11th Cir. upholds pre-Jones warrantless GPS under good faith exception; precedent was 1981 beeper case

Another circuit court (the 11th) has jumped on the good faith exception bandwagon and upheld pre-Jones warrantless GPS use, finding that law enforcement reasonably relied on "binding" precedent at the time the GPS tracker was installed. The case is United States v. Ransfer, __ F.3d __ (11th Cir. 2014).

--Note: While Ransfer was pending, the 11th Cir. decided United States v. Smith, __ F.3d__ (11th Cir. 2013), which involved Ransfer's co-defendants. The court upheld warrantless GPS under the good faith exception in that case, as well, with a much more detailed explanation.

The "binding precedent" the Ransfer court cites to justify warrantless GPS tracking is United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc) (when the 11th Cir. was created in 1981, it incorporated 5th Cir. precedent). The court also relied on United States v. Andres, 703 F.3d 828 (5th Cir. 2013), a similar warrantless GPS case holding that police reliance on Michael was reasonable (and thus the good faith exception applied). As noted by the Ransfer court:

The Fifth Circuit recently held police could rely on Michael “[d]espite any
possible technological differences between a 1981 ‘beeper’ and the GPS device
used in this case, [because] the functionality is sufficiently similar that the agents’
reliance on Michael to install a GPS device on the truck, in light of the reasonable
suspicion of drug trafficking, was objectively reasonable.” United States v. Andres,
703 F.3d 828, 835 (5th Cir. 2013) cert. denied, 133 S. Ct. 2814 (2013). We agree
with the Fifth Circuit that Michael was clear, binding precedent that holds the
electronic tracking of a vehicle without a warrant does not violate the Fourth
Amendment, particularly where officers had reasonable suspicion the vehicle was
involved in criminal activity.

The 11th Circuit distinguished Katzin -- the recent 3rd Cir. case rejecting a good faith exception argument (see my post: Third Circuit: Warrant required for GPS tracking (Katzin); answers what Sup. Ct. reserved in Jones) -- by pointing to the police's limited use of the GPS tracker. Namely, "the GPS tracker was not used to trace the movements of Defendants. The tracking device was not used until after an armed robbery was committed and the vehicle was used to flee the scene. Then the GPS tracking device was used for a very brief period of time after the robbery to pinpoint the location of the vehicle and to dispatch police to arrest Defendants..." As I see it, the court is stating that the way GPS tracking was used here was more analogous to tracking via beeper than extended electronic surveillance; therefore, the court notes:

the technological distinctions the Third Circuit found relevant in Katzin do not apply to the facts of this case: 'Unlike GPS trackers, beepers require that the police expend resources – time and manpower – to physically follow a target vehicle.' Katzin, 2013 WL 5716367 at *6. That is exactly what occurred in this case.

Of course, I am not surprised at the outcome, given that most other circuits have held similarly. However, I think the court's attempt to distinguish Katzin is clumsy and logically questionable. While I agree that the GPS tracker was used very minimally here, it still permitted the police to pinpoint the car without expending resources (i.e. having to follow the car); that is quite different than Knotts or Michael where police had to be in range of the beeper's radio signal and thus had to surveil to some extent. Katzin ("GPS technology must be distinguished from the more primitive tracking devices of yesteryear such as 'beepers.' Beepers are nothing more than 'radio transmitter[s], usually battery operated, which emit[]  periodic signals that can be picked up by a radio receiver.' United States v. Knotts, 460 U.S. 276, 277, 103 S. Ct. 1081, 75 L. Ed. 2d 55 (1983). In contrast to GPS trackers, beepers do not independently ascertain their location — they only broadcast a signal that the police can then follow via a corresponding receiver. Moreover, beeper signals are range-limited: if the police move far enough away from the beeper, they will be unable to receive the signal that the unit broadcasts. At bottom, then, beepers are mere aids for police officers already performing surveillance of a target vehicle.")

More fundamentally, though, I reiterate my distaste for outcomes like this that shift the Supreme Court's Davis/Leon opinions from requiring good faith to something more akin to blind faith. Many of these cases give a whiff of backward reasoning coupled with deference to police; to me, the constitutional protections of the Fourth Amendment should take precedence.

