          Supreme Court of Florida
                                   ____________

                                   No. SC15-2125
                                   ____________


                       CHRISTOPHER L. CARPENTER,
                               Petitioner,

                                          vs.

                              STATE OF FLORIDA,
                                  Respondent.

                                [November 2, 2017]
                               REVISED OPINION

LEWIS, J.

      Christopher L. Carpenter seeks review of the decision of the First District

Court of Appeal in State v. Carpenter, 158 So. 3d 693 (Fla. 1st DCA 2015), on the

basis that it expressly and directly conflicts with the decision of the Second District

Court of Appeal in Willis v. State, 148 So. 3d 480 (Fla. 2d DCA 2014), on a

question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

                          FACTS AND BACKGROUND

      On April 2, 2013, Carpenter was charged with one count of traveling to meet

a minor to commit an unlawful sex act, one count of soliciting a minor to commit
an unlawful sex act, and three counts of transmission of material harmful to a

minor. At the time of the incident, law enforcement already had extensive

evidence that Carpenter, who was twenty-eight years old, had engaged, through e-

mail and text message, in a series of sexually explicit conversations in response to

a Craigslist ad with an undercover officer posing as a fourteen-year-old girl. These

conversations ultimately resulted in Carpenter and the undercover officer planning

to meet. Upon his arrival at the agreed-upon address, officers arrested Carpenter.

      At the time of Carpenter’s arrest, the arresting officers conducted a search

incident to arrest and seized his cell phone, separating Carpenter from the cell

phone. These officers then transported the cell phone in a special protective

covering to a specialty technician who later entered into and searched the phone at

a distant location without first obtaining a warrant. Sexually explicit text messages

and photos were found on the seized cell phone.

      Carpenter filed a motion to suppress the evidence found on his cell phone,

relying on Smallwood v. State (Smallwood II), 113 So. 3d 724 (Fla. 2013), to

support his assertion that the warrantless search of his cell phone violated his

Fourth Amendment rights.

      At the suppression hearing, Investigator Josh Scioners testified that he

performed the forensic examination of Carpenter’s cell phone. Scioners also

testified that cell phones present issues with regard to the potential for the contents


                                         -2-
to be removed or destroyed remotely, thus necessitating turning off the device or

using a Faraday bag, which blocks any signals from coming in or out of the device.

While Faraday bags do help prevent the cell phone’s data from being remotely

erased, these bags are not a guaranteed method of data protection and the cell

phone still must be removed from the Faraday bag to be examined, risking that the

data be compromised. Investigator Scioners further testified that he relied on

Smallwood v. State (Smallwood I), 61 So. 3d 448 (Fla. 1st DCA 2011), when he

searched Carpenter’s phone. He did, however, note that it would have taken a

short time to obtain a warrant and that Carpenter would likely not have had the

opportunity to make any calls while he was detained in the patrol car or initially

transported to the station.

      After the suppression hearing, the trial court granted Carpenter’s motion to

suppress, relying on the holding in Smallwood II that warrantless cell phone

searches are unconstitutional. The First District reversed, relying on Davis v.

United States, 564 U.S. 229 (2011), to support the position that, because the

officers were relying in good faith on the holding in Smallwood I, the appellate

precedent at the time of the search, the evidence recovered from Carpenter’s cell

phone was not subject to the exclusionary rule because the good-faith exception




                                        -3-
applied.1 Carpenter, 158 So. 3d at 697. This review follows.

                                     ANALYSIS

      In Davis, the United States Supreme Court announced the application of the

good-faith exception to the exclusionary rule in cases where officers have

reasonably relied on binding appellate precedent when conducting a search, even

when that appellate precedent is later overruled and the search is deemed to be



      1. Willis also involved a warrantless cell phone search conducted after
Smallwood I but before Smallwood II. The Second District found that the
warrantless search at issue was permitted at the time because Smallwood I was a
decision then binding in Florida under Pardo v. State, 596 So. 2d 665 (Fla. 1992).
Willis, 148 So. 3d at 482.

