The Supreme Court gave a big victory to criminal defendants last week when it held in Riley v. California that the police need a warrant to search a cell phone incident to arrest. But now lower courts are turning to the remedy question:  Who actually gets to benefit from the new case? For many defendants who had their phones illegally searched, the victory in Riley will be a symbolic one. They won’t get the benefit of the new case. And that may include Riley himself.

The culprit is the continued expansion of the good-faith exception to the exclusionary rule. In Davis v. United States, the Supreme Court ruled that the exclusionary rule is not available if a search is ruled unconstitutional but it was authorized by “binding appellate precedent” at the time the search occurred. As I explained in this post, some lower courts have interpreted Davis to apply broadly even when no binding appellate precedent authorized the search. Under these cases, relatively few defendants will get the benefit of the Riley rule. Even Riley himself may not get the benefit of his own decision.

Consider United States v. Clark, 2014 WL 2895457 (E.D. Tenn., June 26, 2014), handed down the day after Riley. In 2013, an officer arrested Clark for unlawful possession of a handgun. Clark had a smartphone in his pocket, and the officer looked through the call logs and text messages of the phone incident to Clark’s arrest. The defendant moved to suppress the evidence found in the phone. Now that Riley has been decided, it is clear that the officer’s search of the smart phone was unconstitutional. Nonetheless, the district court ruled that the exclusionary rule doesn’t apply and the evidence comes in. No binding appellate precedent told the officer that he could search the phone. So Davis doesn’t directly apply. But the court ruled that the evidence should be allowed in anyway because the officer took the stand and explained that he thought the search he made was lawful. The magistrate judge believed the officer’s testimony that he really believed he had the legal authority to conduct the search. The district court defers to that credibility finding and concludes that such a belief was reasonable. Because an officer could have reasonably had that belief in 2013, when the search occurred, the exclusionary rule is not appropriate and the evidence comes in.

Importantly, there’s nothing stopping that same reasoning from applying to Riley’s own case on remand. If anything, the case for suppression in Clark is stronger than that in Riley. By the time of the search in Clark, there was a deep circuit split on the legality of searches incident to arrest. Weeks earlier, the Supreme Court had granted cert in Riley and Wurie to settle the question. In contrast, Riley was searched in August 2009, back when the Fifth Circuit had held that such searches were permissible and no contrary appellate authority existed.

Of course, none of this means that Riley won’t get relief. Lower courts are deeply divided on the scope of Davis, and it may be that the California courts will rule that Riley should get the benefit of the rule announced in his case. But they might not. It all depends how courts interpret Davis and its good-faith exception. As always, stay tuned.