For example, to buy the good faith argument, here, you have to accept the following:

1. That police were aware of the Michael precedent from 1981 at the time of the GPS installation
2. That police knew 5th Circuit precedent was binding because it was incorporated by the 11th in 1981
3. That "Michael articulated clear, binding precedent that installation of a device permitting electronic surveillance of a vehicle does not violate the Fourth Amendment" Ransfer.
4. That Michael referred to a beeper as an electronic tracking device and it is commonly understood that "a GPS device is an 'electronic tracking device'"; thus, arguing a difference in kind between beepers and GPS trackers makes "too fine a distinction." Smith, __ F.3d __ (11th Cir. 2013) (slip op. at 20).
5. That the Michael beeper and Ransfer GPS are technologically analogous, as well, notwithstanding that "the precise technological capabilities of the beeper were not explained in the [Michael] opinion." Andres, slip op. at 10.
6. That when police installed the GPS tracker without a warrant they "'followed the Eleventh Circuit’s . . . precedent to the letter.'" Smith.

Side Note: With regard to the actual capabilities of the beeper in Michael, I went back to the panel decision of and it seems that the beeper was merely used to aid in visual surveillance of the van (i.e. to allow police to stay farther away) and not to track it somewhere without any effort at all. See United States v. Michael, 622 F.2d 744 (5th Cir. 1980) ("The warehouse was located four days after installation of the beeper through following Michael's van with [the beeper's] aid."). It seems odd, then, for the court in Smith to assert that an argument that beepers and GPS trackers are not functionally similar draws "too fine a distinction." The law has an open texture, to be sure, but distinctions must be made and analogies must have limits when technology is involved - the much maligned "tiny constable" in Jones epitomizes this point.

With that in mind, I don't know if I'm willing to believe all six arguments/premises above and conclude that the police in Ransfer were (using the language from Davis v. United States, 131 S. Ct. 2419 (2011)) "specifically authorized" by "unequivocal" precedent (as opposed to "interpret[ing] ambiguous precedent," a situation where the good faith exception does not apply), to place a GPS tracker on the defendant's car.

My main point is that the good faith exception is worthwhile when there is actually clear, binding precedent. Once you remove clarity (as is the case here), you begin making assumptions about individual knowledge, intent, logical extrapolation, analytical thinking, and various other mental processes. The end result is judicial deference to law enforcement at the expense of subverting constitutional protections.

This is especially true in cases where the good faith exception has been applied applied despite any appellate precedent authorizing the police activity in question. See, e.g., OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception.

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Featured Paper: The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones

David J. Twombly, The Good-Faith Exception and Unsettled Law: A Study of GPS Tracking Cases After United States v. Jones, 74 Ohio St. L.J. 807 (2013). (J.D. expected '14, Ohio State). 

A key quote (and, one I agree with):

Setting aside the policy question of whether the exclusionary rule ought to stand or fall, lower courts should not take it upon themselves to extend the good-faith exception to cases of police negligence....When the right case comes along, the Supreme Court can clarify whether everyday police negligence really deserves the benefit of the good-faith exception.

...the analysis suggested for the good-faith exception asks a different question: whether the law has clearly established the constitutionality of a particular police practice. Another way to ask the question is whether the law has clearly established a citizen’s lack of a constitutional right under certain circumstances. If the law puts the reasonable officer on notice that her action might be unconstitutional, she should refrain. Reasonable uncertainty in this analysis will not provide the officer with good-faith protection, and suppression
of illegally obtained evidence will result. This standard keeps the good-faith exception tethered to an officer’s compliance with clear legal authority, but it does so in a way that allows law enforcement to adopt new investigative techniques without unreasonable delay.  

With respect to nonbinding precedent, this makes the suggested analysis a version of the broad-view approach described above, though it is consistent with the fundamental concerns of many narrow-view courts. In keeping with qualified immunity doctrine, the suggested analysis would allow courts to consider at least some nonbinding precedent as well as binding precedents not directly on point.

