Kansas appellate court okays warrantless cell phone search during search incident to arrest

In State v. James, No. 106,083 (Kan. Ct. App. 2012), as a matter of first impression in the state, the Court of Appeals of Kansas held that officers may read an arrestee's text messages in a cell phone found on his person as part of a search incident to arrest.

The defendant had been pulled over for having a headlight out. The officer smelled alcohol and soon learned the defendant and his passenger had been making drinks and consuming alcohol while in the vehicle. A search of the car revealed marijuana, and the defendant suggested it may belong to his brother. He did not know his brother's phone number, but because he was in handcuffs, he "stuck out his hip" as a gesture to get the officer to obtain his phone and call his brother. Here's what happened next:

While removing the cell phone from James' pocket, the deputy asked "are there going to be any text messages on here relating to drug sales?" And James responded that there was nothing about drugs on his phone. 

Deputy Voigts proceeded to look at the cell phone in James' presence. In scrolling through James' text messages, the deputy found two incoming messages that caught his attention. On December 8, 2009, a person named Ash sent a text message to James' cell phone, which read: "U got green I will meet U somewhere." Another text message, sent on December 9, 2009, said, "Hey T-Ray this is Cotie. U got a 20?"

Never was the officer told he could not search the messages, and the phone did not require a password. The defendant was later charged with various drug crimes. The text messages were used as evidence at trial, and the defendant was convicted and sentenced  to 44 months in prison.

On appeal, he argued that the search violated his Fourth Amendment rights and that the use of the messages was improper under the rules of evidence.

The Court of Appeals found that the search of the cell phone for text messages "probative of criminal conduct ... was a valid search incident to a lawful arrest." Further, the court found unpersuasive the defendant's arguments that cell phones should be treated differently than other containers including Ohio's Smith v. State (finding that the search of cell phone requires a warrant) and Kansas's own State v. Rupnick (holding that the search of a computer hard drive requires a warrant). The state made a consent argument, but the court did not need to consider it.

Finally, the court found that the text messages were not inadmissible hearsay. The questions "U got green" and "U got a 20" were not "offered to prove the truth of the matter stated." The questions are "neither true nor false" and thus do not qualify as hearsay.

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New Mexico district court denies exclusionary rule for unconstitutional GPS use despite lack of precedent

In United States v. Aispuro-Haros, No. 11-2293 (D. N.M. 2012), the court ruled that pre-Jones use of a GPS device without a warrant was an unconstitutional search under Jones. However, despite a lack of precedent in the Tenth Circuit for the relevant time, the court held that the exclusionary rule does not apply.

The defendant is charged with crimes related to drug trafficking and filed to a motion to suppress due to law enforcement having tracked him with a GPS device without first obtaining a search warrant. The government conceded that the use of the device was unconstitutional, but argued that the exclusionary rule should not apply. The court agreed:

If the experienced, thoughtful, and knowledgeable jurists of the Seventh, Eighth, and Ninth Circuits did not know that the use of a GPS device on a vehicle constituted a warrantless search in violation of the Fourth Amendment, then it is not reasonable to assert that the officers involved in the underlying investigation in this case should have known that either.

The D.C. Circuit's decision in Maynard had already been released at the time of the use, but the court excused that on account of it being the minority view. Maynard was later affirmed by the Supreme Court in Jones.

As has been explained many times on this blog, this approach to the application of the exclusionary rule to GPS use is the minority. Most trial courts within the Seventh and Ninth Circuits have not applied the exclusionary rule because of existing precedent allowing the use, whereas most courts in other circuits have suppressed the evidence.

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Mass. trial court finds obtaining one day of CSLI without cause to violate the Mass. Constitution

In Commonwealth v. Wyatt, 30 Mass. L. Rep. 270 (Mass. Sup. Ct. 2012), the Superior Court of Massachusetts held that obtaining cell site location information (CSLI) without a showing of cause (the court did not specify if probable cause was a requirement) was a violation of the Massachusetts Constitution. As a result of this finding, the defendants' motions to suppress were granted.