       The Second District nevertheless noted that the case law with regard to what
constitutes “binding appellate precedent” permitting “objectively reasonable
reliance” was still unsettled. Id.
      The rule in Pardo was created to establish consistency within Florida
      law in light of our unique system in which the intermediate appellate
      courts are intended to be the normal final courts of review. . . . But an
      opinion from a single district court is not binding on another district
      court in Florida. We are not inclined to believe that the rule
      announced in Pardo should be used in the Fourth Amendment context
      to determine whether evidence from a warrantless search is
      admissible.

Id. at 482-83 (citations omitted). The Second District expressed its doubts that the
rule announced in Pardo was intended to establish that “one recent decision from
another Florida district court of appeal on such a controversial issue [was
sufficient] to create ‘binding precedent,’ at least in other districts, for purposes of
the good-faith exception as announced in Davis.” Id. at 483. Thus, the Second
District in Willis found that the good-faith exception to the exclusionary rule did
not apply. Id.


                                         -4-
unconstitutional. 564 U.S. at 232. Davis involved the search of a vehicle

passenger compartment after the police had removed the individuals from the

vehicle and secured two arrestees in the back of patrol cars. Id. at 235. The

officers, in conducting the search, were relying on the United States Supreme

Court’s holding in New York v. Belton, 453 U.S. 454, 459 (1981), which had been

utilized and controlling for almost thirty years, and which held that “when a

policeman has made a lawful custodial arrest of the occupant of an automobile, he

may, as a contemporaneous incident of that arrest, search the passenger

compartment of that automobile.” Davis, 564 U.S. at 233 (quoting Belton, 453

U.S. at 459-60). For almost thirty years, courts across the United States had

uniformly read Belton’s holding as authorizing vehicle searches incident to arrest,

regardless of whether the arrestee was secured in a patrol car or within reaching

distance of the vehicle. Id.

      While Davis’s appeal was pending in the United States Court of Appeals for

the Fourth Circuit, the United States Supreme Court released its decision in

Arizona v. Gant, 556 U.S. 332 (2009), which created a new rule that limited

Belton’s holding. In discussing the new Gant decision, the Supreme Court

emphasized in Davis that the exclusionary rule’s purpose is to deter future Fourth

Amendment violations: “For exclusion to be appropriate, the deterrence benefits of

suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237.


                                        -5-
      The Supreme Court explained that Davis’s claim turned on the lack of police

culpability, and determined that penalizing officers for continuing to follow the

then-binding law, which had been clearly controlling for almost thirty years at the

time of the search, would not have the requisite deterrent effect needed to justify

exclusion. Id. at 240-41.

             About all that exclusion would deter in this case is
      conscientious police work. Responsible law-enforcement officers will
      take care to learn “what is required of them” under Fourth
      Amendment precedent and will conform their conduct to these rules.
      But by the same token, when binding appellate precedent specifically
      authorizes a particular police practice, well-trained officers will and
      should use that tool to fulfill their crime-detection and public-safety
      responsibilities. An officer who conducts a search in reliance on
      binding appellate precedent does no more than “ ‘ac[t] as a reasonable
      officer would and should act’ ” under the circumstances. The
      deterrent effect of exclusion in such a case can only be to discourage
      the officer from “ ‘do[ing] his duty.’ ”
             That is not the kind of deterrence the exclusionary rule seeks to
      foster. We have stated before, and we reaffirm today, that the harsh
      sanction of exclusion “should not be applied to deter objectively
      reasonable law enforcement activity.” Evidence obtained during a
      search conducted in reasonable reliance on binding precedent is not
      subject to the exclusionary rule.
Id. at 241 (emphasis and alterations in original) (citations omitted). Thus, the

Supreme Court in Davis held that the good-faith exception to the exclusionary rule

applied when officers acted with objectively reasonable reliance on binding

judicial precedent that had been in place and followed for almost thirty years.

      The State and our dissenting colleagues in this case seek to expand Davis to

the significantly different facts here. We reject that expansion.


                                        -6-
       In Davis, the officers, in conducting the later-invalidated search, were

relying on the 1981 holding in Belton, which had been the law from the United

States Supreme Court for almost thirty years and had been uniformly applied

across the country before Gant was decided in 2009.2 Conversely, Smallwood I

was decided on April 29, 2011, and was under active consideration by this Court

when the search of Carpenter’s cell phone was conducted on June 14, 2012.

