to know with any certainty what is happening, but I wonder if the Court is going to hold the Gonzalez petition and grant in another similar case in coming weeks instead of taking Gonzalez. Here?s my thinking. The Ninth Circuit panel decision in United States v. Gonzalez, 578 F.3d 1130 (9th Cir. 2009), was handed down in August 2009, and DOJ filed its petition for rehearing in that case in November 2009. At the time, Elena Kagan was the SG, so she would have had to personally approve the petition for rehearing. Having approved the petition for rehearing in the Ninth Circuit, Kagan presumably is recused from sitting on the Gonzalez case.

At the same time, this is a recurring question and other petitions are pending raising the same issue but that Kagan would not have worked on as SG. For example, there?s United States v. Davis from the Eleventh Circuit: The Davis petition was filed in June, and DOJ?s Brief in Opposition was filed on September 15th. Although DOJ?s brief is not yet on the OSG website, it seems likely that DOJ had to pretty much concede in Davis that the issue was cert-worthy in light of its own cert petition in Gonzalez on the exact same issue in a case with nearly identical facts. 

Given the possibility that the issue could closely divide the Justices, it makes sense for the Court to take the vehicle that doesn?t present any recusal problems to avoid a potential 4?4 decision. As best I can tell, that would mean the Court should take Davis or one of the other cases raising this issue instead of Gonzalez.

That?s my guess, anyway. My own view of what the Supreme Court should do in whichever case they take is here: Good Faith, New Law, and the Scope of the Exclusionary Rule, 99 Georgetown Law Journal (forthcoming 2011).

Full post as published by The Volokh Conspiracy on October 04, 2010 (boomark / email).