Davis v. United States , 131 S. Ct. 2419 ( 2011 )

(Slip Opinion) OCTOBER TERM, 2010 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
DAVIS v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 09–11328. Argued March 21, 2011—Decided June 16, 2011
While conducting a routine vehicle stop, police arrested petitioner Wil
lie Davis, a passenger, for giving a false name. After handcuffing
Davis and securing the scene, the police searched the vehicle and
found Davis’s revolver. Davis was then indicted on charges of being a
felon in possession of a firearm. In a suppression motion, Davis ac
knowledged that the search of the vehicle complied with existing
Eleventh Circuit precedent interpreting New York v. Belton, 453
U. S. 454, but Davis raised a Fourth Amendment challenge to pre
serve the issue on appeal. The District Court denied the motion, and
Davis was convicted. While his appeal was pending, this Court an
nounced, in Arizona v. Gant, 556 U. S. ___, ___, a new rule governing
automobile searches incident to arrests of recent occupants. The
Eleventh Circuit held, under Gant, that the vehicle search at issue
violated Davis’s Fourth Amendment rights, but the court declined to
suppress the revolver and affirmed Davis’s conviction.
Held: Searches conducted in objectively reasonable reliance on binding
appellate precedent are not subject to the exclusionary rule. Pp. 6–
20.
(a) The exclusionary rule’s sole purpose is to deter future Fourth
Amendment violations, e.g., Herring v. United States, 555 U. S. 135,
141, and its operation is limited to situations in which this purpose is
“thought most efficaciously served,” United States v. Calandra, 414
U. S. 338, 348. For exclusion to be appropriate, the deterrence bene
fits of suppression must outweigh the rule’s heavy costs. Under a
line of cases beginning with United States v. Leon, 468 U. S. 897, the
result of this cost-benefit analysis turns on the “flagrancy of the po
lice misconduct” at issue. Id., at 909, 911. When the police exhibit
“deliberate,” “reckless,” or “grossly negligent” disregard for Fourth
2 DAVIS v. UNITED STATES
Syllabus
Amendment rights, the benefits of exclusion tend to outweigh the
costs. Herring, supra, at 144. But when the police act with an objec
tively reasonable good-faith belief that their conduct is lawful, or
when their conduct involves only simple, isolated negligence, the de
terrent value of suppression is diminished, and exclusion cannot “pay
its way.” See Leon, supra, at 909, 919, 908, n. 6; Herring, supra, at
137. Pp. 6–9.
(b) Although the search in this case turned out to be unconstitu
tional under Gant, Davis concedes that the officers’ conduct was in
strict compliance with then-binding Circuit law and was not culpable
in any way. Under this Court’s exclusionary-rule precedents, the ac
knowledged absence of police culpability dooms Davis’s claim. Pp. 9–
11.
(c) The Court is not persuaded by arguments that other considera
tions should prevent the good-faith exception from applying in this
case. Pp. 11–19.
(1) The argument that the availability of the exclusionary rule to
enforce new Fourth Amendment precedent is a retroactivity issue,
not a good-faith issue, is unpersuasive. This argument erroneously
conflates retroactivity with remedy. Because Davis’s conviction had
not become final when Gant was announced, Gant applies retroac
tively in this case, and Davis may invoke its newly announced rule as
a basis for seeking relief. See Griffith v. Kentucky, 479 U. S. 314,
326, 328. But retroactive application of a new rule does not deter
mine the question of what remedy the defendant should obtain. See
Powell v. Nevada, 511 U. S. 79, 83, 84. The remedy of exclusion does
not automatically follow from a Fourth Amendment violation, see
Arizona v. Evans, 514 U. S. 1, 13, and applies only where its “purpose
is effectively advanced,” Illinois v. Krull, 480 U. S. 340, 347. The ap
plication of the good-faith exception here neither contravenes Griffith
nor denies retroactive effect to Gant. Pp. 12–16.
(2) Nor is the Court persuaded by the argument that applying
the good-faith exception to searches conducted in reliance on binding
precedent will stunt the development of Fourth Amendment law by
discouraging criminal defendants from attacking precedent. Facili
tating the overruling of precedent has never been a relevant consid
eration in this Court’s exclusionary-rule cases. In any event, apply
ing the good-faith exception in this context will not prevent this
Court’s review of Fourth Amendment precedents. If precedent from a
federal court of appeals or state court of last resort upholds a particu
lar type of search or seizure, defendants in jurisdictions where the
question remains open will still have an undiminished incentive to
litigate the issue, and this Court can grant certiorari in one of those
cases. Davis’s claim that this Court’s Fourth Amendment precedents
Cite as: 564 U. S. ____ (2011) 3
Syllabus
will be effectively insulated from challenge is overstated. In many
cases, defendants will test this Court’s Fourth Amendment prece
dents by arguing that they are distinguishable. And at most, this ar
gument might suggest that, in a future case, the Court could allow a
petitioner who secures a decision overruling one of this Court’s prece
dents to obtain suppression of evidence in that one case. Pp. 16–19.
598 F. 3d 1259, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, THOMAS, and KAGAN, JJ., joined. SOTOMAYOR, J.,
filed an opinion concurring in the judgment. BREYER, J., filed a dissent
ing opinion, in which GINSBURG, J., joined.
Cite as: 564 U. S. ____ (2011) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–11328
_________________
WILLIE GENE DAVIS, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 16, 2011]
JUSTICE ALITO delivered the opinion of the Court.
The Fourth Amendment protects the right to be free
from “unreasonable searches and seizures,” but it is silent
about how this right is to be enforced. To supplement
the bare text, this Court created the exclusionary rule, a
deterrent sanction that bars the prosecution from intro
ducing evidence obtained by way of a Fourth Amendment
violation. The question here is whether to apply this
sanction when the police conduct a search in compliance
with binding precedent that is later overruled. Because
suppression would do nothing to deter police misconduct
in these circumstances, and because it would come at a
high cost to both the truth and the public safety, we hold
that searches conducted in objectively reasonable reliance
on binding appellate precedent are not subject to the
exclusionary rule.
I
The question presented arises in this case as a result
of a shift in our Fourth Amendment jurisprudence on
searches of automobiles incident to arrests of recent
occupants.
2 DAVIS v. UNITED STATES
Opinion of the Court
A
Under this Court’s decision in Chimel v. California, 395
U. S. 752 (1969), a police officer who makes a lawful arrest
may conduct a warrantless search of the arrestee’s person
and the area “within his immediate control.” Id., at 763(internal quotation marks omitted). This rule “may be
stated clearly enough,” but in the early going after Chimel
it proved difficult to apply, particularly in cases that in
volved searches “inside [of] automobile[s] after the arrest
ees [we]re no longer in [them].” See New York v. Belton,
453 U. S. 454, 458–459 (1981). A number of courts up
held the constitutionality of vehicle searches that were
“substantially contemporaneous” with occupants’ arrests.1
Other courts disapproved of automobile searches incident
to arrests, at least absent some continuing threat that the
arrestee might gain access to the vehicle and “destroy
evidence or grab a weapon.”2 In New York v. Belton, this
Court granted certiorari to resolve the conflict. See id., at
459–460.
In Belton, a police officer conducting a traffic stop law
fully arrested four occupants of a vehicle and ordered the
arrestees to line up, un-handcuffed, along the side of the
thruway. Id., at 456; see Brief for Petitioner in New York
v. Belton, O. T. 1980, No. 80–328, p. 3. The officer then
searched the vehicle’s passenger compartment and found
cocaine inside a jacket that lay on the backseat. Belton,
453 U. S., at 456. This Court upheld the search as rea
sonable incident to the occupants’ arrests. In an opinion
that repeatedly stressed the need for a “straightforward,”
——————
1 See e.g., United States v. Sanders, 631 F. 2d 1309, 1313–1314 (CA8
1980); United States v. Dixon, 558 F. 2d 919, 922 (CA9 1977); United
States v. Frick, 490 F. 2d 666, 668–669 (CA5 1973); Hinkel v. Anchor
age, 618 P. 2d 1069, 1069–1071 (Alaska 1980).
