OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception

In State v. Johnson, 2013-Ohio-4865 (App. Ct. Nov. 4, 2013), the Twelfth Appellate District of Ohio upheld the warrantless GPS tracking (pre-Jones) of a defendant's vehicle by construing the Davis good faith exception widely. The court held that the absence of binding appellate precedent in Ohio authorizing warrantless GPS tracking was not outcome determinative; cases construing Davis narrowly typically hold the exact opposite (under the theory that there is no rational basis for good faith without primary law backing up the actions of law enforcement, even if the legal basis for the good faith is later overturned).

Instead, to determine if the good faith exception applied, the court analyzed the state of GPS tracking law at the time the tracker was placed (the court noted there wasn't much law except the antiquated beeper cases - Knotts and Karo, plus non-binding, but jurisdictionally related 7th Circuit precedent), as well as statements by law enforcement indicating common practices and understandings regarding the use of such technology. The court noted that by analyzing Davis this way, it was adopting a case-by-case, factual approach (which isn't novel - other courts have also tackled the issue similarly).

After addressing the facts of the case and surveying the law (or lack thereof) in Ohio at the time, the court found that the good faith exception still applied because the Sheriff's office had not "acted with a 'deliberate,' 'reckless,' or 'grossly negligent' disregard for [the defendant's] Fourth Amendment rights." The quoted language, which the court applies in a totality of the circumstances/balancing approach, is taken directly from the Davis opinion (however the Supreme Court never adopted this standard, so its use here is somewhat tenuous).

As Orin Kerr noted after the recent Katzin decision, courts faced with pre-Jones GPS tracking will continue to disagree about the scope of the good faith exception; most notably when no binding appellate precedent exists. I, like Orin, am no fan of the good faith exception but I can swallow opinions upholding warrantless GPS tracking when appellate precedent exists. There is a convincing argument for this view because law enforcement isn't charged with mentally adjudicating constitutional issues before proceeding with tactics to catch criminals that have authorization in the jurisdiction.

However, a wide view of Davis (that does not turn on binding precedent) negates, to some degree, the force of the Fourth Amendment; namely, that fundamental protections of the Constitution can be subverted if:
(1) we assume (irrationally, I believe) that law enforcement has extrapolated 1980's beeper cases to new technology before using it (as this opinion does);
(2) courts accept the argument that good faith can be based on anecdotal evidence (i.e., the officer's "belief that a warrant was unnecessary was not unfounded given the legal landscape that existed at the time the GPS device"; the court reaches this conclusion from the officer's testimony that "it was kind of common knowledge among other drug units or talking to other drug units that as long as the GPS is not hard wired, as long as it is placed on - - in a public area, removed in a public area, it is basically a tool or an extension of surveillance");
(3) we have faith that judgments made without primary law or judicial approval are respective of rights if an officer acts only after "consulting with fellow officers, other law enforcement agencies, and a prosecutor"; and
(4) we can accept a "free-floating culpability requirement" (as Orin Kerr describes it) that almost assures that the good faith exception will nearly swallow the rule.

I think (4) is the most troubling because I can't conjure a situation (other than a crazy law school hypo) where a court might find "'deliberate,' 'reckless,' or 'grossly negligent' disregard for...Fourth Amendment rights" in the absence of binding appellate precedent.