As part of a murder investigation, law enforcement acquired nine 2703(d) orders covering five different cell phone companies and eighteen phone numbers seeking subscriber information and call records for a near two-month period and CSLI for one day. Officers later admitted they did not have probable cause to acquire this information. The four defendants filed a motion to suppress their historical CSLI .

The court began by discussing the similarities of cell phones and a GPS device, noting that "CSLI enables a cellular telephone to be treated as a de facto Global Positioning System (GPS) tracking device." As such, they conducted an evaluation of a state high court opinion in Connolly (holding that installation of a GPS device on a vehicle is a seizure) and the Supreme Court's opinion in Jones.

Next, the court applied the expectation of privacy test to the use of CSLI. Because "[i]t is unlikely that the average cellular telephone user knows that when he or she makes or receives a call or a text message, the service provider creates and maintains a record of the cellular telephone’s location," the defendants had a subjective expectation of privacy in the cell records.

As to an objective expectation of privacy, the court held:

Allowing the government to track our movements without evidence that the person whose CSLI is sought engaged in criminal activity compromises what it means to be a citizen of the United States of America free from arbitrary surveillance.... 

Allowing the government to track a citizen’s movement through CSLI, without requiring the government to show probable cause or even reasonable suspicion that the target is engaged in criminal activity is contrary to the very freedom we hold dear.

Thus, the defendant's motion to suppress their cell site location information was granted.

Cybercrime Review blogger Justin Webb contributed to this post.

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Highlighted Paper: "The Case Against Combating BitTorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits"

This month I'd like to highlight another Michigan Law Review article that is germane to this blog's focus. The article is: Sean B. Karunaratne, The Case Against Combating BitTorrent Piracy Through Mass John Doe Copyright Infringement Lawsuits, 111 Mich. L. Rev. 283 (2012).  I have seen much in the technology blog-o-sphere about this topic, typically highlighting some of the less than ethical tactics that these mass lawsuits engage in, but I can't remember seeing much in scholarly work on the subject.
That defendants may likely be successful arguing improper joinder or lack of personal jurisdiction is the thrust of the piece. The abstract is below:

Today, the most popular peer-to-peer file-sharing medium is the BitTorrent protocol. While BitTorrent itself is not illegal, many of its users unlawfully distribute copyrighted works. Some copyright holders enforce their rights by suing numerous infringing BitTorrent users in a single mass lawsuit. Because the copyright holder initially knows the putative defendants only by their IP addresses, it identifies the defendants anonymously in the complaint as John Does. The copyright holder then seeks a federal court's permission to engage in early discovery for the purpose of learning the identities behind the IP addresses. Once the plaintiff knows the identities of the John Does, it contacts them with a settlement demand. But often before such discovery is granted, the anonymous defendants have been improperly joined, and the lawsuit has been filed in a court that lacks personal jurisdiction over the defendants. This presents no problem to the plaintiff because the plaintiff does not intend for the lawsuit to go to trial. However, the defendants effectively have no choice but to succumb to the plaintiff's settlement demand because settling will be less costly than fighting the action. This Note argues that courts should not grant expedited discovery in such procedurally deficient lawsuits. To rein in these mass lawsuits, this Note argues that mass copyright infringement suits should meet certain minimum joinder and personal jurisdiction requirements before courts grant expedited discovery.

I think the strong-arm settlement tactics of these copyright litigation factories needs to be reigned in, especially in the case of pornographic works; the embarrassment of the consumer is often a boon to these outfits bordering on unjust enrichment. Copyright owners should have recourse for infringement, but not at the expense of cannibalizing individuals and legal rules in the process of doing so. Thankfully, there has been judicial push-back on these types of approaches.

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Sixth Circuit affirms restitution award against expert witness who morphed stock images into CP for jury exhibit

In Doe v. Boland, No. 11-4237 (6th Cir. 2012), the Sixth Circuit held that an expert witness who morphed images of children into child pornography in order to show the ease of such editing to a jury was guilty of possession of child pornography. As such, he was ordered to pay restitution of $300,000 to the victims.

