FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 07-30098

Plaintiff-Appellee, D.C. No.

v. CR-06-02112-EFS  Eastern District of RICARDO GONZALEZ, Washington, Defendant-Appellant.

Spokane

ORDER 

Filed March 16, 2010

Before: Betty B. Fletcher, Richard A. Paez, and

N. Randy Smith, Circuit Judges.

Order;

Concurrence by Judge B. Fletcher;

Dissent by Judge Bea

ORDER

The panel has voted to deny the Petition for Rehearing.

Judges Paez and N.R. Smith have voted to deny the Petition

for Rehearing En Banc, and Judge B. Fletcher has so recommended. 

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to hear the matter

en banc. The matter failed to receive a majority of the votes

of the nonrecused active judges in favor of en banc consideration. See Fed. R. App. P. 35. 

The petition for rehearing and the petition for rehearing en

banc are DENIED.

4323
B. FLETCHER, PAEZ, and N.R. SMITH, Circuit Judges,

concurring in the denial of rehearing en banc:

Judge Bea’s dissent presents a distorted view of what this

case is all about. It requires a response that can be part of the

public record. Otherwise our panel’s reasoned response to the

en banc call would remain hidden from public view.

At the time of our original disposition, the Supreme Court

had not decided Arizona v. Gant, 129 S. Ct. 1710 (2009). Our

circuit interpreted New York v. Belton, 453 U.S. 454 (1981),

to allow law enforcement to search the passenger compartment of a vehicle so long as the search was “roughly contemporaneous with the arrest” of the vehicle’s occupant. United

States v. Weaver, 433 F.3d 1104, 1106 (9th Cir. 2006) (citation and quotation marks omitted). Accordingly, our panel in

its original disposition concluded that the search of Defendant

Gonzalez’s vehicle did not violate the Fourth Amendment.

While Gonzalez’s petition for certiorari was pending, the

Supreme Court decided Gant, holding that a number of state

and federal courts, including ours, had improperly interpreted

Belton. Far from announcing a new rule and overruling Belton, the Court explained that our precedent had misinterpreted

Belton by ignoring that Belton is the progeny of Chimel v.

California, 395 U.S. 752 (1969). We had “untether[ed]” Belton “from the justifications underlying the Chimel exception,”

which allows searches incident to lawful arrests, but limits

those searches solely to “the arrestee’s person and the area . . .

within which he might gain possession of a weapon or

destructible evidence” at the time of the search. Gant, 129 S.

Ct. at 1716, 1719 (citation and quotation marks omitted). 

The Supreme Court granted Gonzalez’s certiorari petition,

vacated our panel’s decision, and remanded to us “for further

consideration in light of Arizona v. Gant.” Quintana v. United

States, 129 S. Ct. 2156 (2009) (citation omitted). In our decision on remand, we faithfully followed its instructions. We

4324 UNITED STATES v. GONZALEZ
applied Gant consistent with the Supreme Court’s precedents

on the application of the exclusionary rule and on retroactivity. See United States v. Gonzalez, 578 F.3d 1130 (9th Cir.

2009).

Judge Bea’s bold pronouncement that we disregarded Herring v. United States, 129 S. Ct. 695 (2009), and Illinois v.

Krull, 480 U.S. 340 (1987), is wrong. 

Indeed, we followed the teaching of the Herring Court that

“the benefits of deterrence must outweigh the costs.” 129 S.

Ct. at 700. In Gant, the Court decided that in cases such as

Gonzalez, the benefits of deterrence do outweigh the costs. It

held that where, as in Gant, “it is clear that a [law enforcement] practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement ‘entitlement’

to its persistence.” Gant, 129 S. Ct. at 1723. Because the

unconstitutionality of the searches in Gant and this case was

“clear,” the searches never should have occurred. They were

unlawful ab initio. As a consequence, Gant held that deterrence of such searches trumps the costs of exclusion. Judge

Bea’s argument in support of the dissenters in Gant is to no

avail. Let him disagree with the Supreme Court, if he must,

but not with our adherence to the Court’s dictates.

Krull, for its part, is inapposite. It concerns law enforcement’s reliance on a statute and not the interpretation of case

law. The controlling authority for this case was United States

v. Johnson, 457 U.S. 537 (1982), not Krull as advocated by

Judge Bea. The panel correctly followed Johnson.

Finally, the reader should bear in mind that this case deals

with a defendant’s right to suppress evidence obtained by an

unconstitutional search. It does not involve whether the officers who conducted the search are entitled to qualified immunity. The rights of the defendant, not those of the police, are

at issue. The dissent persists in its view that discipline of

police is at issue rather than individual rights. See Dissent at

UNITED STATES v. GONZALEZ 4325
4347-48 (“Here, the panel confuses the retroactive application

of a Supreme Court decision in the area of individual rights

(a jury picked without racial motivation) with what is an area

of societal rights (suppression of evidence to discipline

police).”).

I

The precedents that controlled our decision in Gonzalez

were those dealing with retroactivity. All agree that when

Gant was decided, defendant Gonzalez’s conviction had not

yet become final. All agree that under Gant, the search in our

case was unconstitutional. Looking to the Supreme Court’s

precedents on retroactivity, we applied Gant, holding that the

search was unconstitutional and that the evidence seized

should be suppressed. 

When the Supreme Court clarifies the boundaries of a constitutional search in one case, in fairness, that clarification

must be consistently applied to all cases that are not yet final.

That policy was applied in Johnson, 457 U.S. 537, and Griffith v. Kentucky, 479 U.S. 314 (1987). 

