Court suppresses fruit of warrantless GPS tracking, but could inevitable discovery have saved it?

In United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. 2012), the court ordered suppression of evidence obtained as part of an investigation using a GPS device installed without a search warrant. A later search was not sufficiently attenuated, and the use of GPS was not in good faith.

The defendant was suspected of drug trafficking, and a DEA officer installed a GPS device on his car without a search warrant. The device allowed them to track his movements, and the DEA notified state police of the investigation. State police were notified of the defendant's location and ultimately stopped the defendant for not wearing a seatbelt. During the stop, 150 pounds of marijuana was found.

The magistrate recommended suppression of the evidence, and the government objected, arguing "that the traffic stop was sufficiently attenuated from the illegal GPS search to expunge the taint of the illegal search, and even if it was not, that the officers acted in good faith."

Because of the timing, lack of intervening circumstances which might have severed the unconstitutional use of GPS, and the fact "that the police misconduct was guided by an impermissible purpose," the district court found that the stop was not sufficiently attenuated.

The court also refused to extend the good faith exception. In circuits that had allowed warrantless GPS prior to Jones, courts have been allowing the use of GPS data obtained prior to Jones (see previous post here). However, as the court noted, allowing the use of non-binding authority to support a good faith argument would allow officers to "beg forgiveness rather than ask permission in ambiguous situations involving . . . basic civil rights" (quoting United States v. Katzin, 2012 U.S. Dist. LEXIS 65677, (E.D. Pa. 2012)).

Possible Argument
An argument I think would be interesting in this type of situation would be inevitable discovery with CSLI. If the government could get the defendant's CSLI records showing his movement along the same route, they could have had the same result. Since CSLI data can be obtained with specific and articulable facts (rather than the higher probable cause standard), the government could show that if they had known the GPS use would be unconstitutional, they would have just used CSLI, still been able to track the defendant, and still found the pot. The pot, being derivative evidence, would likely be admissible. Some courts would not allow the GPS data itself to be admitted (as it's primary evidence), but it's not that important when you have 150 pounds of marijuana to prove your case.