The abstract (from SSRN) is below:

The federal exclusionary rule generally prohibits the admission at trial of evidence procured by means of an unconstitutional search. But the rule admits of many exceptions, including an officer’s good-faith reliance on what reasonably appeared at the time of the search to be binding legal authority. The Supreme Court has applied the good-faith exception when police rely on warrants that turn out to be invalid because of magistrates’ errors or database inaccuracies, statutes that turn out to be unconstitutional, and, in the 2011 case of Davis v. United States, to “binding appellate precedent” later overturned. The Court has not determined, however, whether officers may act in good-faith reliance on nonbinding legal precedent. This question has recently arisen in a number of cases affected by the retroactive application of the rule announced in United States v. Jones that installing a GPS device on a vehicle constitutes a Fourth Amendment search.  

This Note analyzes the emerging disagreement among district courts over the reach of the good-faith exception. Courts have largely gone in one of two directions. Some read Davis narrowly as extending the good-faith exception only to an officer’s reliance on precedent binding in the jurisdiction at the time of the search. Others read Davis as authorizing a broad good-faith exception that would allow reliance on nonbinding precedent. The disagreement reflects great uncertainty in the lower courts as to the scope of the good-faith exception. Is the exception confined to the handful of situations the Supreme Court has recognized, or does it authorize lower courts to analyze the culpability of officers on a case-by-case basis and extend the exception to new facts? This Note argues that courts should adopt a modified standard from the Court’s qualified immunity cases, focusing on whether the constitutionality of an officer’s action has been clearly established. Such an analysis respects the fundamental rationale of the Court’s good-faith cases while retaining a robust role for the exclusionary rule.

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Fed Ct: A cell phone is not a container (i.e. conventional wardrobe), but Narnia (the magical wardrobe); police need a warrant to enter the portal

[[  The case is United States v. Mayo, No. 2:13-CR-48 (D. Vt. Nov. 6, 2013). (the link here is to the order denying suppression - more on that below).

Defendant's Motion to Suppress
Government's Opposition to MTS
Def. Response to Gov't Opposition to MTS
Def. Post-Suppression Hearing Memo
Gov't Post- Suppression Hearing Memo
Def.'s Supplemental Filing re: the Katzin decision ]]

****
A Vermont Federal District Court, by rejecting the idea that cell phones are "containers" under the Fourth Amendment, took a noticeable step away from the judicial propensity to force today's technology into property-based notions of the Fourth Amendment (see, e.g., the constable in Jones) in a misguided attempt to address emerging technology. While law will never keep pace with technology's march onward, and at times we must rely on the open texture of the law (see H.L.A. Hart), it is always refreshing to see the judiciary recognize that strained reverse engineering of anachronistic precedent must yield when the prevailing analogy becomes unmoored from the underlying legal issue. The court held that warrantless searches of cell phones, incident to arrest or under the automobile exception to the Fourth Amendment, were unconstitutional.

The court recognized, in reaching its holding, that the amount of information a cell phone could contain is limitless, taking into consideration that cell phones can now access/store information in the cloud (vastly expanding their on-board/physical storage capabilities); that alone, the court noted, was sufficient to distinguish a cell phone from a container. The end result:

the Court chooses to adopt a bright-line rule here: cell phones properly seized pursuant to the search-incident-to-arrest exception or the automobile exception cannot be searched without a warrant. Case-by-case analysis is not appropriate in this context, and the Government has not demonstrated any reason that such a warrant requirement would be unduly burdensome.  As a result, the Court hereby holds that law enforcement must obtain a warrant before performing such searches in the future.
…
…the Fourth Amendment requires that law enforcement obtain a warrant before performing a forensic search of lawfully seized cell phones.

The court's reasoning  (quoted at length because it is fascinating, both in a legal and literary sense):

The physical containers at issue in Robinson and Belton, and, indeed, even the cell phones in Finley, could not begin to approximate the amount of information that may be stored on a cell phone today. The Government states again and again in its briefings and at the hearings that the only difference between cell phones and conventional containers is that cell phones are “capable of storing large amounts of information.” Gov’t Post- Hr’g Mem. Mot. Suppress 13. The Government posits that this capability does not justify any differentiation between cell phones and traditional containers, but, in the Court’s view, this is precisely the factor that makes all the difference. The container analogy fundamentally fails to address the magnitude of modern cell phone storage capacity. Furthermore, it fails to consider the fact that many modern smartphones can access the Internet, opening up limitless additional storage. Because of these capabilities, modern cell phones can no longer fit comfortably within the Supreme Court’s original conception of a “container.” ... 