The question in Johnson was whether Payton v. New York,

445 U.S. 573 (1980), should be applied retroactively to

exclude evidence in cases pending on direct appeal. The government argued that the exclusionary rule should not apply to

evidence seized in good-faith reliance on pre-Payton law. We

quote the Court’s rejection of that argument: 

The Government [relies] on [United States v.] Peltier’s broad language: “If the purpose of the exclusionary rule is to deter unlawful police conduct then

evidence obtained from a search should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be

charged with knowledge, that the search was unconstitutional under the Fourth Amendment” (emphasis

4326 UNITED STATES v. GONZALEZ
added). The Government reads this language to

require that new Fourth Amendment rules must be

denied retroactive effect in all cases except those in

which law enforcement officers failed to act in goodfaith compliance with then-prevailing constitutional

norms.

. . . Under the Government’s theory, because the

state of Fourth Amendment law regarding warrantless home arrests was “unsettled” before Payton, that

ruling should not apply retroactively even to cases

pending on direct appeal when Payton was decided.

Yet the Government’s reading of Peltier would

reduce its own “retroactivity test” to an absurdity.

Under this view, the only Fourth Amendment rulings

worthy of retroactive application are those in which

the arresting officers violated pre-existing guidelines

clearly established by prior cases. But as we have

seen above, cases involving simple application of

clear, pre-existing Fourth Amendment guidelines

raise no real questions of retroactivity at all. Literally

read, the Government’s theory would automatically

eliminate all Fourth Amendment rulings from consideration for retroactive application.

The Government’s [next] claim is that Peltier’s

logic suggests that retroactive application of Fourth

Amendment decisions like Payton even to cases

pending on direct review—would not serve the policies underlying the exclusionary rule. . . . 

. . . .

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

UNITED STATES v. GONZALEZ 4327
of constitutional behavior. Official awareness of the

dubious constitutionality of a practice would be

counterbalanced by official certainty that, so long as

the Fourth Amendment law in the area remained

unsettled, evidence obtained through the questionable practice would be excluded only in the one case

definitively resolving the unsettled question. Failure

to accord any retroactive effect to Fourth Amendment rulings would “encourage police or other

courts to disregard the plain purport of our decisions

and to adopt a let’s-wait-until-it’s-decided

approach.”

457 U.S. at 559-61 (citations omitted). Like Payton, Gant

clarified a point of law that the Court had not yet explicitly

addressed: the scope of the Court’s holding in Belton. Compare State v. Gant, 162 P.3d 640, 645 (Ariz. 2007) (majority

opinion) (“We do not . . . read Belton or Thornton as abandoning the Chimel justifications for the search incident to

arrest exception.”), with id. at 647 (Bales, J., dissenting)

(“The validity of a Belton search . . . clearly does not depend

on the presence of the Chimel rationales in a particular

case.”). As does Judge Bea, the United States in Johnson

argued that excluding evidence seized in violation of Payton

would not appreciably deter police misconduct. That argument was made, and the Johnson Court firmly rejected it; our

panel was compelled to do so also. 

Griffith—which was decided after the Supreme Court recognized the good-faith exception in United States v. Leon,

468 U.S. 897 (1984)—reaffirmed Johnson’s “holding that

‘subject to [certain exceptions], a decision of this Court construing the Fourth Amendment is to be applied retroactively

to all convictions that were not yet final at the time the decision was rendered.’ ” 479 U.S. at 324 (quoting Johnson, 457

U.S. at 562). Like Johnson, it explicitly considered and

rejected “ ‘reliance by law enforcement authorities on the old

standards’ ” as a reason not to apply a Fourth Amendment

4328 UNITED STATES v. GONZALEZ
decision retroactively. Id. at 324-25 (quoting Johnson, 457

U.S. at 549). Johnson and Griffith compel the result the panel

reached. 

Judge Bea relies on United States v. Peltier, 422 U.S. 531

(1975), which declined to apply Almeida-Sanchez v. United

States, 413 U.S. 266 (1973), retrospectively. In light of Johnson, we think his reliance misplaced. The Johnson Court

made clear that Peltier’s holding applied only to cases that

“work[ed] a sharp break in the web of the law.” 457 U.S. at

551 (citation and quotation marks omitted). The Gant majority stated that its holding worked no such break. See Gant,

129 S. Ct. at 1719, 1722 & n.9 (reasoning that holding followed straightforwardly from Chimel and that the facts of

Belton and Thornton v. United States, 541 U.S. 615 (2004),

were “easily distinguished”). In arguing otherwise, Judge Bea

sides with the Gant dissenters. See id. at 1726 (Alito, J., dissenting) (contending that majority’s holding created a “new

rule”).

Judge Bea also relies on Krull to argue against the exclusion of evidence in this case. Krull dealt with law enforcement reliance on a statute, which like most statutes, carries the

presumption of constitutionality. 480 U.S. at 342. Here, by

contrast, law enforcement relied on a misapplication of Belton

that Gant deemed “clear[ly]” unconstitutional; Belton, when

properly interpreted, would counsel all along that the searches

in Gant and Gonzalez were unconstitutional. Gant, 129 S. Ct.

at 1723.

More fundamentally, the fact remains that when the

Supreme Court in Johnson was faced with precisely the question that confronted our panel, it held that the exclusionary

rule applied to cases pending on direct appeal. Johnson

directly controls. Until such time as the Court were to overrule Johnson, it is Johnson and not Krull that we must follow.