2 See e.g., United States v. Benson, 631 F. 2d 1336, 1340 (CA8 1980);
see also United States v. Rigales, 630 F. 2d 364, 366–367 (CA5 1980);
Ulesky v. State, 379 So. 2d 121, 125–126 (Fla. App. 1979).
Cite as: 564 U. S. ____ (2011) 3
Opinion of the Court
“workable rule” to guide police conduct, the Court an
nounced “that when a policeman has made a lawful custo
dial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the pas
senger compartment of that automobile.” Id., at 459–460
(footnote omitted).
For years, Belton was widely understood to have set
down a simple, bright-line rule. Numerous courts read
the decision to authorize automobile searches incident to
arrests of recent occupants, regardless of whether the
arrestee in any particular case was within reaching dis
tance of the vehicle at the time of the search. See Thorn
ton v. United States, 541 U. S. 615, 628 (2004) (SCALIA, J.,
concurring in judgment) (collecting cases). Even after the
arrestee had stepped out of the vehicle and had been
subdued by police, the prevailing understanding was that
Belton still authorized a substantially contemporaneous
search of the automobile’s passenger compartment.3
Not every court, however, agreed with this reading of
Belton. In State v. Gant, 216 Ariz. 1, 162 P. 3d 640 (2007),
the Arizona Supreme Court considered an automobile
search conducted after the vehicle’s occupant had been
arrested, handcuffed, and locked in a patrol car. The court
distinguished Belton as a case in which “four unsecured”
arrestees “presented an immediate risk of loss of evidence
and an obvious threat to [a] lone officer’s safety.” 216
Ariz., at 4, 162 P. 3d, at 643. The court held that where no
such “exigencies exis[t]”—where the arrestee has been
subdued and the scene secured—the rule of Belton does
not apply. 216 Ariz., at 4, 162 P. 3d, at 643.
This Court granted certiorari in Gant, see 552 U. S.
——————
3 See,e.g., United States v. Dorsey, 418 F. 3d 1038, 1041, 1043–1044
(CA9 2005) (upholding automobile search conducted after the officer
had “handcuffed [the arrestee] and put him in the back of [the] patrol
car”); United States v. Barnes, 374 F. 3d 601, 604 (CA8 2004) (same).
4 DAVIS v. UNITED STATES
Opinion of the Court
1230 (2008), and affirmed in a 5-to-4 decision. Arizona v.
Gant, 556 U. S. ___ (2009). Four of the Justices in the
majority agreed with the Arizona Supreme Court that
Belton’s holding applies only where “the arrestee is unse
cured and within reaching distance of the passenger com
partment at the time of the search.” 556 U. S., at ___
(slip op., at 10). The four dissenting Justices, by contrast,
understood Belton to have explicitly adopted the simple,
bright-line rule stated in the Belton Court’s opinion. 556
U. S., at ___ (opinion of ALITO, J.) (slip op., at 3); see Bel
ton, 453 U. S., at 460 (“[W]e hold that when a policeman
has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that
arrest, search the passenger compartment of that automo
bile” (footnote omitted)). To limit Belton to cases involving
unsecured arrestees, the dissenters thought, was to over
rule the decision’s clear holding. Gant, supra, at ___ (slip
op., at 2–3). JUSTICE SCALIA, who provided the fifth vote
to affirm in Gant, agreed with the dissenters’ understand
ing of Belton’s holding. 556 U. S., at ___ (slip op., at 1–2)
(concurring opinion). JUSTICE SCALIA favored a more ex
plicit and complete overruling of Belton, but he joined
what became the majority opinion to avoid “a 4-to-1-to-4”
disposition. 556 U. S., at ___ (slip op., at 2–4). As a result,
the Court adopted a new, two-part rule under which an
automobile search incident to a recent occupant’s arrest is
constitutional (1) if the arrestee is within reaching dis
tance of the vehicle during the search, or (2) if the police
have reason to believe that the vehicle contains “evidence
relevant to the crime of arrest.” Id., at ___ (slip op., at 9–
10) (citing Thornton, supra, at 632 (SCALIA, J., concurring
in judgment); internal quotation marks omitted).
B
The search at issue in this case took place a full two
years before this Court announced its new rule in Gant.
Cite as: 564 U. S. ____ (2011) 5
Opinion of the Court
On an April evening in 2007, police officers in Greenville,
Alabama, conducted a routine traffic stop that eventually
resulted in the arrests of driver Stella Owens (for driving
while intoxicated) and passenger Willie Davis (for giving a
false name to police). The police handcuffed both Owens
and Davis, and they placed the arrestees in the back of
separate patrol cars. The police then searched the pas
senger compartment of Owens’s vehicle and found a re
volver inside Davis’s jacket pocket.
Davis was indicted in the Middle District of Alabama on
one count of possession of a firearm by a convicted felon.
See 18 U. S. C. §922(g)(1). In his motion to suppress
the revolver, Davis acknowledged that the officers’ search
fully complied with “existing Eleventh Circuit precedent.”
App. 13–15. Like most courts, the Eleventh Circuit had
long read Belton to establish a bright-line rule authorizing
substantially contemporaneous vehicle searches incident
to arrests of recent occupants. See United States v. Gon
zalez, 71 F. 3d 819, 822, 824–827 (CA11 1996) (upholding
automobile search conducted after the defendant had been
“pulled from the vehicle, handcuffed, laid on the ground,
and placed under arrest”). Davis recognized that the Dis
trict Court was obligated to follow this precedent, but
he raised a Fourth Amendment challenge to preserve “the
issue for review” on appeal. App. 15. The District Court
denied the motion, and Davis was convicted on the fire
arms charge.
While Davis’s appeal was pending, this Court decided
Gant. The Eleventh Circuit, in the opinion below, applied
Gant’s new rule and held that the vehicle search incident
to Davis’s arrest “violated [his] Fourth Amendment
rights.” 598 F. 3d 1259, 1263 (CA11 2010). As for
whether this constitutional violation warranted suppres
sion, the Eleventh Circuit viewed that as a separate issue
that turned on “the potential of exclusion to deter wrong
ful police conduct.” Id., at 1265 (quoting Herring v. United
6 DAVIS v. UNITED STATES
Opinion of the Court
States, 555 U. S. 135, 137 (2009); internal quotation marks
omitted). The court concluded that “penalizing the [ar
resting] officer” for following binding appellate precedent
would do nothing to “dete[r] . . . Fourth Amendment viola
tions.” 598 F. 3d, at 1265–1266 (bracketing and internal
quotation marks omitted). It therefore declined to apply
the exclusionary rule and affirmed Davis’s conviction. We
granted certiorari. 562 U. S. ___ (2010).