The defendant had downloaded images of two children from a stock photo website and edited the images "to make it look like the children were engaged in sex acts" as part of his preparation for testimony at a child pornography trial. His actual intent was to show the jury how easily such images could be modified and to argue that the defendants on trial may not have known the pornographic images they were viewing were actually child pornography.

After his presentation of the images, the FBI began an investigation, and he was charged with possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). The district court held that he did not have to create these morphed images to prove his point and that his actions were not protected by the Constitution or statute. Thus, damages of $150,000 were awarded to each of the two victims. (Read our earlier post about this decision here.)

The Sixth Circuit first held that the § 2252A(f) action for damages allows a court to award "compensatory and punitive damages" and does not require an "exact amount of ... damages." Therefore, the award of $300,000 was permissible.

Secondly, the production of the images was not protected by the First Amendment, and it was immaterial that the images were "never displayed ... outside of a courtroom" or transmitted electronically. "The creation and initial publication of the images itself harmed ... [the children], and that is enough to remove Boland’s actions from the protections of the First Amendment."

In conclusion, the court wrote:

This $300,000 award undoubtedly amounts to tough medicine for Boland.  When he created morphed images, he intended to help criminal defendants, not harm innocent children.  Yet his actions did harm children, and Congress has shown that it “means business” in addressing this problem by creating sizeable damages awards for victims of this conduct.... Nor was this Boland’s only option for trying to help his clients.  He could have shown the difficulty of distinguishing real pornography from virtual images by transforming the face of an adult onto another, or inserting a child’s image into an innocent scene.  If he felt compelled to make his point with pornography, he could have used images of adults or virtual children.  Instead, he
chose an option Congress explicitly forbade: morphed images of real children in sexually explicit scenes.  That choice was not protected by the First Amendment, and the children therefore are entitled to the relief Congress offered them.

Thus, the trial court's decision was affirmed. The case was first heard by the Sixth Circuit in 2011. In that earlier decision, the appeals court reversed and remanded a trial court decision holding that Congress intended for there to be an exception for expert witnesses.

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Hushmail provides unencrypted e-mails to feds; practice raises interesting legal questions

In a Second Circuit case (United States v. Gonzalez, 686 F.3d 122 (2d Cir. 2012)) released earlier this year, evidence was presented at trial that had been e-mailed through Hushmail, a secure e-mail service used by "millions of people and thousands of businesses." Hushmail's website claims that they "encrypt your message automatically before it is sent, and then restore it back to its original form when the recipient reads it."

The issue that immediately came to my mind was the fact that Hushmail provided not only the communications but they were able to unencrypt them first. Here's the court's description of the evidence:

The government also introduced into evidence numerous emails sent from the address "biotechresearch@hush.com" — which Gonzalez admitted was his — through "Hushmail," an encrypted email service provider that encoded email messages, permitting them to be accessed and read only by someone who had the encryption key. The emails introduced at trial by the government, decoded by Hushmail, included the following..."

This isn't the first time Hushmail has done this. In 2007, Threat Level explained the security issues and how Hushmail is able to provide an unencrypted copy of a user's e-mails.

In recent years, several courts have evaluated whether the government can force an individual to provide an encryption key for electronic files. Courts have ruled on both sides of this popular Fifth Amendment issue. Perhaps an interesting extension of that debate is whether a person's agent (that word choice may be a stretch) - their e-mail provider - can be forced to provide an unencrypted copy of e-mails or whether they may only provide the scrambled versions. Another interesting issue is how we would define communications required to be disclosed under provisions of the Stored Communications Act.

Hush Communications' CEO, Ben Cutler, responded to my inquiry about their disclosure policy:

Our policy is to only release user information if we receive an order enforceable in British Columbia Canada requiring that we do so. British Columbia, Canada is the jurisdiction where our servers and operations are located. The order must be for a specific user account. In the case where authorities in the US are seeking information on one of our users they would have to make an MLAT request to the Canadian Department of Justice, which if successful would result in an enforceable order being issued here in Canada.

