Ohio state court forbids use of GPS evidence obtained without warrant; Florida district court holds otherwise

In State v. Henry, 2012 Ohio 4748 (Ohio Ct. App.), the court of appeals reversed and remanded the case because the GPS device had been installed without a search warrant. Ohio had no binding precedent on the issue, preventing a successful good faith argument by the government. In a recent Florida case, the district court upheld the use of the GPS evidence, finding that the Eleventh Circuit had binding precedent on the issue. United States v. Lewis, No. 12-60011-CR (S.D. Fla. 2012).

In Henry, the defendant had recently been released from prison and was known by police to have been involved in stealing cars from car dealerships. Upon the defendant being arrest for an outstanding traffic warrant, the officer went to the lot where the defendant's car had been towed to install a GPS device on the car, a vehicle which was not owned by the defendant. One night, the defendant was tracked to a convenience store and was seen unloading truck tires from the trunk of the car, and he was arrested.

At trial, the court overruled the defendant's attempt to suppress the GPS evidence (which was ordered prior to Jones), and he was convicted of receiving stolen property and possession of criminal tools.

On appeal, the Court of Appeals of Ohio reversed and remanded, finding that the motion to suppress should have been granted. No binding authority existed, and therefore there was no good faith reliance that would hold up under Davis. The court, interpreting Justice Alito's opinion in Davis, held:

[I]t is clear that the holding in that case, upon which the State relies in this case, has no application in a situation, like the one before us, where the jurisdiction in which the search was conducted has no binding judicial authority upholding the search.

As noted previously on this blog, most decisions outside the Seventh and Ninth Circuits, which had precedent authorizing warrantless use of GPS devices, require suppression after Jones. Courts in those circuits, however, typically apply the good faith exception under Davis and allow the evidence to be admitted.

One major exception to that general rule is one playing out in the old Fifth Circuit (today's Fifth and Eleventh Circuits). An en banc case from 1981 held that installation of a beeper on a car did not require law enforcement to first obtain a search warrant. The Lewis opinion applies this precedent to allow admission of the evidence under the Davis good faith. An Alabama district court has applied the same logic, but a Mississippi judge did not.

Related Case: In United States v. Robinson, No. S2-4:11CR00361AGF (E.D. Mo. 2012), the Eastern District of Missouri also refused to apply good faith to pre-Jones GPS use without a warrant. The motion to suppress was denied on other grounds, however.