Pre-Gant Search Upheld Under Good Faith Exception
United States v. McCane, ___ F.3d ___, 2009 WL 2231658 (10th Cir. 2009).
Following Gant, the Court determined that the search was not valid as incident to the defendant’s lawful arrest (Defendant arrested for a traffic violation and cuffed and placed in patrol car, the car was then searched and a gun found) but upheld the search under the good faith exception to the exclusionary rule per Herring. In the first (second?) of what can be expected to be many Herring-driven erosions of the exclusionary rule, the Court determined that there was no deterrent value in suppressing evidence when the police officer, in the pre-Gant seizure, had relied upon the existing law which made such seizures legal.
Unremarkable sufficiency of evidence determination–gun in driver’s door where Defendant was sitting, and he made an inculpatory blurt-out statement indicating knowledge of gun.
Felon in possession, 18 USC Sec. 922(g), is constitutional–Heller explicitly stated that the opinion did not affect prohibition on felons possessing firearms. Tymkovitch’s concurrence bemoans the door shutting to a broader exploration of what the “felon dispossession” statutes mean in the context of the Second Amendment, identifying that language in Heller as dicta, but feeling bound by it.
Following Gant, the Court determined that the search was not valid as incident to the defendant’s lawful arrest (Defendant arrested for a traffic violation and cuffed and placed in patrol car, the car was then searched and a gun found) but upheld the search under the good faith exception to the exclusionary rule per Herring. In the first (second?) of what can be expected to be many Herring-driven erosions of the exclusionary rule, the Court determined that there was no deterrent value in suppressing evidence when the police officer, in the pre-Gant seizure, had relied upon the existing law which made such seizures legal.
Unremarkable sufficiency of evidence determination–gun in driver’s door where Defendant was sitting, and he made an inculpatory blurt-out statement indicating knowledge of gun.
Felon in possession, 18 USC Sec. 922(g), is constitutional–Heller explicitly stated that the opinion did not affect prohibition on felons possessing firearms. Tymkovitch’s concurrence bemoans the door shutting to a broader exploration of what the “felon dispossession” statutes mean in the context of the Second Amendment, identifying that language in Heller as dicta, but feeling bound by it.
posted by Anonymous at 1:22 PM
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