As may be obvious, I don't really claim to have answers to these issues, but I feel they are interesting to think about. Please feel free to comment below with your thoughts.

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District court holds reasonable suspicion satisfies Jones, good faith exception requires binding precedent

In United States v. Robinson, No. S2-4:11CR00361 (E.D. Mo. 2012), the district court held that the good faith exception should not apply to GPS evidence where there was no binding precedent but also held that reasonable suspicion - rather than probable cause - is sufficient to satisfy the Supreme Court's decision in United States v. Jones.

Law enforcement had conducted surveillance on the defendant over a month and a half period. That, along with interviews they had conducted, gave them "reasonable suspicion," according to the district court judge. After the visual surveillance appeared to corroborate the interviews concerning the alleged fraudulent activity, a GPS device was installed on the defendant's car in early 2010 where it recorded data for nearly two months.

At the motion to suppress hearing, the parties made the normal arguments. The defendant argued the data should be suppressed because no warrant had been obtained, violating the Fourth Amendment according to Jones. The prosecution argued that the Davis good faith exception should apply and save the evidence from suppression. The court, interestingly, disagreed as to both.

Good Faith Exception
In its analysis of the good faith issue, the court first examined precedent as of the installation of the device, looking at Knotts (1983 beeper case), Garcia (Seventh Circuit case finding that GPS use was not a Fourth Amendment event), and Pineda-Moreno (Ninth Circuit case holding the same). Maynard (the DC Circuit case which held that it was a search and was ultimately affirmed by the Supreme Court in the restyled name of United States v. Jones) was handed down in August - nearly five months after the GPS device in the present case had stopped tracking the defendant.

The court acknowledged that most courts in the Seventh and Ninth Circuits apply the good faith exception where GPS has been used prior to Jones, but the more challenging issue is what happens outside of those circuits. Ultimately, the judge held that the Davis good faith rule should not apply here, finding that it only protects law enforcement action where there was binding precedent.

The language of Davis is narrow, and quite specific. In discussing whether the police were culpable, the majority in Davis noted "the officers' conduct was in strict compliance with then-binding Circuit law." Davis, at 2428-29. The opinion repeatedly references "binding" authority, see, e.g., id., at 2428, 2429, 2431, 2434; the majority did not reference "generally accepted authority." Indeed, the majority specifically noted that the situation might be different with "defendants in jurisdictions in which the question remains open."

Also discussed was the need for caution when dealing with technology. "[O]ne may not simply assume that prior case law authorizes conduct when it deals with different technology, is perhaps installed in a different fashion, or permits a different degree of intrusion," reasoned the court.

Reasonable Suspicion
Nonetheless, the court, relying on binding precedent in Marquez, found that the GPS evidence would not be suppressed because reasonable suspicion existed, making the search reasonable. In Marquez, the Eighth Circuit held that GPS installation on a car parked in a public place with reasonable suspicion for a reasonable period of time does not require a warrant.

The defendant argued that Marquez had been abrogated by the Supreme Court's decision in Jones. The court, however, disagreed as it determined that Jones did not specify what level of suspicion is necessary for use of a GPS device. As Marquez had done so and determined that reasonable suspicion was sufficient, that decision was still good law.

Thus, the motion to suppress was denied because reasonable suspicion existed.

Thanks to Jed, a loyal reader, for pointing out this case to us.

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Federal court holds police exceed scope of warrant by intentionally searching for child porn during ID theft case

In United States v. Schlingloff, 2012 U.S. Dist. LEXIS 157272 (C.D. Ill. Oct. 24, 2012), Judge Shadid held that use of Forensic Toolkit's (FTK) Known File Filter (KFF) to alert on child pornography files was outside the scope of a warrant issued to look for evidence of identity theft.

