                                                                           FILED
                            NOT FOR PUBLICATION                             APR 05 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10161

              Plaintiff - Appellant,             D.C. No. 5:09-cr-01179-JW-1

  v.
                                                 MEMORANDUM *
JOSE ELOY SILVA,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    James Ware, Chief District Judge, Presiding

                       Argued and Submitted March 16, 2012
                             San Francisco, California

Before: WALLACE and BEA, Circuit Judges, and BENNETT, District Judge.**

       The government appeals from the district court’s decision excluding

evidence found by police after a warrantless search of Silva’s home. We have

jurisdiction under 18 U.S.C. § 3731, and we reverse.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Mark W. Bennett, District Judge for the U.S. District
Court for Northern Iowa, sitting by designation.
      We review motions to suppress evidence from admission at trial de novo,

and factual findings made at the suppression hearing for clear error. United States

v. Basher, 629 F.3d 1161, 1165 (9th Cir. 2011). The government contends that

Silva was properly subject to a search condition at the time of search, because the

2003 reinstatement of probation included the search term from the original 1997

probation order. Alternatively, the government contends that the good faith

exception applies to the officers’ conduct, such that the evidence should not be

excluded even if obtained in violation of the Fourth Amendment.

      We do not address the parties’ arguments whether Silva was properly subject

to a search condition as a matter of California law, because we conclude that even

if Silva was not subject to a search condition, the good faith exception applies and

prevents suppression of the evidence found at Silva’s residence.

      Whether the exclusionary rule applies here is a question of federal, not state,

law. United States v. Chavez-Vernaza, 844 F.2d 1368, 1374 (9th Cir. 1987). The

exclusionary rule’s “sole purpose” is “to deter future Fourth Amendment

violations.” Davis v. United States, 131 S. Ct. 2419, 2426 (2011). Inadvertent

record-keeping errors do not permit application of the exclusionary rule where

there was no “systemic error or reckless disregard of constitutional requirements.”

Herring v. United States, 555 U.S. 135, 147–48 (2009). Good-faith reliance on


                                          2
appellate court precedent that is later overruled also does not allow for exclusion.

Davis, 131 S. Ct. at 2429. The Supreme Court’s holdings in Herring and Davis

compel our conclusion here that the police conduct at issue does not warrant

exclusion. The police officers searched Silva’s residence only after being told by a

probation officer that Silva was indeed subject to a warrantless search condition.

There is no evidence that the officers acted recklessly or that any possible error

was systematic in any way. California law as to whether Silva was in fact subject

to the condition is far from clear, and exclusion under these circumstances would

provide little deterrent effect.

       REVERSED.




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