Third Circuit Votes to Rehear Katzin En Banc on the Scope of the Davis Good Faith Exception [UPDATE: Second Circuit Weighs In, Too]

I’ve blogged before about United States v. Katzin, the Third Circuit decision imposing a warrant requirement for installing a GPS device on a car and limiting the scope of the Davis good faith exception. In my earlier post, I explained why the Third Circuit’s good faith analysis was not likely to be the last word on the issue:

I’m no fan of the Davis good-faith exception — as regular readers know, I think it was wrongly decided — so on one hand, I appreciate the fact that the court construed the case narrowly. Limiting the case to “binding” appellate precedent seems correct, as the Supreme Court clearly relied on that limitation to justify its holding. With that said, as much as I oppose the introduction of a free-floating culpability requirement on the exclusionary rule, if courts are to recognize such a requirement, it probably should mean something: The court here seems to add the requirement (which it didn’t have to do) but then construes to mean almost nothing. The police here didn’t apply a “self-derived” rule, as the court says; they applied the rule that was reflected in the caselaw and found in the treatises. If there’s a culpability requirement to be applied, then it seems like a relatively tough fit with the facts here. Anyway, much of good-faith exception material is likely to lead to relatively deep splits in the next two to three years, so all of this is probably just percolation that will end up leading to future Supreme Court decisions.

On December 4th, DOJ petitioned the Third Circuit to rehear en banc just the good-faith exception part of the decision, and earlier today the Third Circuit granted the petition and scheduled the case for an en banc argument in May. As I understand the en banc order, the en banc court won’t revisit the underlying Fourth Amendment issue: The only issue now is whether the exclusionary rule applies.

I hope the Third Circuit will take a clear position on the three issues addressed by the panel opinion: 1) Is Davis limited to good-faith reliance on binding appellate precedent, or does it apply more broadly in the absence of clear caselaw one way or the other, 2) How clearly does a precedent need to speak to the facts of the current case for it to be considered under the Davis rule, and 3) Is there a case-by-case culpability requirement for exclusion beyond the rule of Davis, and, if so, what is the precise nature of the culpability requirement? All of these issues are reasonably likely to be headed to the Supreme Court eventually, and it would be helpful to get clear answers from the en banc Third Circuit on all three issues.

For my long post reviewing lower court interpretations of Davis as of August 2013, see here. And while I’m at it, for my explanation of why Davis is wrong — and after Davis, why it should be construed narrowly — see here and here.

UPDATE: The Second Circuit has just weighed in on the same set of issues in a new decision today, United States v. Aguiar. Thanks to both Doug Berman and Mark Eckenwiler for the tip.