Unlike the law under Belton, which had been in force for almost thirty years when

the officers in Davis relied on Belton, the officers in this case were relying on an

opinion that was not only not well-established, but on the face of the Smallwood I

opinion, doubt was expressed and the case was certified to this Court for final

Florida consideration. Moreover, the Second District’s decision in Willis, holding

that the exclusionary rule applied to a warrantless cell phone search, further fuels

the notion that the issue of warrantless cell phone searches was a significant and

still-developing area of law and thus not one that the officers should have relied

upon as being well-established precedent under Davis. See Willis, 148 So. 3d at

482.

       The holding in Davis was logical, based on the longstanding, thirty-year




      2. In fact, a cursory search of Westlaw reveals at least 3,086 cases
referencing Belton from the time of its release until the release of Gant.


                                         -7-
precedent that had been overruled by Gant. The State, however, asks us to expand

Davis to a case where the facts present a highly uncertain area of law and the

precedent relied upon demonstrates on its face that it was certified to a higher court

for resolution. The face of the opinion reflected this status. The State’s attempt to

cherry pick favorable parts of a district court of appeal opinion while ignoring

other portions of that same opinion defies logic and expands Davis in a way that

we cannot endorse.

      Recognizing the rapidly developing nature of technology, the First District

in Smallwood I expressed its concern with the holding, which would permit

warrantless cell phone searches, and thus certified the question to this Court for

final resolution as one of great public importance. 61 So. 3d at 461-62. In

expressing its unease, however, the First District was clearly satisfying the state-

required procedural hurdle of issuing a decision for this Court to exercise

jurisdiction to review and decide the issue, rather than issuing a final ruling that

was contemplated to be the final Florida determination on the matter of warrantless

cell phone searches. As we explained in Floridians for a Level Playing Field v.

Floridians Against Expanded Gambling,

      In order to have discretionary jurisdiction based on a certified
      question, there are essentially three prerequisites that must be met.
      First, it is essential that the district court of appeal pass upon the
      question certified by it to be of great public importance. . . . Second,
      there must be a district court “decision” to review. See art. V, §
      3(b)(4), Fla. Const. For instance, where a district court is unable to

                                         -8-
      reach a clear majority decision on an issue and elects to certify a
      question without resolving the merits, we are without jurisdiction to
      answer such a question under article V, section 3(b)(4) of the Florida
      Constitution. . . . Third, . . . the question must be in fact “certified” by
      a majority decision of the district court.
967 So. 2d 832, 833 (Fla. 2007) (emphasis added) (footnote omitted); see also art.

V, § 3(b)(4), Fla. Const. (The Florida Supreme Court “[m]ay review any decision

of a district court of appeal that passes upon a question certified by it to be of great

public importance . . . .” (emphasis added)). Thus, absent issuing an actual

decision, the First District would not have been able to certify the question to this

Court for final consideration and determination.

      Furthermore, in the Smallwood I opinion, the First District certified the

precise question to this Court with regard to the new subject of cell phone searches

as one of great public importance, thus placing law enforcement officers on actual

notice that the case was subject to further consideration on the face of the opinion.

61 So. 2d at 462. Until this Court issued either an order declining review or an

opinion deciding the issue, Smallwood I was not final, well-settled, unequivocal, or

clearly established. See Davis, 564 U.S. at 251 (Sotomayor, J., concurring in

judgment); see also United States v. Sparks, 711 F.3d 58, 64-66 (1st Cir. 2013)

(elaborating on the meaning of “well-settled law”); United States v. Lee, 862 F.

Supp. 2d 560, 568-69 (E.D. Ky. 2012) (stating that officers must rely on

unequivocal and well-settled decisions of binding legal authority); Willis, 148 So.