II
The Fourth Amendment protects the “right of the peo
ple to be secure in their persons, houses, papers, and ef
fects, against unreasonable searches and seizures.” The
Amendment says nothing about suppressing evidence ob
tained in violation of this command. That rule—the
exclusionary rule—is a “prudential” doctrine, Pennsyl
vania Bd. of Probation and Parole v. Scott, 524 U. S. 357,
363 (1998), created by this Court to “compel respect for the
constitutional guaranty.” Elkins v. United States, 364
U. S. 206, 217 (1960); see Weeks v. United States, 232 U. S.
383 (1914); Mapp v. Ohio, 367 U. S. 643 (1961). Exclusion
is “not a personal constitutional right,” nor is it designed
to “redress the injury” occasioned by an unconstitutional
search. Stone v. Powell, 428 U. S. 465, 486 (1976); see
United States v. Janis, 428 U. S. 433, 454, n. 29 (1976)
(exclusionary rule “unsupportable as reparation or com
pensatory dispensation to the injured criminal” (internal
quotation marks omitted)). The rule’s sole purpose, we
have repeatedly held, is to deter future Fourth Amend
ment violations. E.g., Herring, supra, at 141, and n. 2;
United States v. Leon, 468 U. S. 897, 909, 921, n. 22
(1984); Elkins, supra, at 217 (“calculated to prevent, not to
repair”). Our cases have thus limited the rule’s operation
to situations in which this purpose is “thought most effica
ciously served.” United States v. Calandra, 414 U. S. 338,
348 (1974). Where suppression fails to yield “appreciable
Cite as: 564 U. S. ____ (2011) 7
Opinion of the Court
deterrence,” exclusion is “clearly . . . unwarranted.” Janis,
supra, at 454.
Real deterrent value is a “necessary condition for exclu
sion,” but it is not “a sufficient” one. Hudson v. Michigan,
547 U. S. 586, 596 (2006). The analysis must also account
for the “substantial social costs” generated by the rule.
Leon, supra, at 907. Exclusion exacts a heavy toll on both
the judicial system and society at large. Stone, 428 U. S.,
at 490–491. It almost always requires courts to ignore
reliable, trustworthy evidence bearing on guilt or inno
cence. Ibid. And its bottom-line effect, in many cases, is
to suppress the truth and set the criminal loose in the
community without punishment. See Herring, supra, at
141. Our cases hold that society must swallow this bitter
pill when necessary, but only as a “last resort.” Hudson,
supra, at 591. For exclusion to be appropriate, the deter
rence benefits of suppression must outweigh its heavy
costs. See Herring, supra, at 141; Leon, supra, at 910.
Admittedly, there was a time when our exclusionary
rule cases were not nearly so discriminating in their
approach to the doctrine. “Expansive dicta” in several deci
sions, see Hudson, supra, at 591, suggested that the rule
was a self-executing mandate implicit in the Fourth
Amendment itself. See Olmstead v. United States, 277
U. S. 438, 462 (1928) (remarking on the “striking outcome
of the Weeks case” that “the Fourth Amendment, although
not referring to or limiting the use of evidence in courts,
really forbade its introduction”); Mapp, supra, at 655(“[A]ll evidence obtained by searches and seizures in viola
tion of the Constitution is, by that same authority, inad
missible in a state court”). As late as our 1971 decision in
Whiteley v. Warden, Wyo. State Penitentiary, 401 U. S.
560, 568–569, the Court “treated identification of a Fourth
Amendment violation as synonymous with application of
the exclusionary rule.” Arizona v. Evans, 514 U. S. 1, 13
(1995). In time, however, we came to acknowledge the
8 DAVIS v. UNITED STATES
Opinion of the Court
exclusionary rule for what it undoubtedly is—a “judicially
created remedy” of this Court’s own making. Calandra,
supra, at 348. We abandoned the old, “reflexive” applica
tion of the doctrine, and imposed a more rigorous weighing
of its costs and deterrence benefits. Evans, supra, at 13;
see, e.g., Calandra, supra; Janis, supra; Stone, supra; INS
v. Lopez-Mendoza, 468 U. S. 1032 (1984); United States v.
Havens, 446 U. S. 620 (1980). In a line of cases beginning
with United States v. Leon, 468 U. S. 897, we also recali
brated our cost-benefit analysis in exclusion cases to focus
the inquiry on the “flagrancy of the police misconduct” at
issue. Id., at 909, 911.
The basic insight of the Leon line of cases is that the
deterrence benefits of exclusion “var[y] with the culpabil
ity of the law enforcement conduct” at issue. Herring, 555
U. S., at 143. When the police exhibit “deliberate,” “reck
less,” or “grossly negligent” disregard for Fourth Amend
ment rights, the deterrent value of exclusion is strong and
tends to outweigh the resulting costs. Id., at 144. But
when the police act with an objectively “reasonable good
faith belief” that their conduct is lawful, Leon, supra, at
909 (internal quotation marks omitted), or when their
conduct involves only simple, “isolated” negligence, Her
ring, supra, at 137, the “ ‘deterrence rationale loses much
of its force,’ ” and exclusion cannot “pay its way.” See
Leon, supra, at 919, 908, n. 6 (quoting United States v.
Peltier, 422 U. S. 531, 539 (1975)).
The Court has over time applied this “good-faith” excep
tion across a range of cases. Leon itself, for example, held
that the exclusionary rule does not apply when the police
conduct a search in “objectively reasonable reliance” on a
warrant later held invalid. 468 U. S., at 922. The error in
such a case rests with the issuing magistrate, not the
police officer, and “punish[ing] the errors of judges” is not
the office of the exclusionary rule. Id., at 916; see also
Massachusetts v. Sheppard, 468 U. S. 981, 990 (1984)
Cite as: 564 U. S. ____ (2011) 9
Opinion of the Court
(companion case declining to apply exclusionary rule
where warrant held invalid as a result of judge’s clerical
error).
Other good-faith cases have sounded a similar theme.
Illinois v. Krull, 480 U. S. 340 (1987), extended the good
faith exception to searches conducted in reasonable reli
ance on subsequently invalidated statutes. Id., at 349–
350 (“legislators, like judicial officers, are not the focus of
the rule”). In Arizona v. Evans, supra, the Court applied
the good-faith exception in a case where the police rea
sonably relied on erroneous information concerning an
arrest warrant in a database maintained by judicial em
ployees. Id., at 14. Most recently, in Herring v. United
States, 555 U. S. 135, we extended Evans in a case where
police employees erred in maintaining records in a war
rant database. “[I]solated,” “nonrecurring” police negli
gence, we determined, lacks the culpability required to
justify the harsh sanction of exclusion. 555 U. S., at 137,
144.
III
The question in this case is whether to apply the exclu
sionary rule when the police conduct a search in objec
tively reasonable reliance on binding judicial precedent.
At the time of the search at issue here, we had not yet
decided Arizona v. Gant, 556 U. S. ___, and the Eleventh
Circuit had interpreted our decision in New York v. Belton,
453 U. S. 454, to establish a bright-line rule authorizing
the search of a vehicle’s passenger compartment incident
to a recent occupant’s arrest. Gonzalez, 71 F. 3d, at 825.
The search incident to Davis’s arrest in this case followed
the Eleventh Circuit’s Gonzalez precedent to the letter.
Although the search turned out to be unconstitutional
under Gant, all agree that the officers’ conduct was in
strict compliance with then-binding Circuit law and was
not culpable in any way. See Brief for Petitioner 49 (“sup
10 DAVIS v. UNITED STATES
Opinion of the Court
pression” in this case would “impl[y] no assignment of
blame”).
Under our exclusionary-rule precedents, this acknowl
edged absence of police culpability dooms Davis’s claim.
Police practices trigger the harsh sanction of exclusion
only when they are deliberate enough to yield “mean
ingfu[l]” deterrence, and culpable enough to be “worth the
price paid by the justice system.” Herring, 555 U. S., at
144. The conduct of the officers here was neither of these
things. The officers who conducted the search did not
violate Davis’s Fourth Amendment rights deliberately,
recklessly, or with gross negligence. See ibid. Nor does
this case involve any “recurring or systemic negligence” on
the part of law enforcement. Ibid. The police acted in
strict compliance with binding precedent, and their behav
ior was not wrongful. Unless the exclusionary rule is to
become a strict-liability regime, it can have no application
in this case.
