Lower Court Interpretations of Davis v. United States, 131 S.Ct. 2419 (2011).

In Davis v. United States, 131 S. Ct. 2419 (2011), the Supreme Court considered what remedies are available when appellate courts hand down Fourth Amendment rulings expanding Fourth Amendment rights beyond the state of prior caselaw. When that happens, the officer may have taken steps that were thought to be lawful at the time but later held to be unlawful. According to Davis, the exclusionary rule does not apply to Fourth Amendment violations when the officer had acted “in objectively reasonable reliance on binding appellate precedent” that had allowed the officer’s acts.

Davis has become a very important case: It has been cited several hundred times among lower courts in just two years. In this post, I want to bring readers up to date on what the lower courts are doing with Davis. Its test is surprisingly murky in application, and lower courts have struggled to apply various parts of it and disagreed on its scope. I’ll start with an overview of Davis and the uncertainties of its rule, and I’ll then turn to the lower court cases. Given the large body of caselaw, I’ll stick to the major precedents as best I can identify them; readers are invited to add in additional caselaw in the comment thread.

I. Davis v. United States

In Davis, an officer had searched a car incident to arrest pursuant to the near-universal understanding that such searches were permitted by Belton v. New York. By the time the case was on direct appeal, the Supreme Court effectively overturned Belton in Arizona v. Gant. Under the near-universal understanding of Belton, the search had been lawful; under Gant, the search was unlawful. The question in Davis was what to do with the intervening change in law. Under the retroactivity rule of Griffith v. Kentucky, the new decision in Arizona v. Gant was fully retroactive to Davis’s case: Davis’s trial counsel had anticipated Gant and preserved the issue, so on direct appeal Gant provided the governing law. The question was whether the change in law meant that the exclusionary rule was still available.

The Supreme Court held in Davis that the exclusionary rule was not available because the officer had acted “in objectively reasonable reliance on binding appellate precedent.” Granted, as a matter of retroactivity law, Gant provided the governing law. But that only meant that Davis was permitted to “raise[] the question” of whether he could get relief; upon Davis raising that question, the Court’s answer was “no.” The officer was not culpable because he had merely followed the law in place at the time of the search. And given that the officer was not culpable, suppression could not deter any misconduct and it was improper to suppress evidence. The court left open the possibility that it would carve out a future exception to its exception if it was necessary to ensure an incentive to challenge erroneous caselaw. But for now, at least, the rule is that a defendant cannot get the benefit of the exclusionary rule if the officer reasonably relied on binding caselaw when the search occurred. (Full disclosure: As regular readers know, I think the Court was wrong for reasons I explained here, and I briefed and argued the case for Davis.).

II. The Ambiguities of the Davis Test

On its face, the Davis test — “objectively reasonable reliance on binding appellate precedent” — may seem seem reasonably clear. But when you look at it more closely, several ambiguities emerge:

First, what is “reliance” on precedent? Does that mean that the officer actually knew of the precedent and subjectively relied on it, or just that the precedent was on the books? Fourth Amendment law traditionally focuses on objective concerns, but the reasoning of Davis is based on an officer’s personal culpability; does that mean that the officer’s subjective understanding of the law is now relevant?

The second and most important ambiguity is what makes reliance “objectively reasonable.” How far within or near the reasoning of the case does the reliance need to be? Most precedents have core reasoning that obviously apply to their exact facts. As the facts of new cases diverge from that precedent, however, the reasonableness of reliance can weaken. What if the facts of the new case are different from the old case, creating fair arguments that a different result might obtain? What if a precedent merely hints that the officer’s search in the subsequent case would be permitted, or leaves a bunch of clues, without definitively resolving the question? Is an officer who relies on those cases acting in “objectively reasonable” reliance?

Third, what makes appellate precedent “binding”? In a world of concurrent federal and state criminal jurisdiction, if a state officer executes a search and there is precedent in one system (say, state court) allowing the search but no precedent allowing it in the other (say, federal court), is the precedent allowing the search “binding” on the officer? Or does it depend on whether the case is charged in state or federal court?

Putting the murkiness of the Davis test aside, Davis also prompts the fourth question of whether to extend its holding beyond “binding appellate precedent.” Reliance on binding appellate precedent presumably is always objectively reasonable. Given that, does Davis also apply to objectively reasonable reliance on appellate precedent even if there is no claim to binding precedent? Consider how Davis applies to an emerging area of law, such as searching cell phones incident to arrest or GPS tracking, in which relatively few courts have ruled. Does the exclusionary rule apply if there is no binding caselaw authorizing the search but the weight of caselaw at the time of the search seemed to allow it? Is the ultimate end-point to equate the scope of the exclusionary rule with qualified immunity, such that the exclusionary rule only applies in the rare case in which the officer violated clearly established law? Davis prompts all of these questions but does not answer them.

III. Lower Court Interpretations of Davis

State and lower federal courts have cited Davis several hundred times in the last two years, so there is a lot of caselaw on the issue. I haven’t read all of the cases, but I looked through the published federal circuit and state supreme court cases and skimmed a bunch more from federal district courts and lower state courts. Based on my quick look at the major cases, here’s the current state of the law.

(1) First, in interpreting whether an officer “reasonably relied” precedent, courts so far have concluded that the test is purely objective. That is, the real issue is consistency with caselaw, not actual subjective reliance on caselaw. See, e.g,, United States v. Sparks, 711 F.3d 58, 66 n.5 (1st. Cir. 2013); United States v. Madden, 682 F.3d 920, 927-28 (10th Cir. 2012).

