The Supreme Court (Washington, not Raleigh) has been exceptionally busy with criminal law matters over the last few months. As readers of this blog know, two of the blockbuster decisions this Term have been Arizona v. Gant, which severely restricted vehicle searches incident to arrest, and Herring v. United States, which held that the exclusionary rule should not apply to evidence obtained as the result of an arrest that was made by an officer with a good faith but mistaken belief that the defendant was the subject of an outstanding arrest warrant. A number of folks -- including me, in this blog post, and my colleague Bob Farb, in his paper on Gant -- have asked whether the Herring "good faith" exception to the exclusionary rule can be applied to "save" pre-Gant vehicle searches incident to arrest that were conducted in good faith reliance on what appeared to be settled law allowing such searches. A federal district court has just addressed that issue. I think it's the first opinion on point, and the judge answered in the negative. In United States v. Buford, __ F.3d __, 2009 WL 1635780 (M.D. Tenn. June 11, 2009), the defendant was driving when an officer ran his tag, learned he was the subject of an outstanding arrest warrant, and stopped him. After arresting the defendant, the officer searched the passenger compartment of his vehicle and found a handgun. The defendnt was charged federally with illegal possession of the gun. After Gant came down, the defendant [...]
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