                                          -9-
3d at 483 n.2 (“[W]hen a Fourth Amendment issue is rapidly evolving, it is hard to

justify an approach to the good-faith exception that allows the first defendant to

reach the United States Supreme Court to receive the benefit of the exclusionary

rule while other defendants in the legal pipeline do not.”). While the State relies

on Pardo to argue the binding nature of the Smallwood I decision, it misapplies

Pardo’s underlying premise from a different context that an opinion from a Florida

district court of appeal is not final if it is still being reviewed by this Court. See

Pardo, 596 So. 2d at 666 (“This Court has stated that ‘[t]he decisions of the district

courts of appeal represent the law of Florida unless and until they are overruled by

this Court.’ ” (emphasis added)). In fact, the rule announced in Pardo was not

designed or intended to describe the parameters of Fourth Amendment search and

seizure law, especially for a case pending review in this Court; rather, it was a rule

geared toward promoting judicial convenience in Florida’s uniquely constructed

judicial system. E.g., Willis, 148 So. 3d at 483 (“We are not inclined to believe

that the rule announced in Pardo should be used in the Fourth Amendment context

to determine whether evidence from a warrantless search is admissible.”).

Moreover, while an opinion from a district court of appeal may be binding on

lower trial courts in Florida under a Pardo theory, this fact does not necessarily

justify law enforcement’s reliance on that decision as “binding” law authorizing a

warrantless cell phone search, especially when on actual notice of the pending


                                          - 10 -
review in this Court. Indeed, this issue can be likened to that of Schrödinger’s Cat,

where a decision of a district court of appeal may be both binding and not binding,

while under review in this Court, until a decision is rendered by this Court

ultimately answering the question.

      Additionally, Davis made clear that the exclusionary rule is only to be

applied if the underlying deterrent effect on law enforcement will be achieved,

which was found not to be the case in Davis. 564 U.S. at 237 (“Where suppression

fails to yield ‘appreciable deterrence,’ exclusion is ‘clearly . . . unwarranted.’ ”

(quoting United States v. Janis, 428 U.S. 433, 454 (1976))). In Carpenter’s case,

however, suppression would further the exclusionary rule’s intended deterrence

because law enforcement officers would now, in areas of unsettled law, be

reminded to err on the side of caution by obtaining a search warrant instead of

relying on nonfinal, unsettled questions of law still under active review in this

Court. The “conscientious police work” discussed in Davis requires that officers

not engage in warrantless searches unless clearly authorized by law to do so. Thus,

if the law on a particular issue is still developing, it is not reasonable for officers to

rely on questionable decisions in pipeline cases to justify warrantless searches

when the nonfinal nature of the decision is noted on the face of the opinion. Our

conclusion is again buttressed by the Second District’s opinion in Willis.




                                          - 11 -
      Perhaps the most instructive aspect of Davis, for our purposes, is Justice

Sotomayor’s opinion concurring in judgment, which predicted the issue arising in

the present case and explicitly stated that the holding in Davis did not answer the

question of the good-faith exception’s application to areas of law that were

unsettled at the time of the search. Davis, 564 U.S. at 250-51 (Sotomayor, J.,

concurring in judgment). This is such a case. Aside from the national variation on

the issue of warrantless cell phone searches incident to arrest, the very fact that the

case on which the officers relied was under active review in this Court indicates

that the law was not yet settled as to the issue of warrantless cell phone searches in

Florida at the time of Carpenter’s search for purposes of the Davis analysis. The

First District’s certified question to this Court only furthers the notion that the

officers in Carpenter’s case should not have relied on Smallwood I as being the

final controlling judicial precedent in this area of constitutional law while the case

was certified to this Court for final decision. Since the issue decided in Smallwood

I was one concerning a rapidly developing area of unsettled law at the time of the

officers’ alleged reliance, the State’s reliance on the United States Supreme

Court’s holding in Davis to justify the search is misplaced. Furthermore, the

dissent attempts to broadly force cases with vastly different facts into Davis’s

application, which is precisely what Justice Sotomayor predicted would happen.




                                         - 12 -
         Finally, in determining whether exclusion is warranted in this case, we must

determine whether the deterrent benefits of exclusion outweigh the heavy societal

costs.

         If, as the Government argues, all rulings resolving unsettled Fourth
         Amendment questions should be nonretroactive, then, in close cases,
         law enforcement officials would have little incentive to err on the side
         of constitutional behavior. Official awareness of the dubious
         constitutionality of a practice would be counterbalanced by official
         certainty that, so long as the Fourth Amendment law in the area
         remained unsettled, evidence obtained through the questionable
         practice would be excluded only in the one case definitively resolving
         the unsettled question.

