In State v. Allen, 2013 Ohio 434 (Ohio Ct. App 2013), the Ohio Court of Appeals reversed and remanded a conviction after trial counsel failed to make a motion to suppress evidence derived from the use of a GPS device on the defendant's car.
The GPS device was used for a period of two days. At trial, defense counsel failed to make a motion to suppress, and the defendant appealed arguing ineffective assistance of counsel. Finding that "trial counsel had an obligation to raise the GPS issue in a motion to suppress all evidentiary items obtained by the police officers," the court found that the defense counsel's performance "fell below an objective standard of reasonableness."
As to whether or not the outcome would have been different, the court found that there was a reasonable probability of a different outcome. The appellate court ruled that good faith did not save the search because there was no binding appellate legal precedent on the GPS issue. Further, despite an argument to the contrary by the state, the court held that the evidence could not have been acquired through inevitable discovery.
Thus, the case was reversed and remanded and trial counsel ordered to file a motion to suppress.
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