Indeed, in 27 years of practice under Leon’s good-faith
exception, we have “never applied” the exclusionary rule to
suppress evidence obtained as a result of nonculpable,
innocent police conduct. Herring, supra, at 144. If the
police in this case had reasonably relied on a warrant in
conducting their search, see Leon, supra, or on an errone
ous warrant record in a government database, Herring,
supra, the exclusionary rule would not apply. And if
Congress or the Alabama Legislature had enacted a stat
ute codifying the precise holding of the Eleventh Circuit’s
decision in Gonzalez,4 we would swiftly conclude that
——————
4 Cf. Kan. Stat. Ann. §22–2501(c) (2007) (“When a lawful arrest is
effected a law enforcement officer may reasonably search the person
arrested and the area within such person’s immediate presence for the
purpose of . . . [d]iscovering the fruits, instrumentalities, or evidence of
a crime”). The Kansas Supreme Court recently struck this provision
down in light of Arizona v. Gant, 556 U. S. ___ (2009). State v. Hen
ning, 289 Kan. 136, 137, 209 P. 3d 711, 714 (2009). But it has applied
Cite as: 564 U. S. ____ (2011) 11
Opinion of the Court
“ ‘[p]enalizing the officer for the legislature’s error . . .
cannot logically contribute to the deterrence of Fourth
Amendment violations.’ ” See Krull, 480 U. S., at 350. The
same should be true of Davis’s attempt here to
“ ‘[p]enaliz[e] the officer for the [appellate judges’] error.’ ”
See ibid.About all that exclusion would deter in this case is
conscientious police work. Responsible law-enforcement
officers will take care to learn “what is required of them”
under Fourth Amendment precedent and will conform
their conduct to these rules. Hudson, 547 U. S., at 599.
But by the same token, when binding appellate precedent
specifically authorizes a particular police practice, well
trained officers will and should use that tool to fulfill their
crime-detection and public-safety responsibilities. An of
ficer who conducts a search in reliance on binding appel
late precedent does no more than “ ‘ac[t] as a reasonable
officer would and should act’ ” under the circumstances.
Leon, 468 U. S., at 920 (quoting Stone, 428 U. S., at 539–
540 (White, J., dissenting)). The deterrent effect of exclu
sion in such a case can only be to discourage the officer
from “ ‘do[ing] his duty.’ ” 468 U. S., at 920.
That is not the kind of deterrence the exclusionary rule
seeks to foster. We have stated before, and we reaffirm
today, that the harsh sanction of exclusion “should not be
applied to deter objectively reasonable law enforcement
activity.” Id., at 919. Evidence obtained during a search
conducted in reasonable reliance on binding precedent is
not subject to the exclusionary rule.
IV
JUSTICE BREYER’s dissent and Davis argue that, al
though the police conduct in this case was in no way cul
——————
Illinois v. Krull, 480 U. S. 340 (1987), and the good-faith exception to
searches conducted in reasonable reliance on the statute. See State v.
Daniel, 291 Kan. 490, 497–504, 242 P. 3d 1186, 1191–1195 (2010).
12 DAVIS v. UNITED STATES
Opinion of the Court
pable, other considerations should prevent the good-faith
exception from applying. We are not persuaded.
A
1
The principal argument of both the dissent and Davis is
that the exclusionary rule’s availability to enforce new
Fourth Amendment precedent is a retroactivity issue, see
Griffith v. Kentucky, 479 U. S. 314 (1987), not a good-faith
issue. They contend that applying the good-faith excep
tion where police have relied on overruled precedent effec
tively revives the discarded retroactivity regime of Linklet
ter v. Walker, 381 U. S. 618 (1965). See post, at 2–5.
In Linkletter, we held that the retroactive effect of a new
constitutional rule of criminal procedure should be deter
mined on a case-by-case weighing of interests. For each
new rule, Linkletter required courts to consider a three
factor balancing test that looked to the “purpose” of the
new rule, “reliance” on the old rule by law enforcement
and others, and the effect retroactivity would have “on
the administration of justice.” 381 U. S., at 636. After
“weigh[ing] the merits and demerits in each case,” courts
decided whether and to what extent a new rule should be
given retroactive effect. Id., at 629. In Linkletter itself,
the balance of interests prompted this Court to conclude
that Mapp v. Ohio, 367 U. S. 643—which incorporated the
exclusionary rule against the States—should not apply
retroactively to cases already final on direct review. 381
U. S., at 639–640. The next year, we extended Linkletter
to retroactivity determinations in cases on direct review.
See Johnson v. New Jersey, 384 U. S. 719, 733 (1966)
(holding that Miranda v. Arizona, 384 U. S. 436 (1966),
and Escobedo v. Illinois, 378 U. S. 478 (1964), applied
retroactively only to trials commenced after the decisions
were released).
Over time, Linkletter proved difficult to apply in a con
Cite as: 564 U. S. ____ (2011) 13
Opinion of the Court
sistent, coherent way. Individual applications of the
standard “produced strikingly divergent results,” see Dan
forth v. Minnesota, 552 U. S. 264, 273 (2008), that
many saw as “incompatible” and “inconsistent.” Desist v.
United States, 394 U. S. 244, 258 (1969) (Harlan, J., dis
senting). Justice Harlan in particular, who had endorsed
the Linkletter standard early on, offered a strong critique
in which he argued that “basic judicial” norms required
full retroactive application of new rules to all cases still
subject to direct review. 394 U. S., at 258–259; see also
Mackey v. United States, 401 U. S. 667, 675–702 (1971)
(Harlan, J., concurring in part and dissenting in part).
Eventually, and after more than 20 years of toil under
Linkletter, the Court adopted Justice Harlan’s view and
held that newly announced rules of constitutional criminal
procedure must apply “retroactively to all cases, state or
federal, pending on direct review or not yet final, with no
exception.” Griffith, supra, at 328.
2
The dissent and Davis argue that applying the good
faith exception in this case is “incompatible” with our
retroactivity precedent under Griffith. See post, at 2;
Reply Brief for Petitioner 3–7. We think this argument
conflates what are two distinct doctrines.
Our retroactivity jurisprudence is concerned with
whether, as a categorical matter, a new rule is available
on direct review as a potential ground for relief. Retroac
tive application under Griffith lifts what would otherwise
be a categorical bar to obtaining redress for the govern
ment’s violation of a newly announced constitutional rule.
See Danforth, supra, at 271, n. 5 (noting that it may
“make more sense to speak in terms of the ‘redressability’
of violations of new rules, rather than the ‘retroactivity’ of
such new rules”). Retroactive application does not, how
ever, determine what “appropriate remedy” (if any) the
14 DAVIS v. UNITED STATES
Opinion of the Court
defendant should obtain. See Powell v. Nevada, 511 U. S.
79, 84 (1994) (noting that it “does not necessarily follow”
from retroactive application of a new rule that the defen
dant will “gain . . . relief”). Remedy is a separate, analyti
cally distinct issue. Cf. American Trucking Assns., Inc. v.
Smith, 496 U. S. 167, 189 (1990) (plurality opinion) (“[T]he
Court has never equated its retroactivity principles with
remedial principles”). As a result, the retroactive applica
tion of a new rule of substantive Fourth Amendment law
raises the question whether a suppression remedy applies;
it does not answer that question. See Leon, 468 U. S., at
906 (“Whether the exclusionary sanction is appropriately
imposed in a particular case . . . is ‘an issue separate from
the question whether the Fourth Amendment rights of the
party seeking to invoke the rule were violated by police
conduct’ ”).