Davis, 564 U.S. at 250-51 (Sotomayor, J., concurring in judgment) (quoting United

States v. Johnson, 457 U.S. 537, 561 (1982)); see also Lee, 862 F. Supp. 2d at 569

(“If law enforcement could ‘rely on non-binding authority . . .’ officers would ‘beg

forgiveness rather than ask permission in ambiguous situations involving . . . basic

civil rights.’ ” (citations omitted)). The scenario described above is the exact

scenario at issue in Carpenter’s case. Holding that the good-faith exception applies

when officers rely on developing law that facially demonstrates the status of

further review is a slippery slope which essentially abrogates the exclusionary rule

in cases concerning unsettled law. The deterrent benefits of exclusion in

Carpenter’s case outweigh the societal costs because exclusion reminds law

enforcement officers that warrantless searches are the exception to the rule and that

this exception should only be used when specifically authorized by law. The rule



                                          - 13 -
on searches in questionable areas of law is simple and unequivocal: Get a warrant.

See Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (“[T]he most basic

constitutional rule in this area is that ‘searches conducted outside the judicial

process, without prior approval by judge or magistrate, are per se unreasonable

under the Fourth Amendment—subject only to a few specifically established and

well-delineated exceptions.’ ” (emphasis added)); see also Riley v. California, 134

S. Ct. 2473, 2493 (2014) (“Our cases have historically recognized that the warrant

requirement is ‘an important working part of our machinery of government,’ not

merely ‘an inconvenience to be somehow “weighed” against the claims of police

efficiency.’ ” (quoting Coolidge, 403 U.S. at 481, 491)).

      Therefore, contrary to the dissent, we hold that, under Davis, the good-faith

exception to the exclusionary rule does not apply to Carpenter’s case because the

officers were not relying on the type of longstanding, thirty-year appellate

precedent at issue in Davis, but rather on a nonfinal, pipeline case still under active

review in this Court at the time of the search.

                                   CONCLUSION

      Accordingly, we quash the First District’s decision below in Carpenter and

hold that the good-faith exception to the exclusionary rule does not apply to the

officers’ warrantless search of Carpenter’s cell phone in this case. Moreover,

although Willis reached the correct result, we do not adopt the reasoning used in


                                         - 14 -
reaching that result. As such, we disapprove of the opinion in Willis to the extent

that it conflicts with this opinion.

      It is so ordered.

LABARGA, C.J., and PARIENTE, and QUINCE, JJ., concur.
LAWSON, J., dissents with an opinion, in which CANADY and POLSTON, JJ.,
concur.

NO MOTION FOR REHEARING WILL BE ALLOWED.

LAWSON, J., dissenting.

      I respectfully dissent. Article I, section 12, of the Florida Constitution, as

amended in 1982, mirrors the protection against unreasonable searches and

seizures found in the Fourth Amendment, but also mandates that this protection

“shall be construed in conformity with the 4th Amendment to the United States

Constitution, as interpreted by the United States Supreme Court.” Id.3 Clearly, we

are bound by the United States Supreme Court’s Fourth Amendment jurisprudence,

including the majority opinion in Davis v. United States, 564 U.S. 229 (2011).

      In Davis, the United States Supreme Court held that the exclusionary rule is

not to be applied “when the police conduct a search in objectively reasonable

reliance on binding judicial precedent.” Id. at 239, 241. The majority mistakenly



       3. “The commentary to the 1982 amendment states that the amendment was
necessary to modify the exclusionary rule [in Florida] and to allow adherence by
the Florida courts to the good faith exception adopted by the federal courts.” Crain
v. State, 914 So. 2d 1015, 1022-23 (Fla. 5th DCA 2005) (en banc).

