District court okays pre-Jones GPS use despite lack of binding precedent

In United States v. Oladosu, No. 10-056-01 S. (D.R.I. 2012), the Rhode Island federal district court held that pre-Jones use of a GPS device to track the defendant is saved by the Davis good faith rule despite a lack of binding precedent in the jurisdiction.

State police had installed a GPS device on the defendant's car and did not obtain a warrant prior to doing so. When asked why, the detective responded:

I'm not aware of any rules, regulations or laws that require us to obtain a search warrant prior to applying this GPS device. It's not a policy within the police department, of the North Providence Police Department or the Rhode Island State Police HIDTA task force to obtain a search warrant prior to putting an all-in-one device on.

The detective later replaced the batteries in the device at night while the car was parked in the defendant's driveway. The GPS device was on the defendant's vehicle from February 12, 2010 until March 30, 2010.

In many of these cases, courts have applied the Davis good faith rule only where binding precedent specifically allowed the use of GPS devices without a warrant. That was not the case in Rhode Island at the time the device was installed, and thus many courts would suppress the evidence. Here, however, the court held that the Davis rule is not quite so rigid.

If the agents in this case had placed the GPS after both Maynard and Judge Kozinksi's dissent ... the outcome here may have been different, and this Court might have concluded as [other] ... courts did, that the good faith exception should not apply. This is because, after Maynard and the Kozinski dissent, the law was unsettled and law enforcement officials in circuits where no binding precedent was present were arguably on notice that use of a GPS device may require a warrant. In this situation, it might not have been objectively reasonable for law enforcement to rely on the decisions of the Seventh, Eighth, and Ninth Circuits. It could be that proceeding to use a warrantless GPS in the face of emerging uncertainty would be a "reckless[] or grossly negligent disregard for Fourth Amendment rights." ... 

Here, just as in Baez and Leon, however, the requisite "culpability" of law enforcement is simply not there. This "absence of police culpability," to use Davis's words, "dooms" Oladosu's claim. ... At the time Detective DiFilippo attached the GPS to Defendant Oladosu's car, the United States Supreme Court had sanctioned the use of beeper technology without a warrant, and two circuits had ruled, in what appeared to be a growing consensus, that the beeper precedent was analogous and applicable to GPS use. 

Thus, the motion to suppress the GPS data evidence was denied. A Massachusetts federal district court has also ruled along these same lines in Baez (referenced above).