When this Court announced its decision in Gant, Davis’s
conviction had not yet become final on direct review. Gant
therefore applies retroactively to this case. Davis may
invoke its newly announced rule of substantive Fourth
Amendment law as a basis for seeking relief. See Griffith,
supra, at 326, 328. The question, then, becomes one of
remedy, and on that issue Davis seeks application of the
exclusionary rule. But exclusion of evidence does not
automatically follow from the fact that a Fourth Amend
ment violation occurred. See Evans, 514 U. S., at 13–14.
The remedy is subject to exceptions and applies only
where its “purpose is effectively advanced.” Krull, 480
U. S., at 347.
The dissent and Davis recognize that at least some of
the established exceptions to the exclusionary rule limit
its availability in cases involving new Fourth Amendment
rules. Suppression would thus be inappropriate, the
dissent and Davis acknowledge, if the inevitable-discovery
exception were applicable in this case. See post, at 3;
Reply Brief for Petitioner 22 (“Doctrines such as inevitable
Cite as: 564 U. S. ____ (2011) 15
Opinion of the Court
discovery, independent source, attenuated basis, [and]
standing . . . sharply limit the impact of newly-announced
rules”). The good-faith exception, however, is no less an
established limit on the remedy of exclusion than is inevi
table discovery. Its application here neither contravenes
Griffith nor denies retroactive effect to Gant.5
It is true that, under the old retroactivity regime of
Linkletter, the Court’s decisions on the “retroactivity prob
lem in the context of the exclusionary rule” did take
into account whether “law enforcement officers reasonably
believed in good faith” that their conduct was in compli
ance with governing law. Peltier, 422 U. S., at 535–537.
As a matter of retroactivity analysis, that approach is no
longer applicable. See Griffith, 479 U. S. 314. It does not
follow, however, that reliance on binding precedent is
irrelevant in applying the good-faith exception to the
exclusionary rule. When this Court adopted the good-faith
exception in Leon, the Court’s opinion explicitly relied on
Peltier and imported its reasoning into the good-faith
inquiry. See 468 U. S., at 918–919. That reasonable
reliance by police was once a factor in our retroactivity
cases does not make it any less relevant under our Leon
——————
5 The dissent argues that the good-faith exception is “unlike . . . inevi
table discovery” because the former applies in all cases where the police
reasonably rely on binding precedent, while the latter “applies only
upon occasion.” Post, at 3. We fail to see how this distinction makes
any difference. The same could be said—indeed, the same was said—of
searches conducted in reasonable reliance on statutes. See Krull, 480
U. S., at 368–369 (O’Connor, J., dissenting) (arguing that result in
Krull was inconsistent with Griffith). When this Court strikes down a
statute on Fourth Amendment grounds, the good-faith exception may
prevent the exclusionary rule from applying “in every case pending
when [the statute] is overturned.” Post, at 3. This result does not
make the Court’s newly announced rule of Fourth Amendment law any
less retroactive. It simply limits the applicability of a suppression
remedy. See Krull, supra, at 354–355, n. 11.
16 DAVIS v. UNITED STATES
Opinion of the Court
line of cases.6
B
Davis also contends that applying the good-faith ex
ception to searches conducted in reliance on binding pre
cedent will stunt the development of Fourth Amendment
law. With no possibility of suppression, criminal defen
dants will have no incentive, Davis maintains, to request
that courts overrule precedent.7
1
This argument is difficult to reconcile with our modern
understanding of the role of the exclusionary rule. We
have never held that facilitating the overruling of prece
dent is a relevant consideration in an exclusionary-rule
case. Rather, we have said time and again that the sole
purpose of the exclusionary rule is to deter misconduct by
law enforcement. See, e.g., Sheppard, 468 U. S., at 990(“ ‘adopted to deter unlawful searches by police’ ”); Evans,
supra, at 14 (“historically designed as a means of deterring
police misconduct”).
We have also repeatedly rejected efforts to expand the
focus of the exclusionary rule beyond deterrence of culpa
ble police conduct. In Leon, for example, we made clear
——————
6 Nor does United States v. Johnson, 457 U. S. 537 (1982), foreclose
application of the good-faith exception in cases involving changing law.
Johnson distinguished Peltier and held that all Fourth Amendment
cases should be retroactive on direct review so long as the new decision
is not a “clear break” from prior precedent. 457 U. S., at 562. Johnson
had no occasion to opine on the good-faith exception to the exclusionary
rule, which we adopted two years later in Leon.
7 Davis also asserts that a good-faith rule would permit “new Fourth
Amendment decisions to be applied only prospectively,” thus amounting
to “a regime of rule-creation by advisory opinion.” Brief for Petitioner
23, 25. For reasons discussed in connection with Davis’s argument that
application of the good-faith exception here would revive the Linkletter
regime, this argument conflates the question of retroactivity with the
question of remedy.
Cite as: 564 U. S. ____ (2011) 17
Opinion of the Court
that “the exclusionary rule is designed to deter police
misconduct rather than to punish the errors of judges.”
468 U. S., at 916; see id., at 918 (“If exclusion of evidence
obtained pursuant to a subsequently invalidated warrant
is to have any deterrent effect . . . it must alter the behav
ior of individual law enforcement officers or the policies of
their departments”). Krull too noted that “legislators, like
judicial officers, are not the focus” of the exclusionary rule.
480 U. S., at 350. And in Evans, we said that the exclu
sionary rule was aimed at deterring “police misconduct,
not mistakes by court employees.” 514 U. S., at 14. These
cases do not suggest that the exclusionary rule should be
modified to serve a purpose other than deterrence of cul
pable law-enforcement conduct.
2
And in any event, applying the good-faith exception in
this context will not prevent judicial reconsideration of
prior Fourth Amendment precedents. In most instances,
as in this case, the precedent sought to be challenged will
be a decision of a Federal Court of Appeals or State Su
preme Court. But a good-faith exception for objectively
reasonable reliance on binding precedent will not prevent
review and correction of such decisions. This Court re
views criminal convictions from 12 Federal Courts of
Appeals, 50 state courts of last resort, and the District of
Columbia Court of Appeals. If one or even many of these
courts uphold a particular type of search or seizure, defen
dants in jurisdictions in which the question remains open
will still have an undiminished incentive to litigate the
issue. This Court can then grant certiorari, and the de
velopment of Fourth Amendment law will in no way be
stunted.8
——————
8 The dissent does not dispute this point, but it claims that the good
faith exception will prevent us from “rely[ing] upon lower courts to
work out Fourth Amendment differences among themselves.” Post, at
18 DAVIS v. UNITED STATES
Opinion of the Court
Davis argues that Fourth Amendment precedents of this
Court will be effectively insulated from challenge under a
good-faith exception for reliance on appellate precedent.
But this argument is overblown. For one thing, it is im
portant to keep in mind that this argument applies to an
exceedingly small set of cases. Decisions overruling this
Court’s Fourth Amendment precedents are rare. Indeed,
it has been more than 40 years since the Court last
handed down a decision of the type to which Davis refers.
Chimel v. California, 395 U. S. 752 (overruling United
States v. Rabinowitz, 339 U. S. 56 (1950), and Harris v.
United States, 331 U. S. 145 (1947)). And even in those
cases, Davis points out that no fewer than eight separate
doctrines may preclude a defendant who successfully
challenges an existing precedent from getting any relief.
Brief for Petitioner 50. Moreover, as a practical matter,
defense counsel in many cases will test this Court’s Fourth
Amendment precedents in the same way that Belton was
tested in Gant—by arguing that the precedent is distin
guishable. See Brief for Respondent in Arizona v. Gant,
O. T. 2008, No. 07–542, pp. 22–29.9
At most, Davis’s argument might suggest that—to
prevent Fourth Amendment law from becoming ossified—
the petitioner in a case that results in the overruling of
one of this Court’s Fourth Amendment precedents should
——————
5. If that is correct, then today’s holding may well lead to more circuit
splits in Fourth Amendment cases and a fuller docket of Fourth
Amendment cases in this Court. See this Court’s Rule 10. Such a state
of affairs is unlikely to result in ossification of Fourth Amendment
doctrine.