UNITED STATES v. GONZALEZ 4329
II

The panel’s decision is directly supported by Gant itself. In

Gant, the Supreme Court interpreted Belton, 453 U.S. 454, to

allow a vehicle search incident to an arrest of the vehicle’s

occupant only where the “arrestee is within reaching distance

of the passenger compartment at the time of the search or it

is reasonable to believe the vehicle contains evidence of the

offense of arrest.” Gant, 129 S. Ct. at 1723. This holding

prompted a vigorous dissent:

The Belton rule has been taught to police officers for

more than a quarter century. Many searches—almost

certainly including more than a few that figure in

cases now on appeal—were conducted in scrupulous

reliance on that precedent. It is likely that, on the

very day when this opinion is announced, numerous

vehicle searches will be conducted in good faith by

police officers who were taught the Belton rule.

Id. at 1728 (Alito, J., dissenting). 

The majority, however, did 

not agree with the contention in Justice Alito’s dissent . . . that consideration of police reliance interests

requires a different result. Although it appears that

the State’s reading of Belton has been widely taught

in police academies and that law enforcement officers have relied on the rule in conducting vehicle

searches during the past 28 years, many of these

searches were not justified by the reasons underlying

the [search-incident-to-arrest] exception. . . . The

fact that the law enforcement community may view

the State’s version of the Belton rule as an entitlement does not establish the sort of reliance interest

that could outweigh the countervailing interest that

all individuals share in having their constitutional

4330 UNITED STATES v. GONZALEZ
rights protected. If it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly

outweighs any law enforcement “entitlement” to its

persistence.

Id. at 1722-23 (footnote omitted). The Gant majority ruled as

it did precisely because the “interest that all individuals share

in having their constitutional rights protected” outweighs

good-faith “police reliance interests.” In short, the Supreme

Court has already decided that in a case such as ours, “the

benefits” of the exclusionary rule “outweigh the costs.” Herring, 129 S. Ct. at 700.

It is no answer to say, as does Judge Bea, that the majority

and the dissent were arguing about stare decisis and not deterrence of “clear[ly] . . . unlawful” searches. Gant, 129 S. Ct.

at 1723. The majority expressly stated that it was not overruling Belton, see id. at 1722 n.9, and thus it also implicitly recognized that the doctrine of stare decisis had little, if any,

force in Gant. See id. at 1722 (“[W]e would be particularly

loath to uphold an unconstitutional result in a case that is so

easily distinguished from the decisions that arguably compel

it. . . . It is thus unsurprising that Members of this Court who

concurred in the judgments in Belton and Thornton also concur in the decision in this case.”). The flash point of disagreement between the majority and dissent in Gant was not so

much stare decisis as “police reliance interests.” See id. at

1722-23. Justice Alito’s concern about “the suppression of

evidence gathered in many searches carried out in good-faith

reliance on well-settled case law,” id. at 1726 (Alito, J., dissenting) (emphasis added), demonstrates that Gant was about

suppression of evidence and not just the constitutionality of

the search. 

That the majority and dissenting opinions should have

clashed over the exclusionary rule is not surprising, for in

Gant, the Arizona Supreme Court had not simply declared the

search unconstitutional, but had also ordered the exclusion of

UNITED STATES v. GONZALEZ 4331
the evidence. State v. Gant, 162 P.3d at 646. By affirming the

Arizona Supreme Court, the Court necessarily affirmed the

exclusion of the evidence.

III

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.

Judge BEA, with whom O’SCANNLAIN, KLEINFELD,

GOULD, TALLMAN, BYBEE, and CALLAHAN, Circuit

Judges, join, dissenting from denial of rehearing en banc: 

I dissent from our denial of the petition for rehearing en

banc, first, because the panel’s decision disregards the

Supreme Court’s decisions in Herring v. United States, ___

U.S. ___, 129 S. Ct. 695, 700 (2009), and Illinois v. Krull,

480 U.S. 340 (1987), regarding when police misconduct justifies suppression of relevant evidence in a criminal trial, and

second, because the panel’s decision creates a split among the

circuits. See United States v. McCane, 573 F.3d 1037 (10th

Cir. 2009), cert. denied, 78 U.S.L.W. 3221 (U.S. Mar. 1,

2010) (No. 09-402); United States v. Jackson, 825 F.2d 853

(5th Cir. 1987) (en banc).

I. Introduction

The panel has decided that evidence seized by a police officer acting in good faith reliance on the predominant interpretation of Supreme Court precedent should be suppressed,

despite the fact that suppression in this case cannot conceivably result in appreciable deterrence of future police misconduct. How does it deter police misconduct in the future to tell

the police: “the evidence you seized legally, under the law,

cannot be used because the law has changed, and now, what

4332 UNITED STATES v. GONZALEZ
wasn’t misconduct at the time you acted has become misconduct”? The attentive policeman hearing this might well look

blankly and ask: “Who knew? Am I supposed to guess? What

am I supposed to do next time? Not follow the law as written

by the Ninth Circuit, but hold back a little? How much?”

The panel’s decision is in direct conflict with the Supreme

Court’s recent holding in Herring v. United States: “[T]he

exclusionary rule is not an individual right and applies only

where it results in appreciable deterrence [of police misconduct].” 129 S. Ct. at 700 (quotation marks and alterations

omitted). Because the sole justification—up until now—for

exclusion of relevant evidence improperly seized has been to

deter future police misconduct,1 the Supreme Court has held

suppression is not an available remedy when police officers

conducted a search in good faith reliance on some higher

authority, such as a warrant or a statute, even if the warrant

or statute were later held invalid or unconstitutional (the

“good faith exception”). See Krull, 480 U.S. 340 (statutes),

United States v. Leon, 468 U.S. 897 (1984) (warrants). Here,

the police officer relied on a different kind of authority,

namely the settled case law under New York v. Belton, 453

U.S. 454, 460 (1981); see also United States v. Weaver, 433

F.3d 1104, 1106 (9th Cir. 2006) (our circuit’s adoption of

Belton).

