District court okays warrantless pre-Jones GPS use, holds that good faith rule doesn't require binding precedent

A Massachusetts district court judge has held that evidence acquired as the result of GPS use before Jones is not subject to suppression because law enforcement acted in good faith, pursuant to nonbinding precedent. United States v. Baez, 2012 U.S. Dist. LEXIS 97969 (D. Mass. 2012). In 2010, law enforcement suspected the defendant of having committed arson and placed a GPS device on his car. The device was active for 347 days. He was later arrested after another fire and sought suppression at trial.

The district court found that "the warrantless GPS tracking of Baez's vehicles [was] at a time when there was unanimous support for its validity in the face of Fourth Amendment challenge" as his arrest took place just three days after Maynard, the only federal appellate court opinion to find that warrantless GPS use was a constitutional violation. "Given the vast weight of authority—albeit not formally binding in the First Circuit—permitting warrantless GPS monitoring until Jones was handed down, it is apparent the Baez investigators were acting in good faith when they made use of that technique."

If you read this blog often, you know that I write often about cases applying the Jones decision, and with a few exceptions, there is one basic rule - courts in the Seventh, Eighth, and Ninth Circuits apply the Davis good faith rule to pre-Jones GPS use, while courts outside of the those circuits do not do so because they did not have binding precedent at the time. As one Kentucky court noted, allowing the use of nonbinding authority to support a good faith argument would allow officers to "beg forgiveness rather than ask permission in ambiguous situations involving ... basic civil rights." (United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. 2012) (read more here)).

Regardless of all of the existing cases, the Baez court decided to create its own Davis interpretation, finding that the Supreme Court never intended Davis to be so "static". The judge notes he was only able to find one post-Jones GPS case in a circuit that did not have binding precedent. Here are a some more:

• United States v. Rosas-Illescas
• United States v. Lee
• United States v. Shelburne
• United States v. Lujan 

In the case that was discovered (United States v. Katzin, 2012 U.S. Dist. LEXIS 65677 (E.D. Pa.)), the judge distinguished it because the GPS device in Katzin was placed after the decision in Maynard, creating doubt as to whether a warrant was needed. The judge reasoned that law enforcement should be encouraged to rely on good faith so as not to make them "unduly cautious in pursuing investigatory initiatives." Further, "[a] rigorous and realistic cost-benefit analysis recognizes that there is no meaningful deterrence value to be gained" by discouraging law enforcement from acting on non-binding precedent.