I'm trying to figure out the incentive effects here.
Obviously, with an increasingly conservative Court, the exclusionary rule has been cut back during the past couple of decades. Not overruled, not (entirely) gutted, but definitely cut back. We don't like to exclude evidence, so we come up with a zillion different exceptions.
The one that the Court of Appeal applies today is the "good faith precedent" exception. Basically, if the police officer did something wrong -- here, entered a house without a warrant -- but the wrong was okay under then-existing precedent, we're cool with it. No exclusion. Even if, as here, the officer didn't rely upon, or even know about, that precedent. It's an objective inquiry.
The theory is that the officer didn't do anything "wrong" in such a setting -- apart from violating the Fourth Amendment. More accurately, she didn't do anything "wrong" that we feel like deterring. Since precedent at the time allowed the search, we don't feel like excluding the resulting evidence even if the Supreme Court ultimately holds that, yep, actually, searches like that are illegal and unreasonable.
But here's my question: if that's the rule, doesn't that negate any rational incentive to change the law; e.g., to argue that an existing policy violates the Constitution?
Today's opinion is a perfect example. Defendant drives past the police -- allegedly under the influence -- as he's literally four seconds away from his home; noise blaring, honking his horn, etc. The officer turns on her lights and follows him, but, again, he's 100 feet from his home anyway, so rather than pulling right over, he pulls into his garage, and the officer follows him into the residence and starts questioning him. He says that violates the Fourth Amendment since it's a warrantless intrusion.
The trial court disagrees. It's a misdemeanor offense, so it goes to the Appellate Division, and then the Court of Appeal, which holds -- in an unpublished opinion -- that it's categorically okay for police to follow people into their homes when they're "fleeing', even for minor misdemeanors. The California Supreme Court doesn't feel that issue's sufficiently important to grant review.
But the United States Supreme Court does. It accepts the case, and rules that, nope, there's no categorical rule that allows warrantless entries into a home for "fleeing" suspects; rather, it's a case-by-case inquiry. There's a lot of fight between the various justices on what things we should take into account on a case-by-case approach, but that's all left for another day; for now, the Court of Appeal was wrong to apply a categorical rule, so the case gets remanded back for consideration under the Court's new case-by-case approach.
But, today, on remand, the Court of Appeal doesn't do that. Instead, it reinstates its prior holding. Not by seeing whether the entry was warranted under the Court's new case-by-case holding. But rather on the theory that because its erroneous categorical rule was the law at the time, the exclusionary rule does not apply, regardless of the fact that the Supreme Court granted certiorari and reversed the judgment below in this very case.
Here's the rub, though. If today's opinion is right, what's the incentive for litigants like the defendant here (Lange) to argue for a violation of the Fourth Amendment. Even if they're right, they won't get a victory in their particular case -- just like Lange, here, wins in the Supreme Court, but still ends up a loser, since the victory he won (the case-by-case approach) doesn't get to apply to his own case. That's true not only for Lange, but for everyone else as well. Winners get prospective relief -- for others -- but that doesn't help them at all. They still get convicted under the old, erroneous view given the exception for "reliance on precedent."
So it's essentially a one-way rachet. Once an intermediate appellate court first decides that something doesn't count as a Fourth Amendment violation, the defendant has an incentive to appeal and get that reversed. But thereafter, once there's a precedent, for all practical purposes, that holding is locked in; no defendant has any incentive to challenge it, since even if successful, that change won't benefit him. By contrast, if an intermediate court decides that something does violate the Fourth Amendment, there's no lock-in; in future cases, the government has every incentive to ask that the precedent be changed, because if it changes, there's no exclusion in the present (and future) cases, all of which is to the state's benefit.
That just seems how the law works here. Which is different than in pretty much every other area. We generally -- and purposefully -- give legal changes retrospective (rather than merely prospective) effect in order to incentivize litigants to challenge existing precedent. That system works.
Yet we don't use it here.