Officer Garcia lawfully stopped a vehicle with four occupants. Defendant Gonzalez was riding as a passenger in the

vehicle. After the vehicle was apparently secure against any

risk to the officer, and the vehicle’s occupants had moved

away from the vehicle, Officer Garcia searched the vehicle

and discovered Gonzalez’s 9mm pistol in the glove compart1

Justice Ginsburg, in her dissent in Herring, offered alternative justifications for applying the exclusionary rule, but those justifications have not

been adopted by the Supreme Court. See 129 S. Ct. at 707-08 (Ginsburg,

J., dissenting). Since the panel did not rest its decision on any of Justice

Ginsburg’s thoughts, they need not here be discussed. 

UNITED STATES v. GONZALEZ 4333
ment. It is undisputed that, at the time of the search, Officer

Garcia was acting in the good faith belief that the law—the

predominant interpretation of Belton—allowed him to make

that search. 

Defendant Gonzalez moved at trial to suppress evidence of

the 9mm pistol that Officer Garcia seized during his search of

the vehicle. The district court denied the motion to suppress;

we affirmed. 

The Supreme Court then announced its decision in Arizona

v. Gant, 129 S. Ct. 1710 (2009), which held such searches

unconstitutional. The Court vacated our opinion in the instant

case and remanded it back to us with the instruction to consider the case in light of its ruling in Gant. Note that the Court

did not reach the same result in this case as it had in Gant,

where it upheld suppression of the evidence. It vacated and

remanded; it did not order the lower courts to suppress the

evidence of Gonzalez’s possession of the 9mm pistol.

On remand following the Supreme Court’s decision in

Gant, the panel correctly held that the search was unconstitutional but, I believe, incorrectly held that the good faith

exception did not apply, and therefore ordered the evidence

suppressed.

To reach its result in favor of suppression, the panel holds

that a police officer’s reliance on settled case law is somehow

different from a police officer’s reliance on a reasonable warrant (Leon) or statute (Krull). But, the panel does not explain

either in its opinion or its concurrence from the order denying

rehearing en banc, and I can fathom no possible reason, why

it found a difference between a rule applicable to a magistrate’s warrant, later found inadequate (Leon), or a statute

later found to be unconstitutional (Krull), and circuit court

case law, later found to no longer allow the search in question

(Gant). It is not misconduct for the police to rely on a reasonable warrant even if the warrant was later held invalid. Leon,

4334 UNITED STATES v. GONZALEZ
468 U.S. at 922. Nor was it misconduct for the police to rely

on a reasonable statute, even if the statute is later held unconstitutional. Krull, 480 U.S. at 361. We should encourage our

officers to act within the bounds of the law as defined by

magistrates and legislatures. United States v. Peltier, 422 U.S.

531, 542 (1975). Why then should we make police actions

futile when those actions are fully in accord with the settled

decisions of our courts when the actions are taken? I submit

we should not. 

The Supreme Court, moreover, has already said so:

“[U]nless we are to hold that parties may not reasonably rely

upon any legal pronouncement emanating from sources other

than this Court, we cannot regard as blameworthy those parties who conform their conduct to the prevailing statutory or

constitutional norm.” Peltier, 422 U.S. at 542. There is no dispute that, before the Supreme Court decided Gant, the

prevailing—even predominant—constitutional norm under

Belton—as applied in this Circuit by Weaver—was to permit

searches of vehicles, including glove compartments, even if

the defendant or suspect was not within arm’s reach of the

vehicle and the contents of the vehicle could not reasonably

present a risk to the arresting officer. There was nothing

blameworthy, and certainly nothing flagrant, about what Officer Garcia did. See Herring, 129 S. Ct. at 702 (holding that

the exclusionary rule arose from “flagrant and deliberate” violations of rights). I am at a loss to grasp how suppression of

the evidence Officer Garcia discovered while properly doing

his job, within the boundaries set by the law as it then existed,

will deter other police officers from violating other individuals’ Fourth Amendment rights.

Suppose that at the next opportunity to consider the matter,

the Court were to determine that automobile stops on objectively reasonable bases—e.g., expired license plate registration tags, burnt out rear lights, etc.—but actually motivated by

police officers’ desire to investigate the cars’ occupants and

interiors, were no longer constitutionally valid, thereby overUNITED STATES v. GONZALEZ 4335
ruling Whren v. United States, 517 U.S. 806 (1996). Routine

traffic stops and other searches permitted under Whren have

become a staple in law enforcement’s arsenal of crimefighting tools. Would all the many pending cases founded on

evidence retrieved in such searches be subject to reversal?

That is precisely the principle which is being adopted by the

panel’s decision.

The predictable effect of the panel’s decision will be to

undermine police officers’ ability to catch and prosecute criminals. First, the panel’s decision will deprive prosecutors of

inculpatory evidence supporting numerous prosecutions and

convictions of criminals whose cases were pending at the time

Gant was decided. As the Government contended in its petition for rehearing en banc: “[I]t is important to recognize that

Belton searches were a fixture in law enforcement prior to

Gant. The panel’s decision thus has the potential to disrupt

numerous convictions and ongoing prosecutions that rely on

evidence obtained in Belton searches conducted consistent

with the decisions of this Court.” Second, the panel’s opinion

will generate ongoing uncertainty among police officers about

their ability to follow the decisions of this court, or even the

Supreme Court, without finding that their work has been for

nought. This uncertainty will most likely cause police officers

to act overly cautious in pursuing criminals, thus endangering

public safety. But it may also have the perverse effect of so

frustrating police officers that they may simply ignore our

case law, in the hope it may have changed by time of trial and

appeal. This result would not only endanger public safety by

increasing the amount of evidence the courts will suppress,

but would also endanger the public’s Fourth Amendment

rights. 

