There are four words that decide more digital-search cases than any doctrine you learned in law school: the good-faith exception. It is the quiet valve that lets a court say the government violated the Fourth Amendment and still keep the evidence. And because it can go either way depending entirely on how a court frames it, it is the single most important — and least predictable — thing standing between a digital search and a remedy. I want to show it doing its two opposite jobs, in two cases, because the gap between them is the gap Tuesday’s § 9 is built to close.
Start with the duck. I’ve written before about United States v. Ganias, so I’ll keep it tight. The government imaged an accountant’s hard drives under a warrant for one investigation, kept the non-responsive remainder for years, and then — in a new investigation, for a different crime — went back and searched the retained copies. A Second Circuit panel held, in 2014, that this violated the Fourth Amendment: retaining the non-responsive data indefinitely and mining it later turned a particular warrant into a general one. For a moment there was a rule. Then the full court reheard the case and, in 2016, made the rule vanish — not by overruling it, but by declining to decide. It held that even if the retention violated the Fourth Amendment, the agents had relied in good faith on the later warrant, so the evidence would not be suppressed. The question — may the government keep and re-search your non-responsive data for years? — was left exactly as open as the court found it. Good faith was the exit. The practice walked out the door with the evidence, un-ruled-upon, free to continue.
That is the good-faith exception at its most corrosive: not excusing an honest slip, but letting the court avoid deciding the hard question at all, which lets the challenged practice entrench. Resolve enough digital-search cases that way and you never build the law — you just keep grandfathering the newest aggressive technique into normalcy on the theory that, since no court has said it’s unlawful, relying on it was reasonable.
Now the day it ran out. This past July, in United States v. Holcomb, the Ninth Circuit did the opposite, and it is worth walking through because it shows what the exception looks like with limits.
The facts, kept to the Fourth Amendment. Police investigating an alleged assault obtained a warrant to search Holcomb’s computer. One provision of that warrant — a “dominion and control” clause meant to establish whose device it was — had no time limitation at all; it authorized the examiner to roam the machine’s files without temporal bound. The forensic examiner reviewed everything rather than filtering to the period of the alleged offense. He found a video from the relevant window that appeared consensual; the prosecutor and a detective agreed it showed no crime, and he was told to stop. He kept searching older files anyway — and found videos, years older, depicting child sexual abuse. A further warrant and a prosecution followed. The district court first suppressed, then reconsidered and admitted the evidence under the good-faith exception. Holcomb was convicted.
The Ninth Circuit reversed, suppressed the evidence, and vacated the conviction — and the reasoning is the piece that matters for § 9. The court was willing to assume the officers acted in good faith when they began the search. But good faith, it held, is not a permit you punch once and carry through the whole search. Probable cause dissipated the moment the officers viewed the video and saw it depicted no forcible assault — at that point the justification for continuing to search was gone, and continuing anyway was no longer reasonable or in good faith. The no-time-limit “dominion and control” provision had, in the court’s words, effectively transformed the warrant into a general warrant; and plain view could not rescue the discovery, because by the time the examiner found the older files he was no longer lawfully searching the place he’d found them. Good faith at the start could not launder a search that had outrun its own justification.
Hold the two cases side by side, because together they are the whole argument. Same doctrine. Opposite results. In Ganias, good faith was a blanket — earned at the warrant stage, stretched to cover years of retention and a re-search for a different crime, and used to avoid ever deciding whether any of that was lawful. In Holcomb, good faith was a moment — present at the outset, extinguished the instant the justification dissipated, and unavailable to cover the search that continued past it. The difference between a Fourth Amendment that binds digital searches and one that doesn’t turns out to be nothing more than which of these two framings a court reaches for.
And that is intolerable as a way to run a constitutional remedy. Whether the government can keep and mine your data, or search your whole device past the point its warrant justified, should not depend on whether you draw the panel that treats good faith as a blanket or the panel that treats it as a moment. Holcomb is plainly the better reading — it keeps good faith tethered to ongoing reasonableness, which is what “good faith” is supposed to mean — but it is a reading, not a rule, and the next court is free to reach for Ganias‘s blanket instead.
Section 9 removes the coin flip. It writes Holcomb‘s instinct into statute: good faith is not a blanket; reliance must stay reasonable throughout; and there is no good-faith reliance on the absence of a rule, because the Act supplies the rules the current doctrine lets courts pretend are still open questions. Once the retention clock and the use restriction are black-letter, a court cannot say “the agents reasonably believed they could keep and re-search forever” — the statute says they couldn’t, and good faith has nothing left to attach to. Holcomb is what the exception looks like with teeth. The model act makes those teeth mandatory instead of optional.
Let me take the hardest version of the objection head-on, because Holcomb invites it. The suppression there freed a defendant the district court had convicted of a grave child-exploitation offense, on what a lot of people will call a technicality. I don’t wave that away; the gravity is real. But look precisely at what the “technicality” was. It was a warrant with no limits — a general warrant — and a search that kept going after everyone involved agreed the justification for it had evaporated. The remedy fell on the government’s own choices: to draft an unbounded authorization, and to keep digging past the point the law allowed. That is not a trivial paperwork error the exclusionary rule swept up by accident. It is exactly the conduct the Fourth Amendment exists to deter, and the way to avoid the result in the next case is not to loosen the remedy — it is for the government to write bounded warrants and stop when the justification runs out. A rule the government can follow, and a remedy that bites when it doesn’t, is how you get both the conviction and the Constitution. A blanket good-faith exception gives you neither — it just defers the reckoning to a case that never comes.
That’s the good-faith exception, caught doing both of its jobs. In one case it is the government’s escape hatch; in the other it is the citizen’s remedy. Tuesday’s § 9 is about making sure it can only be the second kind. Next week, § 10: what happens to the person whose data the government abused in a case that produces no prosecution at all — and so never produces a suppression motion, because there is nothing to suppress.
Leave a Reply