(2) Courts have struggled to identify how close a precedent must be to the facts of the current investigation for an officer to reasonably rely on that precedent. For the most part courts have applied the objectively reasonable reliance test by giving a close read to the earlier cases and asking whether there is a sufficient sign from the cases that the facts of the current investigation would be different. The courts have used different language in each case, and a lot of the language is pretty murky. But for the most part, courts seem to be making an inquiry into whether the officer somehow should have known that the old rule wouldn’t extend to the new facts. See, e.g., Sparks, 711 F.3d 58 (officer relied reasonably on radio beeper cases from 1970s and 1980s to install a GPS device because “nothing inheres in the technology to take it out of” those cases, and those cases “gave scant reason to think that the duration of the tracking in that case was material to the Court’s reasoning.”); United States. v. Debruhl, 38 A.3d 293 (D.C. 2012) (good faith exception applied when prior decision adopting a bright line rule “made clear (without expressly stating) that the bright-line rule allowed for no limiting material facts beyond those identified in the plain language of [precedent's] holding” and therefore “implicitly” made new facts “immaterial” — and rejecting earlier understanding that required the precedent to leave “no gap” in the facts to have exception apply); Briscoe v. State, 422 Md. 384, 30 A.3d 870 (Md. 2011) (applying reasonable reliance test by looking to whether distinguishing new case “would be unfaithful to [the precedent's] very design and purpose”); United States v. Andres, 703 F.3d 828 (5th Cir. 2013) (“Despite any possible technological differences between a 1981 ‘beeper’ and the GPS device used in this case, the functionality is sufficiently similar that the agents’ reliance on Michael to install a GPS device on the truck, in light of the reasonable suspicion of drug trafficking, was objectively reasonable.”); United States v. Thomas, — F.3d —-, 2013 WL 4017239 (9th Cir. 2013) (reliance on caselaw was objectively reasonable despite different facts because the prior cases did not “as much as hint[]” that the new facts would make a difference).

(3) Courts have not dwelled much on the issue of what makes a precedent “binding.” For the most part, federal circuit cases have looked to federal circuit caselaw, regardless of whether the officer was a state or federal officer. On the other hand, the state cases I studied have mostly looked to both federal and state cases. See, e.g., Smallwood v. State, 113 So.3d 724 (Fla. 2013) (looking to Supreme Court caselaw and then noting that there was no federal circuit caselaw before deciding that there was no binding caselaw); United States. v. Debruhl, 38 A.3d 293 (D.C. 2012) (looking at caselaw by that court and noting that there was no relevant federal circuit caselaw).

(4) On the issue of whether Davis extends beyond “binding” appellate caselaw, there is only sparse precedent from federal circuits and state supreme courts on this so far. The cases I have seen either hold or strongly suggest that Davis is limited to reliance on “binding” law. See United States v. Martin, 712 F.3d 1080 (7th Cir. 2013) (stating that “[w]e reject the government’s invitation to allow police officers to rely on a diffuse notion of the weight of authority around the country, especially where that amorphous opinion turns out to be incorrect in the Supreme Court’s eyes. Here, as Martin points out in his supplemental brief, there was no binding appellate precedent in the Eighth Circuit at the time that Iowa law enforcement officials attached the GPS device to Martin’s car” — but not “definitively” resolving the question); Briscoe v. State, 422 Md. 384, 30 A.3d 870, 883 (2011) ( “We understand the Davis Court’s reference to binding appellate precedent to mean that the caselaw of the jurisdiction must have been clear about whether that jurisdiction had adopted the bright-line rule of Belton.”).

On the other hand, there is a lot of disagreement among federal district courts and lower state appellate courts on this question. As one district court summarized:

[In districts with no binding appellate caselaw,] district courts are sharply divided [about whether Davis applies]. Some courts read Davis narrowly and hold that the good faith exception is inapplicable in the absence of binding appellate precedent. These courts generally argue that Davis‘ “binding appellate precedent” language creates a strict limitation on the good faith exception. See, e.g., Katzin, 2012 WL 1646894 at * *7–10; Lee, 862 F.Supp.2d at 567–71; Lujan, 2012 WL 2861546 at * *2–3; Robinson, 2012 WL 4893643 at * * 12–15; United States v. Ortiz, No. 11–251–08., 2012 WL 2951391, at * *19–25 (E.D.Pa. July 20, 2012).

Other courts interpret Davis to mandate a case-by-case inquiry in which the relevant inquiry is whether police act with an objectively reasonable good faith belief that their conduct is lawful [even if there was no binding appellate precedent]. See, e.g., Oladosu, 2012 WL 3642851 at * *5–10; United States v. Baez, No. 10–10275–DPW., 2012 WL 2914318, at * *5–8 (D.Mass. July 16, 2012); Leon, 856 F.Supp.2d at 1191–95; Rose, 2012 WL 4215868 at * *3–6; Lopez, 2012 WL 3930317 at * *8–11. Cf. United States v. Hardrick, No. 10–202.,2012 WL 4883666, at * *5–6 (E.D.La. Oct. 15, 2012).

United States v. Guyton, 2013 WL 55837 (E.D. La. 2013). Further, other courts have suggested that Davis applies unless there is caselaw affirmatively prohibiting the conduct. See, e.g., United States v. Lopez, 895 F.Supp.2d 592 (D.Del. 2012) (holding that Davis applies because the officers “acted in reasonable reliance on the absence of federal or state case law establishing that GPS monitoring of a vehicle in public is a Fourth Amendment search”).

A lot of these district court cases are presently headed on their way up the circuit courts, so stay tuned for what the courts might do. I wouldn’t be at all surprised if the district court disagreement on whether Davis applies absent binding appellate precedent leads to a circuit split and future Supreme Court review.