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 in light of the circuit split we

have now created. The panel’s opinion reaches a conclusion

4336 UNITED STATES v. GONZALEZ
directly contrary to that of McCane, 573 F.3d 1037, which

held the good faith exception applies to searches held unconstitutional in Gant. The opinion is also in direct conflict with

Jackson, 825 F.2d 853, which held the good faith exception

applied to warrantless searches conducted near the border

when, at the time the searches took place, they were valid

under Fifth Circuit cases that were later overruled by that Circuit. 

For these reasons, I respectfully dissent from the denial of

rehearing en banc.

II. Factual and Procedural Background

Officer Garcia lawfully stopped a vehicle with four occupants. One of the passengers, Silviano Rivera, had several

outstanding warrants for his arrest. Garcia placed Rivera in

custody and the other passengers exited the vehicle. Officer

Garcia searched the vehicle and discovered a loaded 9mm pistol in the unlocked glove compartment. The two female occupants of the vehicle told Garcia the firearm belonged to the

fourth occupant, defendant Ricardo Gonzalez. Gonzalez was

arrested and charged with being a felon in possession of a

firearm. At trial, Gonzalez moved to suppress the evidence

discovered during the officer’s search. The district court

denied the motion. A jury found Gonzalez guilty of the firearm possession charge, and he was sentenced to 70 months’

imprisonment. 

Gonzalez appealed his conviction and sentence, contending

in part that the district court erred in denying his motion to

suppress. The panel affirmed, holding the search was lawful

under Belton, 453 U.S. at 460, and Weaver, 433 F.3d at 1106.

The Supreme Court then decided Arizona v. Gant, 129 S.

Ct. 1710 (2009), which expressly narrowed the predominant

interpretation of Belton by circuit courts, holding a search of

a vehicle incident to arrest may include the passenger comUNITED STATES v. GONZALEZ 4337
partment only if the “arrestee is unsecured or within reaching

distance of the passenger compartment at the time of the

search,” id. at 1719, or “when it is reasonable to believe that

evidence of the offense of arrest might be found in the vehicle,” id. at 1714. The Supreme Court vacated the panel’s decision in light of Gant. Quintana v. United States, 129 S. Ct.

2156 (2009). The Court did not reverse with instructions to

enter a judgment of acquittal for Gonzalez nor did it order the

lower courts to effect a suppression of the evidence.

On remand, the government conceded the search was

unconstitutional under Gant. United States v. Gonzalez, 578

F.3d 1130, 1132 (9th Cir. 2009). The government contended,

however, that this Circuit should affirm the district court’s

order denying Gonzalez’s motion to suppress because the

officer conducting the search did so in good faith reliance on

then-prevailing Supreme Court and Ninth Circuit precedent.

There is no dispute that the officer was acting in good faith

at the time of the search.

III. The Fourth Amendment, the Exclusionary Rule, and

the Good Faith Exception.

Although it is undisputed here that the search turned out to

be unconstitutional under Gant, finding the search unconstitutional does not automatically invoke the exclusionary rule as

to the evidence unearthed by the search. As in Herring, the

finding of unconstitutionality is only the first step in a two

step analysis.

The second step is to decide whether such evidence should

be suppressed. Leon, 468 U.S. at 906 (“Whether the exclusionary sanction is appropriately imposed in a particular case,

our decisions make clear, 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.”

(quotation marks omitted)); see also Herring, 129 S. Ct. at

700 (“We have repeatedly rejected the argument that exclu4338 UNITED STATES v. GONZALEZ
sion is a necessary consequence of a Fourth Amendment violation.”). 

“When evidence is obtained in violation of the Fourth

Amendment, the judicially developed exclusionary rule usually precludes its use in a criminal proceeding against the victim of the illegal search and seizure.” Krull, 480 U.S. at 347.

But, the remedy of exclusion “has been restricted to those situations in which its remedial purpose is effectively

advanced.” Id. In Herring, the Supreme Court made clear that

for courts to suppress evidence “the benefits of deterrence

must outweigh the costs.” 129 S. Ct. at 700.

Suppressing evidence of Gonzalez’s firearm here would not

result in any appreciable deterrence of police misconduct. As

the Supreme Court explained in Peltier, there is nothing

wrong with police officers acting under the authority of settled case law, including case law from courts other than the

Supreme Court. 422 U.S. at 542. If that law turns out to be

wrong, then it was the court that was at fault, not the police

officers. See id. Therefore, there is no benefit to suppressing

the evidence in this case. The cost of suppression, moreover,

is obvious; Gonzalez—a criminal convicted of being a felon

in possession of a firearm—goes free. On balance, there is

zero benefit and an obvious cost to suppressing the evidence.

The evidence should not be suppressed.

Although this cost-benefit calculation is an inherent component of the exclusionary rule, the Supreme Court has

explained that when police officers act in good faith when

conducting a search, their objectively reasonable belief is sufficient to show the balance tilts away from suppression. See

Herring, 129 S. Ct. at 701 (“We (perhaps confusingly) called

this objectively reasonable reliance ‘good faith.’ ”). Cases

articulating this “good faith exception” fall into two categories. The first category includes cases where there was some

error in the issuance of a warrant used to execute the search.

