Branner

Almost a century ago, when it created the exclusionary rule to deter improper conduct by law enforcement officers, the United States Supreme Court held the guilty must go free when evidence essential for their convictions was obtained by an officer in violation of the right against unreasonable search and seizure enshrined in the Fourth Amendment to the United States Constitution. ( Weeks v. United States (1914) 232 U.S. 383 [ 58 L.Ed. 652 , 34 S.Ct. 341 ]; see also United States v. Leon (1984) 468 U.S. 897, 906 [ 82 L.Ed.2d 677, 687 , 104 S.Ct. 3405 ]; Mapp v. Ohio (1961) 367 U.S. 643 [ 6 L.Ed.2d 1081 , 81 S.Ct. 1684 ].)

A question posed in this case is whether the guilty must go free when (1) at the time such evidence was obtained by a law enforcement officer, a decision of the United States Supreme Court instructed the officer that the manner in which he searched for and seized the evidence was lawful, but (2) thereafter, the Supreme Court changed its mind. As we will explain, the answer is "No."

Although it may be that a "criminal is to go free because the constable has blundered" ( People v. Defore (1926) 242 N.Y. 13, 21 [ 150 N.E. 585 ]), the guilty…