                                        - 15 -
fails to follow this binding precedent and, instead, applies the analysis in Justice

Sotomayor’s separate opinion, in which she expresses her disagreement with the

rule announced by the six-person Davis majority but explains that she would

nevertheless reach the same result in Davis, given the facts of that case. By

“facts,” here, I mean the state of the law at issue in Davis. In other words, Justice

Sotomayor would have excluded the evidence in that case if the law relied upon by

police was merely “binding precedent,” but agreed to application of the “good faith

exception” in Davis because the law in question had also become well-settled. See

id. at 250 (Sotomayor, J., concurring in judgment). That is the analysis of our

majority here. However, we are bound to follow Davis, which properly fashioned

a different rule—one grounded in the Davis majority’s clear understanding of the

purpose and limits of the exclusionary rule, as well as the interests at stake.

      As explained in Davis:

             The Fourth Amendment protects the right of the people to be
      secure in their persons, houses, papers, and effects, against
      unreasonable searches and seizures. The Amendment says nothing
      about suppressing evidence obtained in violation of this command.
      That rule—the exclusionary rule—is a prudential doctrine, created by
      this Court to compel respect for the constitutional guaranty.
      Exclusion is not a personal constitutional right, nor is it designed to
      redress the injury occasioned by an unconstitutional search. The
      rule’s sole purpose, we have repeatedly held, is to deter future Fourth
      Amendment violations. Our cases have thus limited the rule’s
      operation to situations in which this purpose is thought most
      efficaciously served. Where suppression fails to yield appreciable
      deterrence, exclusion is clearly unwarranted.


                                         - 16 -
Id. at 236-37 (internal citations, quotation marks, and quotations omitted). The

Davis majority further explained that, although “[r]eal deterrent value is a

necessary condition for exclusion, . . . it is not a sufficient one.” Id. at 237

(internal quotation omitted). This is the critical juncture at which our majority, like

Justice Sotomayor, diverges from the opinion of the Court in Davis in its

philosophical view as to how the exclusionary rule should be applied. Both would

prefer a rule grounded solely in deterrence of potential Fourth Amendment

violations. But, as explained in Davis:

      The analysis must also account for the substantial social costs
      generated by the rule [because] [e]xclusion exacts a heavy toll on both
      the judicial system and society at large. It almost always requires
      courts to ignore reliable, trustworthy evidence bearing on guilt or
      innocence. And its bottom-line effect, in many cases, is to suppress
      the truth and set the criminal loose in the community without
      punishment. Our cases hold that society must swallow this bitter pill
      when necessary, but only as a last resort. For exclusion to be
      appropriate, the deterrence benefits of suppression must outweigh its
      heavy costs.

Id. (internal citations and quotation marks omitted).

      Factoring in the reality of these societal costs, the United States Supreme

Court’s focus has shifted from the deterrent effect of exclusion to “the flagrancy of

the police misconduct at issue.” Id. at 238 (internal quotation omitted). Given that

focus, it is easy to see why the United States Supreme Court chose the rule that it

did in this context over the rule that Justice Sotomayor and our majority prefer:

There is simply no way that reliance on binding legal precedent—whether well-

                                          - 17 -
settled or not—can be cast as police misconduct, much less “flagrant” police

misconduct.

      The officer in this case relied upon case law that bound every trial court in

Florida. The fact that the opinion had been issued by an intermediate appellate

court, or that the appellate court had certified the question to our Court, does not

change the relevant “facts”: (1) at the time of the search in this case, only one

Florida appellate court had addressed the issue; (2) this sole appellate opinion held

that no warrant was needed to search the contents of a cell phone lawfully seized

incident to a valid arrest; and (3) this law was binding precedent throughout the

State of Florida. Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (holding that

decisions of a district court of appeal constitute binding appellate precedent and

“represent the law of Florida unless and until they are overruled by this Court”

(internal quotation omitted)).

      Our majority’s attempted explanation of the Davis majority opinion as also

justified based upon the “well-settled” understanding of the “search incident to

arrest” rule announced in New York v. Belton, 453 U.S. 454 (1981), is simply not

plausible. Although Davis recognized that Belton was “[f]or years . . . widely

understood to have set down a simple, bright-line rule,” Davis, 564 U.S. at 233, the

Davis majority pointed out that “[n]ot every court . . . agreed with this reading of

Belton.” Id. at 234. However, the only contrary case cited by the Davis majority,


                                        - 18 -
State v. Gant, 162 P.3d 640 (Ariz. 2007), aff’d, Arizona v. Gant, 556 U.S. 332

(2009), was decided approximately three months after Mr. Davis’s arrest “[o]n an

April evening in 2007 . . . in Greenville, Alabama.” Davis, 564 U.S. at 234-235.