Several courts have recognized the storage capacity of modern cell phones as a basis for refusing to permit a warrantless search.  Most notably, the First Circuit recently determined that the search-incident-to-arrest doctrine “does not authorize the warrantless search of data on a cell phone seized from an arrestee’s person.” Wurie, 728 F.3d at 13. A significant concern underlying the First Circuit’s decision was the amount of information that would be accessible via a cell phone search. Id. at 9 (noting that individuals today “store much more personal information on their cell phones than could ever fit in a wallet, address book, briefcase, or any of the other traditional containers that the government has invoked”); see also Park, 2007 WL 1521573, at *9 (suppressing evidence from a warrantless search of defendant’s cell phone and analogizing modern cell phones to computers); State v. Smith, 920 N.E.2d 949, 954 (Ohio 2009) (“Even the more basic models of modern cell phones are capable of storing a wealth of digitized information wholly unlike any physical object found within a closed container. We thus hold that a cell phone is not a closed container for purposes of a Fourth Amendment analysis.”). 

The Government, in its continued attempt to downplay the quantity of information available on a cell phone, argues that the amount of data available should not matter because exceptions to the warrant requirement have been applied to large vehicles and motor homes. Gov’t Post-Hr’g Mem. 13 (citing California v. Carney, 471 U.S. 386, 388-89 (1985) (applying the automobile exception to a motor home); United States v. Gagnon, 373 F.3d 230, 240 (2d Cir. 2004) (tractor-trailer); United States v. Cruz, 834 F.2d 47 (2d Cir. 1987) (tractor-trailer truck)). This analogy demonstrates the Government’s misconstruction of the problem: the issue is not how large the container is, but that in the context of cell phones there is no limit to what the purported “container” may contain. See Schlossberg v. Solesbee, 844 F. Supp. 2d 1165, 1169 (D. Or. 2012) (finding that warrantless search of a digital camera violated the Fourth Amendment in part because “the storage capability of an electronic device is not limited by physical size as a container is”). Because modern cell phones can connect to the Internet, their storage capacity is nearly infinite. A tractor-trailer may be much larger than a sedan, but it still has tangible confines. A cell phone, by contrast, has no defined boundaries. Thus, allowing warrantless searches of cell phones pursuant to the search-incident-to-arrest exception would provide law enforcement with a giant exception to the warrant requirement without any limiting principles. 

Consider, for purposes of illustration, C.S. Lewis’s famous wardrobe. See C.S. Lewis, The Lion, the Witch, and the Wardrobe (1950). There is no question that the search-incident-to-arrest doctrine extends to a conventional wardrobe (in the unlikely event that one is found in a vehicle or on an arrestee). While this would be a search much more intrusive than Robinson’s cigarette pack, it still fits within the container doctrine because it has easily discernible limits: the container is large, but it is contained. Contrast this with the eponymous cabinetry in The Lion, the Witch, and the Wardrobe. Because the magical wardrobe is also a container, the Government would argue that it also fits within Robinson and Belton. However, this particular wardrobe also serves a second function. It opens up to another world, and because of this, it ceases to be merely a container—it is also a portal. Today’s cell phones, with their capacity to reach the Internet, the cloud, and to store millions of documents and photographs, can no longer analogize to a run- of-the-mill wardrobe. Instead, they are also a portal: a portal to the vast cosmos of the Internet. ... If the container rule were to apply to such a portal, a container search of Lewis’s wardrobe would extend to all of Narnia. But where a physical object is a portal to another world, there is a critical difference between a search of the object and a search of the worlds “contained” within the object. 

Thus, it is simply inappropriate to analogize cell phones to cigarette packs, purses, and address books; the more apt comparison is to computers. . . . Courts have consistently found analogies between computers and conventional containers to be problematic. For example, the Tenth Circuit found that “analogies to closed containers or file cabinets may lead courts to ‘oversimplify a complex area of Fourth Amendment doctrines and ignore the realities of massive modern computer storage.’” United States v. Carey, 172 F.3d 1268, 1275 (10th Cir. 1999) (quoting Raphael Winick, Searches and Seizures of Computers and Computer Data, 8 Harv. J.L. & Tech. 75, 104 (1994))(further citations omitted). 