See Herring, 129 S. Ct. at 695 (holding that evidence should

UNITED STATES v. GONZALEZ 4339
not be suppressed where a county warrant clerk mistakenly

told officers there was an outstanding warrant on file for

defendant, but later discovered her error: the warrant had been

recalled before its use by the officers); Arizona v. Evans, 514

U.S. 1, 15 (1995) (holding that evidence should not be suppressed where officers relied on a computer database which

showed the defendant had an outstanding arrest warrant, but

later learned a court clerk failed to update the database to

show the defendant’s warrant had been quashed); United

States v. Leon, 468 U.S. 897, 919-20 (1984) (holding that evidence should not be suppressed where officers arrested and

searched defendant pursuant to a facially lawful warrant, but

a district judge later held the warrant lacked probable cause).

These cases are instructive because the Supreme Court has

repeatedly emphasized that the sole purpose of the exclusionary rule is to deter future unlawful police searches. 

It is, however, the second category of cases that is more relevant here; this category includes cases where law enforcement officers conduct a search under a statute that was later

determined unconstitutional. See Krull, 480 U.S. 340; Michigan v. DeFillippo, 443 U.S. 31, 38 (1979). 

In Krull, the State of Illinois appealed the trial court’s order

suppressing evidence discovered during an administrative

(i.e., warrantless) search pursuant to Illinois’s statutory

regime which regulated the sale of automobiles and automobile parts. A police officer conducted an administrative search

of the records of an automobile wrecking yard and discovered

three stolen vehicles on the property. The following day, a

federal district court held the Illinois statute authorizing such

administrative searches was unconstitutional. The state trial

court agreed and ordered the evidence suppressed. The Illinois Supreme Court affirmed, and the State appealed to the

U.S. Supreme Court. 

The Supreme Court reversed, holding the good faith exception applied to searches conducted pursuant to a statute that

4340 UNITED STATES v. GONZALEZ
was not “obvious[ly]” unconstitutional. 480 U.S. at 359. The

Court held: “evidence should be suppressed only if it can be

said that the law enforcement officer had knowledge, or may

properly be charged with knowledge, that the search was

unconstitutional under the Fourth Amendment.” Id. at 359-60

(quotations omitted). “The application of the exclusionary

rule to suppress evidence obtained by an officer acting in

objectively reasonable reliance on a statute would have as little deterrent effect on the officer’s actions as would the exclusion of evidence when an officer acts in objectively

reasonable reliance on a warrant.” Id. at 349. 

As the Court could discern no deterrent effect that suppression would have on officers, it turned to the question whether

suppression would deter legislators from enacting statutes that

ignored or subverted the Fourth Amendment. See id. at 351.

The Court held there was no evidence that suppression would

“act as a significant, additional deterrent.” Id. at 352. Hence,

the “substantial social cost” of excluding inculpatory evidence

against defendants—letting the guilty go free—outweighed

any incremental deterrent effect, which convinced the Court

that applying the exclusionary rule was unjustified. Id. at 352-

53; see also DeFillippo, 443 U.S. at 38 (“Police are charged

to enforce laws until and unless they are declared unconstitutional . . . . Society would be ill-served if its police officers

took it upon themselves to determine which laws are and

which are not constitutionally entitled to enforcement.”).2

In McCane, 573 F.3d 1037 (10th Cir. 2009), the Tenth Circuit addressed the precise situation presented in Gonzalez; and

it held the good faith exception did apply. 573 F.3d at 1045.

A police officer stopped McCane on suspicion of driving on

a suspended license. The officer arrested McCane, handcuffed

2Although decided before Leon and not using the good faith exception

language, DeFillippo denied suppression of evidence where the search

was executed under a local ordinance that was later found to be unconstitutional. 443 U.S. at 40. 

UNITED STATES v. GONZALEZ 4341
him, and placed him in the back of the patrol car. The officer

then searched McCane’s vehicle and discovered a firearm in

the pocket of the driver’s side door. McCane moved to suppress the evidence of the firearm. The district court held the

search was valid. While McCane’s appeal was pending, the

Supreme Court decided Gant. The Tenth Circuit held the

search was unconstitutional, but affirmed based on the good

faith exception to the exclusionary rule. 

First, the Tenth Circuit held that its precedent was wellsettled that vehicle searches incident to arrest were lawful

under Belton, even if the arrestee was secured and offered no

danger to the arresting officer at the time of the search. The

court then held the good faith exception applied because suppressing evidence discovered during a search that was constitutional under settled law, as it existed at the time of the

search, would not deter law enforcement officers from conducting unconstitutional searches. The exclusionary rule is

meant to “deter objectively unreasonable police conduct” and

“to deter misconduct by law enforcement officers, not other

entities.” McCane, 573 F.3d at 1044. Because “no deterrent

effect would result from suppressing the evidence seized from

McCane’s vehicle, the Tenth Circuit declined “to apply the

exclusionary rule when law enforcement officers act in objectively reasonable reliance upon the settled case law of a

United States Court of Appeals.” Id. at 1045. 

In Jackson, the defendants were all searched at a highway

checkpoint that prior Fifth Circuit cases had deemed a functional equivalent of the border, thus excepting police searches

from the warrant requirement. Id. at 854-55. In an en banc

decision, the Fifth Circuit disapproved its earlier cases and

held the checkpoint was, indeed, not a border equivalent.