Clearly, the Davis majority could have framed the issue as preferred by Justice

Sotomayor with the same result.

      Instead, the Davis majority analyzed the issue based upon controlling

precedent from the Eleventh Circuit Court of Appeals, which was binding in the

Middle District of Alabama, where and when the search occurred. Id. at 235, 239-

40. The Court ultimately concluded that because police conducted the search in

reliance upon “binding judicial precedent” in their federal district, the “absence of

police culpability dooms Davis’s claim [that the exclusionary rule should apply].”

Id. at 239-40. Were we to apply this same analysis here, we would disapprove the

Second District’s opinion and approve the First District’s opinion—and the

evidence in this case would not be suppressed.

      Finally, it is worth noting that our majority’s opinion is antithetical to a

significant proposition underlying the good-faith exception, which is also

addressed by the Davis majority: the exclusionary rule should not be used to

penalize an officer for judicial errors. Id. at 241. This is not a new or novel idea,

but the very “rationale behind” the good-faith exception, beginning with the

seminal United States Supreme Court case addressing the exception, United States


                                        - 19 -
v. Leon, 468 U.S. 897 (1984). See State v. McGill, 125 So. 3d 343, 352 (Fla. 5th

DCA 2013) (“The rationale behind the good faith exception is that the

exclusionary rule ‘is designed to deter police misconduct rather than to punish the

errors of judges and magistrates.’ ” (quoting Leon, 468 U.S. at 916)). It would

defy logic to suggest that a rule designed to allow law enforcement to rely upon the

judgment of a single magistrate would have the same law enforcement officer

question a rule of law announced in precedent from the appellate court binding in

his or her jurisdiction. Cf. State v. Watt, 946 So. 2d 108, 110 (Fla. 5th DCA 2007)

(“In order to reject the application of the good faith exception in this case, we

would need to conclude that an objectively reasonable police officer would have a

better understanding of the law of search and seizure and probable cause than did

the trial judge who issued the warrant.”).

      In contrast to this Court’s novel approach, the majority in Davis would

encourage law enforcement officers to stay abreast of the law in their jurisdictions

and govern themselves based upon the pronouncements in binding appellate

precedent:

             About all that exclusion would deter in this case is
      conscientious police work. Responsible law-enforcement officers will
      take care to learn what is required of them under Fourth Amendment
      precedent and will conform their conduct to these rules. But by the
      same token, when binding appellate precedent specifically authorizes
      a particular police practice, well-trained officers will and should use
      that tool to fulfill their crime-detection and public-safety
      responsibilities. An officer who conducts a search in reliance on

                                        - 20 -
      binding appellate precedent does no more than act as a reasonable
      officer would and should act under the circumstances. The deterrent
      effect of exclusion in such a case can only be to discourage the officer
      from doing his duty.
             That is not the kind of deterrence the exclusionary rule seeks to
      foster. We have stated before, and we reaffirm today, that the harsh
      sanction of exclusion should not be applied to deter objectively
      reasonable law enforcement activity. Evidence obtained during a
      search conducted in reasonable reliance on binding precedent is not
      subject to the exclusionary rule.

Davis, 564 U.S. at 241 (internal citations and quotation marks omitted).

      We should apply Davis, as our Constitution requires, and hold that because

the officers in this case acted in good-faith reliance on binding appellate precedent,

the sexually explicit messages and images revealed during their search of Mr.

Carpenter’s cell phone are not subject to the exclusionary rule. Therefore, I

dissent.

CANADY and POLSTON, JJ., concur.

Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions

      First District - Case No. 1D13-6199

      (Bay County)

Ross A. Keene of Ross Keene Law, P.A., Pensacola, Florida,

      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, and
Virginia Harris, Assistant Attorney General, Tallahassee, Florida,

      for Respondent

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