The Government alternately seeks to justify the warrantless cell phone search as a container search under the automobile exception (as distinct from the vehicular prong of the search- incident-to-arrest doctrine). Gov’t Opp’n 7–8. However, the container rule under the automobile exception does not compel a different conclusion. The automobile exception allows law enforcement to search a vehicle and its contents that may conceal the objects of a search without a warrant so long as there is probable cause. Wyoming v. Houghton, 526 U.S. 295, 301 (1999) (quoting Ross, 456 U.S. at 823) (finding that the automobile exception “justifies the search of every part of the vehicle and its contents that may conceal the object of the search”). Several district courts have found that this exception extends to the warrantless search of a cell phone found in a vehicle searched with probable cause, so long as there is probable cause to believe the phone contained evidence of a crime. (citations omitted) 

These courts, like the courts in the search-incident-to- arrest context, all found that the searches were constitutional by analogizing cell phone searches to container searches. (citations omitted). Because the Court finds that this container analogy is no longer workable, the automobile exception does not require a different analysis. Instead, cell phones seized pursuant to the automobile exception, like those under the search-incident-to-arrest doctrine, are also properly analogized to computers, not containers. 

Not only have cell phones outgrown the original conception of a conventional container under the search-incident-to-arrest and automobile exceptions, but warrantless cell phone searches also can no longer be justified by the rationales underlying these exceptions. In Wurie, the First Circuit found that the Government could not demonstrate that warrantless cell phone searches are “ever necessary to protect arresting officers or preserve destructible evidence.” Wurie, 728 F.3d at 13 (citing Chimel, 395 U.S. at 763).
…
Wurie’s concern with “general evidence-gathering” is plainly applicable to this case. The search of Mayo’s cell phones was very invasive and performed without any limitations on law enforcement. Furthermore, it was not justified by the rationales underlying the search-incident-to-arrest and automobile exception doctrines. In fact, the Government has not demonstrated that such intrusive warrantless searches are ever necessary absent exigent circumstances. The search-incident-to- arrest exception “derives from interests in officer safety and evidence preservation.” Gant, 556 U.S. at 338 (citing Robinson, 414 U.S. at 230–234; Chimel, 395 U.S. at 763). Similarly, the automobile exception is rooted in the need to preserve evidence. See Ross, 456 U.S. at 806-07 (noting that in the automobile context, “immediate intrusion is necessary if police officers are to secure . . . illicit substance[s]”). Obviously, officer safety considerations are not implicated here. However, the Government has not demonstrated that such searches are necessary for evidence preservation either. 

In the past, courts have allowed warrantless cell phone searches because they found it necessary to allow police officers to search a cell phone based on the need to preserve evidence. (citations omitted). However, once law enforcement has seized and secured a cell phone, the risks regarding evidence preservation diminish. While courts have voiced concerns about the danger that internal data could be remotely erased, see Flores-Lopez, 670 F.3d at 807-08, there are simple methods available to protect a seized cell phone from remote modification. For example, in Vermont, it is state law enforcement’s practice to turn seized smartphones to “airplane” mode to disconnect them from outside interference, or to place them in a device that protects the phone from outside disruption. Suppression Hr’g Tr. 11:25-12:6, 13:14-20, Sept. 30, 2013. Thus, the Government has not shown that evidence preservation considerations justify the warrantless search of a seized cell phone.
Moreover, the Government has not demonstrated that it would be an undue hardship for federal law enforcement to obtain a warrant before performing forensic analysis on a cell phone. Indeed, this is already standard operating procedure for Vermont state law enforcement.  

…Thus, the Court finds that Mayo’s Fourth Amendment rights were violated when law enforcement searched his phone without a warrant.

For those who read the foregoing language as a slam dunk, I suggest you hold your applause. While the court announced a prophylactic rule for the future, the defendant here was torpedoed by the Good Faith Exception (despite an admirable attempt to avail himself of the recently published Katzin opinion from the Third Circuit - see more Cybercrime Review posts, here: Katzin Coverage). The court's reasoning on the Good Faith argument:

... the Third Circuit declined to apply the good faith exception where police relied on out-of- circuit precedent. Katzin, 2013 WL 5716367, at *16-17. Mayo cites Katzin to argue that the good faith exception should not apply in this case because there is no on-point authority from the Supreme Court or the Second Circuit. 