Warrantless and no-probable-cause searches could not there

be performed. Id. at 854. Nevertheless, the court affirmed the

defendants’ convictions, based on the evidence seized during

warrantless searches, because the “searches were conducted in

good faith reliance upon [the Fifth Circuit’s] earlier deci4342 UNITED STATES v. GONZALEZ
sions.” Id. The court held “[t]he reasoning of Leon fully

applies to the case at hand.” Id. at 866. The court noted that

it had upheld searches at the checkpoint numerous times—

i.e., the law was well-settled—and that there was no suggestion the Fifth Circuit was “inclined to ignore or subvert the

Fourth Amendment.” Id. (quoting Leon, 468 U.S. at 916).3

Despite these cases, the panel held the good faith exception

did not apply because Krull was limited to searches conducted

under statutory authority and did not extend to searches conducted under well-settled case law precedent. Of course, Krull

dealt only with a statute-based search. The Court said nothing

about a search based on settled case law, nor that its holding

could not be extended to the latter. The panel provides a curious reason for its disregard of Krull; it chooses to follow a

pre-Leon case before the “good faith exception” was developed, Johnson, rather than a post-Leon “good faith exception”

case. But the panel gives no reason why we should treat our

decisions as lesser law under the good faith exception than

statutes or administrative regulations.

To clear away any confusion, the existence of a relevant

court case supporting an officer’s search does not automatically prove he was acting in good faith where that case is later

overruled. A police officer must still prove that his reliance

was objectively reasonable. That problem, however, is no different from the problem law enforcement officers face when

deciding if a statute is obviously unconstitutional. See Krull,

480 U.S. at 355 (“Nor can a law enforcement officer be said

to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known

that the statute was unconstitutional.”). And the same problem

recurs when law enforcement officers decide whether a “warrant was so facially deficient that the executing officers cannot reasonably presume it to be valid.” Id. (quotation marks

3

I do not think this circuit is any more inclined to subvert the Fourth

Amendment than is the Fifth Circuit. 

UNITED STATES v. GONZALEZ 4343
omitted). In this case, an objectively reasonable officer would

have no basis for suspecting the Ninth Circuit’s well-settled

interpretation of Belton was obviously unconstitutional. See

Weaver, 433 F.3d at 1106. 

IV. Retroactivity Cases Do Not Apply Because Here the

Rule to Be Applied Retroactively (Gant) Does Not

Eliminate the Good Faith Exception (Leon, Krull)

Because the panel held that Krull, and the other cases

applying the good faith exception, did not control, the panel

instead relied on United States v. Johnson, 457 U.S. 537, 562

(1982), which held that “a decision of the Court construing

the Fourth Amendment is to be applied retroactively to all

convictions that were not yet final at the time the decision was

rendered.” See also Griffith v. Kentucky, 479 U.S. 314 (1987).4

To do otherwise would “violate the principle of treating similarly situated defendants the same.” Gonzalez, 578 F.3d at

1132 (quoting Johnson, 457 U.S. at 555). Guided by that principle, the panel held the firearm must be suppressed in Gonzalez because the cocaine was suppressed in Gant. In reaching

this conclusion, however, the panel ignores that Gant and

Gonzalez were not similarly situated in a crucial determinant:

The government did not raise the good faith exception in

Gant’s case, but it did in this case. 

Therefore, it is simple to reconcile Johnson with Krull.

Johnson holds that defendants, whose cases are pending at the

time of a law-changing decision, should be entitled to invoke

4

In Griffith, the Court held that Batson v. Kentucky, 476 U.S. 79 (1986)

(holding a criminal defendant could establish a prima facie case of racial

discrimination based on the prosecution’s use of peremptory challenges to

strike members of the defendant’s race), applied retroactively to cases

pending when Batson was decided. The Court reemphasized that “selective application of new rules violates the principle of treating similarly situated defendants the same.” Id. at 323. Griffith held that even cases that

were a “clear break” from prior law were retroactive to pending cases. Id.

at 326-27. 

4344 UNITED STATES v. GONZALEZ
the new rule. Id. at 545. Gonzalez has invoked the new rule

announced in Gant and that rule does apply to his case; the

search of Gonzalez’s car, like the search of Gant’s car, was

unconstitutional. But, once Gonzalez has invoked the rule in

Gant, the Government is still entitled to invoke the good faith

exception, and it has done so here. Nothing in Gant eliminates

or narrows the good faith exception to the exclusionary rule

for the simple reason that the issue whether the good faith

exception applied was not raised nor reached in Gant. 

Nothing in Gant suggests suppression is the necessary

result of invoking the new rule. There is no suggestion the

Arizona state prosecutors ever raised the good faith exception

before the U.S. or the Arizona Supreme Court. See Gant, 129

S. Ct. at 1723-24. The Arizona Supreme Court held: “The

State has advanced no alternative theories justifying the warrantless search of Gant’s car, and we note that no other exception to the warrant requirement appears to apply.” State v.

Gant, 162 P.3d 640, 646 (Ariz. 2007). The Arizona Supreme

Court then discussed the automobile exception, the plain view

exception, and the inventory search exception. Id. There is no

mention of the good faith exception in the Arizona Supreme

Court opinion. Nor is there any mention of the good faith

exception in the majority opinion in Gant.

5

Unfortunately, the panel’s concurrence to the order denying

rehearing en banc takes the Supreme Court’s analysis of “police reliance interests” in Gant completely out of context.

First, reading Gant, it is not obvious that “police reliance

interests” have anything to do with police officers’ good faith

reliance on settled law. The Supreme Court did not define

“police reliance interests,” but, in context, those interests

5

Justice Alito, in his dissent, makes a passing reference to evidence

seized in good faith reliance on well-settled case law; he cautions Gant

will result in the suppression of such evidence, 129 S. Ct. at 1726, but he

does not explain why. Nor did the majority in Gant acknowledge that

argument. 