9 Where the search at issue is conducted in accordance with a munici
pal “policy” or “custom,” Fourth Amendment precedents may also be
challenged, without the obstacle of the good-faith exception or qualified
immunity, in civil suits against municipalities. See 42 U. S. C. §1983;
Los Angeles County v. Humphries, 562 U. S. ___, ___ (2010) (slip op., at
7) (citing Monell v. New York City Dept. of Social Servs., 436 U. S. 658,
690–691 (1978)).
Cite as: 564 U. S. ____ (2011) 19
Opinion of the Court
be given the benefit of the victory by permitting the sup
pression of evidence in that one case. Such a result would
undoubtedly be a windfall to this one random litigant.
But the exclusionary rule is “not a personal constitutional
right.” Stone, 428 U. S., at 486. It is a “judicially created”
sanction, Calandra, 414 U. S., at 348, specifically designed
as a “windfall” remedy to deter future Fourth Amendment
violations. See Stone, supra, at 490. The good-faith excep
tion is a judicially created exception to this judicially
created rule. Therefore, in a future case, we could, if
necessary, recognize a limited exception to the good-faith
exception for a defendant who obtains a judgment over
ruling one of our Fourth Amendment prece-
dents. Cf. Friendly, The Bill of Rights as a Code of
Criminal Procedure, 53 Cal. L. Rev. 929, 952–953 (1965)
(“[T]he same authority that empowered the Court to sup
plement the amendment by the exclusionary rule a hun
dred and twenty-five years after its adoption, likewise
allows it to modify that rule as the lessons of experience
may teach” (internal quotation marks and footnotes
omitted)).10
——————
10 Davis contends that a criminal defendant will lack Article III
standing to challenge an existing Fourth Amendment precedent if the
good-faith exception to the exclusionary rule precludes the defendant
from obtaining relief based on police conduct that conformed to that
precedent. This argument confuses weakness on the merits with
absence of Article III standing. See ASARCO Inc. v. Kadish, 490 U. S.
605, 624 (1989) (standing does not “ ‘depen[d] on the merits of [a
claim]’ ”). And as a practical matter, the argument is also overstated.
In many instances, as in Gant, see 556 U. S., at __ (slip op., at 8),
defendants will not simply concede that the police conduct conformed to
the precedent; they will argue instead that the police conduct did not
fall within the scope of the precedent.
In any event, even if some criminal defendants will be unable to
challenge some precedents for the reason that Davis suggests, that
provides no good reason for refusing to apply the good-faith exception.
As noted, the exclusionary rule is not a personal right, see Stone, 428
U. S., at 486, 490, and therefore the rights of these defendants will not
20 DAVIS v. UNITED STATES
Opinion of the Court
But this is not such a case. Davis did not secure a deci
sion overturning a Supreme Court precedent; the police in
his case reasonably relied on binding Circuit precedent.
See United States v. Gonzalez, 71 F. 3d 819. That sort of
blameless police conduct, we hold, comes within the good
faith exception and is not properly subject to the exclu
sionary rule.
* * *
It is one thing for the criminal “to go free because the
constable has blundered.” People v. Defore, 242 N. Y. 13,
21, 150 N. E. 585, 587 (1926) (Cardozo, J.). It is quite
another to set the criminal free because the constable has
scrupulously adhered to governing law. Excluding evi
dence in such cases deters no police misconduct and im
poses substantial social costs. We therefore hold that
when the police conduct a search in objectively reasonable
reliance on binding appellate precedent, the exclusionary
rule does not apply. The judgment of the Court of Appeals
for the Eleventh Circuit is
Affirmed.
——————
be impaired. And because (at least in almost all instances) the prece
dent can be challenged by others, Fourth Amendment case law will not
be insulated from reconsideration.
Cite as: 564 U. S. ____ (2011) 1
SOTOMAYOR, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–11328
_________________
WILLIE GENE DAVIS, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 16, 2011]
JUSTICE SOTOMAYOR, concurring in the judgment.
Under our precedents, the primary purpose of the exclu
sionary rule is “to deter future Fourth Amendment viola
tions.” Ante, at 6; see, e.g., Herring v. United States, 555
U. S. 135, 141 (2009); Illinois v. Krull, 480 U. S. 340, 347–
348 (1987). Accordingly, we have held, application of the
exclusionary rule is unwarranted when it “ ‘does not result
in appreciable deterrence.’ ” Arizona v. Evans, 514 U. S. 1,
11 (1995) (quoting United States v. Janis, 428 U. S. 433,
454 (1976)). In the circumstances of this case, where
“binding appellate precedent specifically authorize[d] a
particular police practice,” ante, at 11—in accord with
the holdings of nearly every other court in the country—
application of the exclusionary rule cannot reasonably
be expected to yield appreciable deterrence. I am thus
compelled to conclude that the exclusionary rule does
not apply in this case and to agree with the Court’s
disposition.
This case does not present the markedly different ques
tion whether the exclusionary rule applies when the law
governing the constitutionality of a particular search is
unsettled. As we previously recognized in deciding
whether to apply a Fourth Amendment holding retroac
tively, when police decide to conduct a search or seizure in
the absence of case law (or other authority) specifically
2 DAVIS v. UNITED STATES
SOTOMAYOR, J., concurring in judgment
sanctioning such action, exclusion of the evidence obtained
may deter Fourth Amendment violations:
“If, as the Government argues, all rulings resolving
unsettled Fourth Amendment questions should be
nonretroactive, then, in close cases, law enforcement
officials would have little incentive to err on the side
of constitutional behavior. Official awareness of the
dubious constitutionality of a practice would be coun
terbalanced by official certainty that, so long as the
Fourth Amendment law in the area remained un
settled, evidence obtained through the questionable
practice would be excluded only in the one case
definitively resolving the unsettled question.” United
States v. Johnson, 457 U. S. 537, 561 (1982) (footnote
omitted).
The Court of Appeals recognized as much in limiting its
application of the good-faith exception it articulated in this
case to situations where its “precedent on a given point [is]
unequivocal.” 598 F. 3d 1259, 1266 (CA11 2010); see id.,at 1266–1267 (“[W]e do not mean to encourage police to
adopt a ‘ “let’s-wait-until-it’s-decided approach” ’ to ‘unset
tled’ questions of Fourth Amendment law” (quoting John
son, 457 U. S., at 561)). Whether exclusion would deter
Fourth Amendment violations where appellate precedent
does not specifically authorize a certain practice and, if so,
whether the benefits of exclusion would outweigh its costs
are questions unanswered by our previous decisions.
The dissent suggests that today’s decision essentially
answers those questions, noting that an officer who con
ducts a search in the face of unsettled precedent “is no
more culpable than an officer who follows erroneous ‘bind
ing precedent.’ ” Post, at 7 (opinion of BREYER, J.). The
Court does not address this issue. In my view, whether an
officer’s conduct can be characterized as “culpable” is not
itself dispositive. We have never refused to apply the
Cite as: 564 U. S. ____ (2011) 3
SOTOMAYOR, J., concurring in judgment
exclusionary rule where its application would appreciably
deter Fourth Amendment violations on the mere ground
that the officer’s conduct could be characterized as noncul
pable. Rather, an officer’s culpability is relevant because
it may inform the overarching inquiry whether exclusion
would result in appreciable deterrence. See ante, at 8
(“The basic insight of the Leon line of cases is that the
deterrence benefits of exclusion var[y] with the culpability
of the law enforcement conduct at issue” (internal quota
tion marks omitted; alteration in original)); see also, e.g.,
Herring, 555 U. S., at 143 (“The extent to which the exclu
sionary rule is justified by these deterrence principles
varies with the culpability of the law enforcement con
duct”); United States v. Leon, 468 U. S. 897, 919 (1984)
(“ ‘Where the official action was pursued in complete good
faith, . . . the deterrence rationale loses much of its force’ ”
(quoting Michigan v. Tucker, 417 U. S. 433, 447 (1974))).