In Katzin, however, there was a significant circuit split on the issue in question. . . .Thus, law enforcement would not have been able to reasonably rely on out-of-circuit precedent, as there was no consensus. In other words, the law could easily be characterized as the type of “unsettled” law contemplated by Justice Sotomayor’s concurrence. In this case, by contrast, there was no circuit split as of March 2013; all of the circuits to address the issue had permitted such searches. While there was no binding Second Circuit authority, law enforcement acted reasonably in reliance on a general out-of-circuit consensus. Because Katzin is distinguishable from this case, the Court finds that application of the good faith exception remains appropriate.

I questioned this type of argument in a previous post (see here: OH App Ct: Warrantless GPS tracking OK despite no precedent; My take on the "good" left in the good faith exception), so I won't belabor the point further, except to say that I take issue with out-of-circuit precedent providing sufficient "cover" to allow Fourth Amendment protections (or, if you please, Fourth Amendment restrictions on permissible law enforcement methods) to rise or fall with assurances that law enforcement understood existing non-precedential law and decided to act based on such notions instead of shooting from the hip.

Again, stripped of all of the rhetoric, I find this opinion important because it advances a conception of technology I have repeatedly argued for - one that sheds physical analogies that are ill suited to cyberspace and analogies which, standing alone, call for further judicial acknowledgment, or legislative action to ameliorate the growing distance between law and technology.

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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.

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Court finds evidence obtained with GPS violates 4th Amend., does not fit good faith exception, but still not subject to suppression

In United States v. Taylor, 1:12-cr-00042 (S.D. Ind. 2013), the district court held that evidence obtained as a result of GPS tracking on a vehicle violated the Fourth Amendment and, while it is not subject to admission under the Davis good faith exception, the evidence may still be used because it was objectively reasonable for law enforcement to rely the judicial authorization.

Police sought to put a GPS device on the defendant's vehicle after receiving a tip that the defendant was in possession of cocaine. The judicial authorization from a state court gave law enforcement the ability to use GPS tracking for sixty days and allowed it to "be powered either by an internal battery or by connecting [the GPS Unit] to the battery of the vehicle." Using the tracking, police were able to find a storage unit rented by the defendant, and after a narcotics dog gave a positive indication, cocaine was found during a search of the unit.

The defendant was charged with possession of cocaine and filed a motion to suppress the evidence because, he argued, it was obtained in violation of his Fourth Amendment rights. The federal district court agreed, finding that under United States v. Jones, the use of the GPS device without a warrant was a violation of the Fourth Amendment.

In many recent cases, however, despite such a decision, courts have often held that the Davis good faith exception would still allow the evidence to be used., but that was not the case here. The district court held that Davis applies when suppression would not deter wrongful police conduct. Here, suppression would "create an incentive for law enforcement 'to err on the side of constitutional behavior.'"

Nonetheless, the court found that suppression was not appropriate because it was objectively reasonable for police to rely on the judicial authorization they had received.

Instead of unilaterally deciding that they could attach the GPS Unit to Mr. Taylor's car, law enforcement sought and received judicial authorization to use the GPS Unit from the Marion Superior Court. 

When, as here, law enforcement officers seek judicial authorization for their actions—a step that courts should not discourage—and they receive such authorization, it is objectively reasonable for them to believe that the authorized actions do “not violate the Fourth Amendment.”

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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.

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"Closer call": 1st Cir. upholds pre-Jones GPS tracking for 11 days under Good Faith exception

In United States v. Sparks, No. 11-1134 (1st Cir. March 26, 2013), the First Circuit upheld the denial of suppression of GPS tracking evidence which occurred over the course of eleven days, citing the Good Faith exception articulated in Davis. The GPS installation and tracking were pre-United States v. Jones.

There are a few interesting things about this holding:

1. Associate Justice (Ret.) Souter sat by designation for the case

2. The court relied on precedent from the 80s (Knotts) and 70s (Moore) to justify the holding; both cases involved beepers

3. The opinion stated the decision wasn't perfunctory, but was "certainly a closer question in this circuit than in those that had directly addressed the propriety of warrantless GPS tracking prior to Jones."

4. Orin Kerr's piece on the Volokh Conspiracy got a reference in a footnote (#1) - Does Fourth Amendment Standing Work Differently for Jones Trespass Searches, Traditional Katz Searches, and Long-term Katz Searches?