UNITED STATES v. GONZALEZ 4345
appear to have more to do with the cost of retraining officers

than anything related to the good faith exception. See Gant,

129 S. Ct. at 1722-23. Second, Gant decided only that such

interests were insufficient to justify perpetuating the rule that

permitted unconstitutional searches in the future. Gant did not

balance the deterrent effect against the potential for overturned criminal convictions if evidence from prior searches is

suppressed. Id.

Moreover, Johnson is consistent with applying the good

faith exception in this case. The Court in Johnson argued that

suppressing evidence seized in a search conducted under “unsettled” law might have a deterrent effect on police, even

though suppressing evidence seized in a search conducted

under “settled” law would not. 457 U.S. at 560-61. Johnson,

far from supporting the panel’s opinion, actually provides an

example where the Supreme Court held that the police officer’s reliance on case law was not objectively reasonable.

Johnson is consistent with the application of the good faith

exception announced two years later in Leon. In Johnson, the

issue was searches incident to warrantless home arrests. The

Court held that area of law was “unsettled” and that “[l]ong

before Payton [v. New York, 445 U.S. 573 (1980)], for example, this Court had questioned the constitutionality of warrantless home arrests. Furthermore, the Court’s opinions

consistently had emphasized that, in light of the constitutional

protection traditionally accorded to the privacy of the home,

police officers should resolve any doubts regarding the validity of a home arrest in favor of obtaining a warrant.” Id. at

560-61. 

Therefore, the panel’s concurrence to the order denying

rehearing en banc errs in likening Gant to Payton; the panel’s

concurrence overlooks that law may be settled by courts other

than the Supreme Court. Peltier, 422 U.S. at 542. Here, there

is no question that the law governing the constitutionality of

Belton searches was settled, at the very least within our circuit. See Weaver, 433 F.3d at 1106. As the panel’s own opin4346 UNITED STATES v. GONZALEZ
ion states, the scenario in this case is “a search conducted

under a then-prevailing interpretation of a Supreme Court ruling.” Gonzalez, 578 F.3d at 1132 (emphasis added); see also

Gant, 129 S. Ct. at 1718 (finding the broad interpretation of

Belton “has predominated”).

It is clear the Johnson Court adopted the reasoning of Peltier, approving of the underlying rationale behind the good

faith exception, when it held: “Peltier suggested only that

retroactive application of a Fourth Amendment ruling that

worked a ‘sharp break’ in the law, like Almeida-Sanchez,

would have little deterrent effect, because law enforcement

officers would rarely be deterred from engaging in a practice

they never expected to be invalidated.” Id. at 560.

It is in the retroactivity context that Griffith has apparently

confused the panel. Griffith held that the Supreme Court’s

decisions were retroactive as to pending appeals regardless

whether the decision worked a “sharp break” in the law. 479

U.S. at 327. But Griffith was about Batson challenges and

therefore about defendants’ Fourteenth Amendment rights—a

right held by the individual defendant. Id. at 316. A prosecutor’s violation of a defendant’s Fourteenth Amendment rights

does not raise the issue of deterrence that is inherent to the

judicially created exclusionary rule. Nor does it raise the balancing test issues central to the Court’s decision in Herring,

129 S. Ct. at 700. A defendant has a right to a jury chosen

without racial motivation regardless whether a reversal of a

conviction will teach prosecutors a lesson and deter similar

racially motivated conduct in the future. Here, the panel confuses the retroactive application of a Supreme Court decision

in the area of individual rights (a jury picked without racial

motivation) with what is an area of societal rights (suppression of evidence to discipline police). Gant should have been

retroactively applied to Gonzalez’s case. And it was. Officer

Garcia’s search was held unconstitutional. But the remedy of

suppression of the evidence so seized is not compelled by

UNITED STATES v. GONZALEZ 4347
Gant. That remedy is governed by Leon, Krull, and Herring.

Those cases point firmly toward denying suppression.

If there is any support for the panel’s opinion it can be

found only in Justice O’Connor’s dissent in Krull. She wrote:

“I find the Court’s ruling in this case at right angles, if not

directly at odds, with the Court’s recent decision in Griffith.”

480 U.S. at 368. With all respect to Justice O’Connor, her

position did not carry the majority vote. Her dissent does,

however, cleanly frame the issue the panel decides today:

Does the good faith exception to the exclusionary rule apply

despite the Supreme Court’s retroactivity precedents? The

majority of the Supreme Court held that it does in Leon,

Krull, and Herring. The panel attempts to elide the issue by

asserting case law and statutes are distinct, but that is not only

a distinction without a difference in our system of branches of

government with equal rank between the legislatures and judiciary, but is an assertion rejected in Peltier, a case by which

we are bound. What the panel actually does is follow Justice

O’Connor’s dissent rather than following Supreme Court law.

V. Conclusion

Under our Fourth Amendment jurisprudence, courts keep

vigil over police officers’ power to search and seize. The

panel treads over the line between vigilance and punishment.

Not only does the panel negate the dutiful—at the time done

—investigatory work of Officer Garcia and all similarly situated officers, but it hamstrings all police officers, who must

now worry that every search they conduct under permissible

circumstances—remember Whren—may later be rendered

worthless by a change in the law as found by a later court, no

matter how foreseeable or not. We should not put the police

in the business of foreseeing how courts will change their

views of the Fourth Amendment. We should expect them to

follow the law, and when doing so, to be able to use the evidence so procured.

4348 UNITED STATES v. GONZALEZ