Whatever we have said about culpability, the ultimate ques
tions have always been, one, whether exclusion would
result in appreciable deterrence and, two, whether the
benefits of exclusion outweigh its costs. See, e.g., ante, at
6–7; Herring, 555 U. S., at 141; Krull, 480 U. S., at 347.
As stated, whether exclusion would result in appreciable
deterrence in the circumstances of this case is a different
question from whether exclusion would appreciably deter
Fourth Amendment violations when the governing law is
unsettled. The Court’s answer to the former question in
this case thus does not resolve the latter one.
Cite as: 564 U. S. ____ (2011) 1
BREYER, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 09–11328
_________________
WILLIE GENE DAVIS, PETITIONER v. UNITED
STATES
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT
[June 16, 2011]
JUSTICE BREYER, with whom JUSTICE GINSBURG joins,
dissenting.
In 2009, in Arizona v. Gant, 556 U. S. ___, this Court
held that a police search of an automobile without a war
rant violates the Fourth Amendment if the police have pre
viously removed the automobile’s occupants and placed
them securely in a squad car. The present case involves
these same circumstances, and it was pending on appeal
when this Court decided Gant. Because Gant represents a
“shift” in the Court’s Fourth Amendment jurisprudence,
ante, at 1, we must decide whether and how Gant’s new
rule applies here.
I
I agree with the Court about whether Gant’s new rule
applies. It does apply. Between 1965, when the Court
decided Linkletter v. Walker, 381 U. S. 618, and 1987,
when it decided Griffith v. Kentucky, 479 U. S. 314, that
conclusion would have been more difficult to reach. Under
Linkletter, the Court determined a new rule’s retroactivity
by looking to several different factors, including whether
the new rule represented a “clear break” with the past and
the degree of “reliance by law enforcement authorities on
the old standards.” Desist v. United States, 394 U. S. 244,
248–249 (1969) (internal quotation marks omitted) (also
2 DAVIS v. UNITED STATES
BREYER, J., dissenting
citing “the purpose to be served by the new standards”
and “the effect on the administration of justice” as factors
(internal quotation marks omitted)). And the Court would
often not apply the new rule to identical cases still pend
ing on appeal. See ibid.After 22 years of struggling with its Linkletter approach,
however, the Court decided in Griffith that Linkletter
had proved unfair and unworkable. It then substituted a
clearer approach, stating that “a new rule for the conduct
of criminal prosecutions is to be applied retroactively to all
cases, state or federal, pending on direct review or not yet
final, with no exception for cases in which the new rule
constitutes a ‘clear break’ with the past.” 479 U. S., at
328. The Court today, following Griffith, concludes that
Gant’s new rule applies here. And to that extent I agree
with its decision.
II
The Court goes on, however, to decide how Gant’s new
rule will apply. And here it adds a fatal twist. While
conceding that, like the search in Gant, this search vio
lated the Fourth Amendment, it holds that, unlike Gant,
this defendant is not entitled to a remedy. That is be
cause the Court finds a new “good faith” exception which
prevents application of the normal remedy for a Fourth
Amendment violation, namely, suppression of the illegally
seized evidence. Weeks v. United States, 232 U. S. 383(1914); Mapp v. Ohio, 367 U. S. 643 (1961). Leaving Davis
with a right but not a remedy, the Court “keep[s] the word
of promise to our ear” but “break[s] it to our hope.”
A
At this point I can no longer agree with the Court. A
new “good faith” exception and this Court’s retroactivity
decisions are incompatible. For one thing, the Court’s
distinction between (1) retroactive application of a new
Cite as: 564 U. S. ____ (2011) 3
BREYER, J., dissenting
rule and (2) availability of a remedy is highly artificial and
runs counter to precedent. To determine that a new rule
is retroactive is to determine that, at least in the normal
case, there is a remedy. As we have previously said, the
“source of a ‘new rule’ is the Constitution itself, not any
judicial power to create new rules of law”; hence, “[w]hat
we are actually determining when we assess the ‘retroac
tivity’ of a new rule is not the temporal scope of a newly
announced right, but whether a violation of the right that
occurred prior to the announcement of the new rule will
entitle a criminal defendant to the relief sought.” Dan
forth v. Minnesota, 552 U. S. 264, 271 (2008). The Court’s
“good faith” exception (unlike, say, inevitable discovery, a
remedial doctrine that applies only upon occasion) creates
“a categorical bar to obtaining redress” in every case pend
ing when a precedent is overturned. Ante, at 13–14.
For another thing, the Court’s holding re-creates the
very problems that led the Court to abandon Linkletter’s
approach to retroactivity in favor of Griffith’s. One such
problem concerns workability. The Court says that its
exception applies where there is “objectively reasonable”
police “reliance on binding appellate precedent.” Ante, at
1, 19. But to apply the term “binding appellate precedent”
often requires resolution of complex questions of degree.
Davis conceded that he faced binding anti-Gant precedent
in the Eleventh Circuit. But future litigants will be less
forthcoming. Ante, at 18. Indeed, those litigants will now
have to create distinctions to show that previous Circuit
precedent was not “binding” lest they find relief foreclosed
even if they win their constitutional claim.
At the same time, Fourth Amendment precedents fre
quently require courts to “slosh” their “way through the
factbound morass of ‘reasonableness.’ ” Scott v. Harris,
550 U. S. 372, 383 (2007). Suppose an officer’s conduct is
consistent with the language of a Fourth Amendment rule
that a court of appeals announced in a case with clearly
4 DAVIS v. UNITED STATES
BREYER, J., dissenting
distinguishable facts? Suppose the case creating the rele
vant precedent did not directly announce any general
rule but involved highly analogous facts? What about a
rule that all other jurisdictions, but not the defendant’s
jurisdiction, had previously accepted? What rules can be
developed for determining when, where, and how these
different kinds of precedents do, or do not, count as rele
vant “binding precedent”? The Linkletter-like result is
likely complex legal argument and police force confusion.
See Williams v. United States, 401 U. S. 646, 676 (1971)
(opinion of Harlan, J.) (describing trying to follow Linklet
ter decisions as “almost as difficult” as trying to follow “the
tracks made by a beast of prey in search of its intended
victim”).
Another such problem concerns fairness. Today’s hold
ing, like that in Linkletter, “violates basic norms of con
stitutional adjudication.” Griffith, supra, at 322. It treats
the defendant in a case announcing a new rule one way
while treating similarly situated defendants whose cases
are pending on appeal in a different way. See ante, at 18–
19. Justice Harlan explained why this approach is wrong
when he said:
“We cannot release criminals from jail merely because
we think one case is a particularly appropriate one [to
announce a constitutional doctrine] . . . . Simply fish
ing one case from the stream of appellate review, us
ing it as a vehicle for pronouncing new constitutional
standards, and then permitting a stream of similar
cases subsequently to flow by unaffected by that new
rule constitute an indefensible departure from [our
ordinary] model of judicial review.” Williams, supra,
at 679.
And in Griffith, the Court “embraced to a significant ex
tent the comprehensive analysis presented by Justice
Harlan.” 479 U. S., at 322.
Cite as: 564 U. S. ____ (2011) 5
BREYER, J., dissenting
Of course, the Court may, as it suggests, avoid this un
fairness by refusing to apply the exclusionary rule even
to the defendant in the very case in which it announces a
“new rule.” But that approach would make matters worse.
