Ohio appellate court affirms motion to suppress regarding GPS evidence

The Court of Appeals of Ohio recently held that in the absence of a binding precedent, evidence obtained as a result of an improperly used GPS device should not be allowed in court under the Davis good faith rule. State v. Allen, 2013 Ohio 4188 (Ohio Ct. App. 2013).

Since the decision in United States v. Jones, the most debated GPS-related issue has been what to do in situations where a GPS device was used prior to the Supreme Court's decision without a search warrant in the absence of binding precedent. Some courts have held that the overwhelming trend was for there to be no warrant requirement, allowing the evidence to be used under the Davis good faith rule.

Other courts, such as the Court of Appeals of Ohio in Allen, have held that in the absence of binding law on the issue, the evidence cannot be used at trial.

[A]lthough the State urges an opposing view, we join with the Second and Eleventh Districts, who have now spoken on the issue, to underscore that the good-faith exception to the exclusionary rule is not available if there was no binding precedent in the jurisdiction. Thus, we decline to adopt the position the State urges that we broadly interpret Davis to allow an exception when non-binding precedence from other jurisdictions exist.

The state had argued that the detectives acted in good faith by asking prosecutors if a warrant was necessary. However, the court found that to be insufficient in order to hold that the defendant's Fourth Amendment rights had not been violated.

It has not been lost on this court that in addition to not obtaining a warrant prior to attaching the GPS tracking device to Allen's vehicle, the Lyndhurst detectives crossed into another jurisdiction by going into another county, under the cover of night, and entered a gated community to surreptitiously attach the device at issue. Thus, had a reckless wanton analysis been necessary, instead of Davis's application in the wake of Jones, it is arguably that the State's good-faith argument would have been tarnished by the procedure the Lyndhurst detectives employed to attach the GPS tracking device to Allen's vehicle.

Thus, the trial court's grant of the motion to suppress was affirmed.