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Thursday, May 12, 2011

Waiting for Davis v. United States -- or not waiting

One interesting Supreme Court case still awaiting decision this term is Davis v. United States. The case presents the question whether the good-faith exception to the exclusionary rule applies in a situation in which a search was legal when conducted but becomes illegal based on a new rule announced while the case is pending on direct appeal. The new rule at issue in Davis is Arizona v. Gant (2009), which concerned vehicular searches; the search in Davis took place before Gant and was legal under pre-Gant circuit law, but then Gant was decided while the case was pending before the court of appeals. The court of appeals held that Gant provided no remedy, essentially reasoning that the point of the exclusionary rule is to deter police misconduct; if that is the purpose, then evidence should not be excluded when the police acted in accordance with law that was valid at the time.

Davis is interesting for all sorts of reasons involving the exclusionary rule and, more broadly, the retroactivity of judicial decisions. My particular interest has to do with appellate case-management. Defendant Davis is hardly the only person whose case involves the question whether the good-faith exception should apply to pre-Gant searches. Whenever the Supreme Court grants review on a recurring issue like this, there will be plenty of other litigants at various places in the appellate pipeline whose cases involve the same issue. What should lower courts do with these potentially affected cases?

Here is what the Fifth Circuit said in a recent changed-law/exclusionary rule case that happened to come to my attention: "We are aware that the Supreme Court granted certiorari in Davis to address precisely this question. Unless and until the Court instructs otherwise, we are bound to apply this Circuit's binding precedent [i.e. that the good-faith exception applies in changed-law scenarios]." United States v. Curtis (March 11, 2011). It went on to affirm the defendant's conviction.

Now, the court's statement is true enough. A mere grant of certiorari does not change circuit law. But there is another option, right? Namely, the court of appeals could just wait about three months and see how Davis turns out. To be clear, I'm not saying that delaying decision is, all things considered, the right call in this case. The question of whether to hold cases in abeyance when the Supreme Court has granted certiorari is surprisingly complicated and does not admit of across-the-board rules, or so I've argued elsewhere. Sometimes courts decide to wait for a forthcoming potential change in law, sometimes they decide not to wait, and sometimes (as here) they act as if no choice is available to them. But whatever the court does, it is making a choice.

Bonus question: If you are the attorney for someone like Curtis, what is your next move?

Posted by Aaron Bruhl on May 12, 2011 at 09:39 AM in Civil Procedure, Criminal Law, Judicial Process | Permalink


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The obvious answer for Curtis's lawyer is to petition for cert. It doesn't have to be anything novel; if the Supremes agree with Fifth Circuit law, it will likely just deny the petition. If it disagrees with Fifth Circuit law, it will grant the petition, vacate the judgment below, and remand for reconsideration in light of Davis (GVR). Either way, your client gets the benefit of the new decision when it comes out.

Posted by: Sean M. | May 13, 2011 1:03:12 AM

Neat idea, Josh. One factor in the wait-versus-decide-now calculation is the predicted outcome of the Supreme Court case. If the lower court is 95% certain that the Supreme Court will agree with existing circuit law, that is a reason to proceed. If it looks like circuit law could be abrogated, that is a reason to wait. (Again, this is just one factor, not the only one.) Judges' predictions might be deficient due to imperfect information or cognitive biases (e.g., overconfidence in the correctness of circuit law). A good prediction market can help to overcome those deficiencies.

Posted by: Aaron Bruhl | May 12, 2011 5:29:49 PM

This could be a useful application of a Supreme Court information market, such as FantasySCOTUS. An attorney could determine with a reasonable degree of certainty how the Court will decide, and act accordingly. http://joshblackman.com/blog/?p=6950

Posted by: Josh Blackman | May 12, 2011 11:10:15 AM

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