What would then happen in the lower courts? How would
courts of appeals, for example, come to reconsider their
prior decisions when other circuits’ cases lead them to
believe those decisions may be wrong? Why would a de
fendant seek to overturn any such decision? After all, if
the (incorrect) circuit precedent is clear, then even if
the defendant wins (on the constitutional question), he
loses (on relief). See Stovall v. Denno, 388 U. S. 293, 301
(1967). To what extent then could this Court rely upon
lower courts to work out Fourth Amendment differences
among themselves—through circuit reconsideration of a
precedent that other circuits have criticized? See Ari-
zona v. Evans, 514 U. S. 1, 23, n. 1 (1995) (GINSBURG, J.,
dissenting).
B
Perhaps more important, the Court’s rationale for creat
ing its new “good faith” exception threatens to undermine
well-settled Fourth Amendment law. The Court correctly
says that pre-Gant Eleventh Circuit precedent had held
that a Gant-type search was constitutional; hence the
police conduct in this case, consistent with that precedent,
was “innocent.” Ante, at 10. But the Court then finds this
fact sufficient to create a new “good faith” exception to the
exclusionary rule. It reasons that the “sole purpose” of the
exclusionary rule “is to deter future Fourth Amendment
violations,” ante, at 6. The “deterrence benefits of exclu
sion vary with the culpability of the law enforcement
conduct at issue,” ante, at 8 (internal quotation marks and
brackets omitted). Those benefits are sufficient to jus
tify exclusion where “police exhibit deliberate, reckless,
or grossly negligent disregard for Fourth Amendment
6 DAVIS v. UNITED STATES
BREYER, J., dissenting
rights,” ibid. (internal quotation marks omitted). But
those benefits do not justify exclusion where, as here, the
police act with “simple, isolated negligence” or an “objec
tively reasonable good-faith belief that their conduct is
lawful,” ibid. (internal quotation marks omitted).
If the Court means what it says, what will happen to the
exclusionary rule, a rule that the Court adopted nearly a
century ago for federal courts, Weeks v. United States, 232
U. S. 383, and made applicable to state courts a half cen
tury ago through the Fourteenth Amendment, Mapp v.
Ohio, 367 U. S. 643? The Court has thought of that rule
not as punishment for the individual officer or as repara
tion for the individual defendant but more generally as
an effective way to secure enforcement of the Fourth
Amendment’s commands. Weeks, supra, at 393 (without
the exclusionary rule, the Fourth Amendment would be “of
no value,” and “might as well be stricken from the Consti
tution”). This Court has deviated from the “suppression”
norm in the name of “good faith” only a handful of times
and in limited, atypical circumstances: where a magistrate
has erroneously issued a warrant, United States v. Leon,
468 U. S. 897 (1984); where a database has erroneously
informed police that they have a warrant, Arizona v.
Evans, 514 U. S. 1 (1995), Herring v. United States, 555
U. S. 135 (2009); and where an unconstitutional statute
purported to authorize the search, Illinois v. Krull, 480
U. S. 340 (1987). See Herring, supra, at 142 (“good faith”
exception inaptly named).
The fact that such exceptions are few and far between is
understandable. Defendants frequently move to suppress
evidence on Fourth Amendment grounds. In many, per
haps most, of these instances the police, uncertain of how
the Fourth Amendment applied to the particular factual
circumstances they faced, will have acted in objective good
faith. Yet, in a significant percentage of these instances,
courts will find that the police were wrong. And, unless
Cite as: 564 U. S. ____ (2011) 7
BREYER, J., dissenting
the police conduct falls into one of the exceptions previ
ously noted, courts have required the suppression of the
evidence seized. 1 W. LaFave, Search and Seizure §1.3,
pp. 103–104 (4th ed. 2004) (“good faith” exception has not
yet been applied to warrantless searches and seizures
beyond the “rather special situations” of Evans, Herring,
and Krull). See Valdes, Frequency and Success: An Em
pirical Study of Criminal Law Defenses, Federal Constitu
tional Evidentiary Claims, and Plea Negotiations, 153
U. Pa. L. Rev. 1709, 1728 (2005) (suppression motions are
filed in approximately 7% of criminal cases; approximately
12% of suppression motions are successful); LaFave, su
pra, at 64 (“Surely many more Fourth Amendment viola
tions result from carelessness than from intentional con
stitutional violations”); Stewart, The Road to Mapp v.
Ohio and Beyond: The Origins, Development and Future
of the Exclusionary Rule in Search-and-Seizure Cases, 83
Colum. L. Rev. 1365, 1389 (1983) (“[T]he vast majority of
fourth amendment violations . . . [are] motivated by com
mendable zeal, not condemnable malice”).
But an officer who conducts a search that he believes
complies with the Constitution but which, it ultimately
turns out, falls just outside the Fourth Amendment’s
bounds is no more culpable than an officer who follows
erroneous “binding precedent.” Nor is an officer more
culpable where circuit precedent is simply suggestive
rather than “binding,” where it only describes how to treat
roughly analogous instances, or where it just does not
exist. Thus, if the Court means what it now says, if it
would place determinative weight upon the culpability of
an individual officer’s conduct, and if it would apply the
exclusionary rule only where a Fourth Amendment viola
tion was “deliberate, reckless, or grossly negligent,” then
the “good faith” exception will swallow the exclusionary
rule. Indeed, our broad dicta in Herring—dicta the Court
repeats and expands upon today—may already be leading
8 DAVIS v. UNITED STATES
BREYER, J., dissenting
lower courts in this direction. See United States v. Julius,
610 F. 3d 60, 66–67 (CA2 2010) (assuming warrantless
search was unconstitutional and remanding for District
Court to “perform the cost/benefit analysis required by
Herring” and to consider “whether the degree of police
culpability in this case rose beyond mere . . . negligence”
before ordering suppression); United States v. Master, 614
F. 3d 236, 243 (CA6 2010) (“[T]he Herring Court’s empha
sis seems weighed more toward preserving evidence for
use in obtaining convictions, even if illegally seized . . .
unless the officers engage in ‘deliberate, reckless, or
grossly negligent conduct’ ” (quoting Herring, supra, at
144)). Today’s decision will doubtless accelerate this
trend.
Any such change (which may already be underway)
would affect not “an exceedingly small set of cases,” ante,
at 18, but a very large number of cases, potentially many
thousands each year. See Valdes, supra, at 1728. And
since the exclusionary rule is often the only sanction avail
able for a Fourth Amendment violation, the Fourth
Amendment would no longer protect ordinary Americans
from “unreasonable searches and seizures.” See Wolf v.
Colorado, 338 U. S. 25, 41 (1949) (Murphy, J., dissenting)
(overruled by Mapp v. Ohio, 367 U. S. 643 (1961)) (In
many circumstances, “there is but one alternative to the
rule of exclusion. That is no sanction at all”); Herring,
supra, at 152 (GINSBURG, J., dissenting) (the exclusionary
rule is “an essential auxiliary” to the Fourth Amendment).
It would become a watered-down Fourth Amendment,
offering its protection against only those searches and sei
zures that are egregiously unreasonable.
III
In sum, I fear that the Court’s opinion will undermine
the exclusionary rule. And I believe that the Court
wrongly departs from Griffith regardless. Instead I would
Cite as: 564 U. S. ____ (2011) 9
BREYER, J., dissenting
follow Griffith, apply Gant’s rule retroactively to this
case, and require suppression of the evidence. Such an ap
proach is consistent with our precedent, and it would
indeed affect no more than “an exceedingly small set of
cases.” Ante, at 18.
For these reasons, with respect, I dissent.