The court's reasoning, in short:

The closer question is whether Knotts clearly and expressly authorized the subsequent monitoring of the GPS tracker for eleven days. Like the officers in Knotts, the FBI agents in this case used an electronic tracking device to follow the movements of a car. But they did two things differently: they used a GPS unit instead of a beeper, and they tracked the car for eleven days instead of a number of hours. Do either of these differences place the agents' conduct beyond the scope of what Knotts clearly permitted? 

On this record, we think the fact that the device was a GPS tracker rather than a beeper does not render Knotts inapplicable. Certainly, a GPS tracker is more capable than a beeper, "but nothing inheres in the technology to take it out of Knotts's holding."

... 

That brings us to the duration of the monitoring: eleven days here, versus less than a day in Knotts-- not a trivial difference. But Knotts gave scant reason to think that the duration of the tracking in that case was material to the Court's reasoning. Rather, the Court appeared to apply a blanket rule that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another"; no such expectation attaches to information that is, like one's public movements, "voluntarily conveyed to anyone who wanted to look."460 U.S. at 281. Knotts did note that abusive "dragnet type" surveillance might be governed by "different constitutional principles," id. at 284, but there was no suggestion in the Knotts opinion that this rather brusque dismissal of the defendant's Orwellian warnings imposed a concrete temporal limitation on the case's apparently unqualified holding. Indeed, at the time of the search in this case, Knotts was widely and reasonably understood to stand for the proposition that the Fourth Amendment simply was not implicated by electronic surveillance of public automotive movements, because the latter was merely a more efficient "substitute . . . for an activity, namely following a car on a public street, that is unequivocally not a search within the meaning of the amendment."

Recognize that the court had to appeal to Knotts and Moore because conceding that those two cases do not allow prolonged GPS monitoring would require getting into the thornier argument of whether precedent outside the circuit (holding such monitoring was constitutionally sound) could be relied on by law enforcement and thus allow the Davis Good Faith exception argument.

Considering that most other courts have upheld pre-Jones GPS tracking under Davis, the holding isn't all together surprising. But, if you have spent a lot of time talking about the anachronism of law when it comes to technology, hearing GPS and "beeper" together again is worth the read (and the shudder). To quote Renee Hutchins, we are still "Tied up in Knotts."

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Case Prep (all briefs & materials): US v. Katzin - GPS case before Third Circuit on Tuesday 3/19/13

Tomorrow (3/19/13), the Third Circuit is set to hear oral arguments in US v. Katzin, No. 12-2548,  a GPS tracking case the government appealed after a federal district court ruled (post-Jones) that the good faith exception did not apply to the conduct in this case because, inter alia, there was no Third Circuit precedent allowing warrantless GPS tracking to begin with but merely a disagreement between other circuits.

First, for some background, Jeffrey has mentioned this case more than once. His relevant posts can be found here:

Government appeals GPS case to Third Circuit; groups file amicus arguing that warrant is required (about Katzin itself)

District court okays warrantless pre-Jones GPS use, holds that good faith rule doesn't require binding precedent (about United States v. Baez, another GPS tracking case where evidence was not suppressed; it includes a discussion of the Davis good faith rule as well as a paragraph on Katzin)

Second, here are some write-ups on the case itself from the media & amici:

From Wired (posted today, 3/18/13): Feds: No Warrant Needed to Track Your Car With a GPS Device
From the ACLU: ACLU in Federal Appeals Court Tuesday Arguing Against Warrantless GPS Tracking
From the EFF (authored by Hanni Fakhoury & Marcia Hoffman): Jones Meant What it Said: EFF Urges Court to Stop Warrantless GPS Tracking

Finally, here are all of the documents related to the case (for those who like to review all of the materials) in chronological order. This includes an updated version of the government's brief:

5/09/12 - E.D. PA Memorandum Granting Suppression of the GPS Evidence
10/25/12 - Brief for Appellee Harry Katzin
11/05/12 - Brief of Appellee Mark Katzin
11/13/12 - Amicus Brief from EFF, ACLU, ACLU PA Chapter, and Nat'l Assoc. of Criminal Defense Lawyers
12/03/12 - Reply Brief for Appellant United States of America

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