The defendant in this case lived at a location that was searched pursuant to a valid warrant; the warrant was issued to find evidence of identity theft. During the search of the residence, multiple media devices and computers were retrieved, including a computer and external storage device belonging to the defendant. When the items were sent for forensic analysis, the computer forensic analyst did a search of the devices not only for identity theft (likely image and string searches), but also for child pornography using FTK's KFF option.

A short explanation on KFF. To make forensic analysis easier, files that are known to be valid (system files, DLLs, etc.) are hashed, and those hash values are compared against a disk image to exclude known valid files from further forensic analysis. Conversely, known malicious or illegal files are also hashed, and if those files are found on the computer, the KFF alerts on those hashes, indicating to the investigator that those files should definitely be investigated further. Per FTK's own literature, the KFF can be pared to certain file lists (i.e. hashes of child porn files, virus-related files, etc.) relevant to the current investigation. Additionally, the forensic investigator does not have to use KFF - it is merely an option.

Here, the investigator chose to use the KFF, and within its alerts were hashes of child pornography. While searching the defendant's computer, child porn alerts generated by the KFF showed up. The analyst took the next step and (to confirm the files were in fact CP), opened a few to confirm the results.  As the court stated:

The search here did not end with flagging the child pornography files during preprocessing, however. After the KFF alerted to the two files in question, [the agent] believed that he recognized them to be part of the "Vicky" series of child pornography based on their hash values and his experience. Rather than stopping at this point to obtain a warrant to search for images of child pornography, [the agent] briefly opened each file in order to confirm his suspicions before stopping any further processing. . . . 

Based on this evidence, the defendant was charged with possession of child pornography. The defendant filed a motion to suppress the evidence, arguing that it was outside the scope of the warrant. The initial motion was denied because the court was under the impression that KFF was an all-or-nothing option. Upon learning that the KFF can be turned on and off in a motion to reconsider, the court granted the motion to suppress.

The court justified its decision as follows:

The Court of Appeals has recognized that where the KFF alert flags a file as child pornography, an agent could be acting outside the scope of the warrant if he opens the flagged files without obtaining a new warrant. . . .

By opening the "Vicky" files flagged by the KFF alert, McNamee knew or should have known that those files would be outside the scope of the warrant to search for evidence of passport fraud or identity theft, particularly as the warrant did not specifically refer to evidence found in video files. . . .

. . . the Court finds that Agent McNamee took an affirmative additional step to enable the KFF alerts that would identify known child pornography files as part of his search for evidence of passport fraud or identity theft. In a case where the professed subject matter sought in the search bore no resemblance to child pornography, it is difficult to construe this as anything other than a deliberate expansion of the scope of the warrant, or at the very least, an affirmative step that effectively did so. 

Holding that use of a method like KFF to search a computer which was not suspected of child pornography at the outset, is the correct outcome. As the court said, that was an affirmative step. The government argued that the evidence would have inevitably been found (which is likely true if they had just done a straight image search and ran through those images), but the court was unpersuaded by that argument, stating that it missed the point. And to the extent that the government intertwined the inevitability of file discovery to the plain view doctine, the court was still unpersuaded. The court stated that  the KFF had placed the officer somewhere he wasn't supposed to be (by bringing the files directly to his attention) and that is different in kind from other cases where CP found in the course of an investigation is allowed because it is discovered inadvertently - often under plain view doctrine. The court noted that "the suggestion that the agent inadvertently came across a file when that same agent specifically set up the situation to find and highlight this type of file by 'clicking' to enable the KFF alert is untenable."

The court summed up the holding stating that each step in the process may not have violated the Fourth Amendment, but (1) the knowing use of the KFF with CP values, (2) the alerts on the CP,  and (3) the choice to open the files to confirm their contents combined to lead to only one permissible outcome: suppression.

The court correctly noted that this problem is not going away, and that evidence from computers must be dealt with differently because of its permanence, and the unlikeliness of a staleness argument. The courts offered that:

Given the ever increasing state of technology and consequently, technology related crimes, the Court finds that this issue is not going to go away, and in fact, will likely become more prevalent and finely contoured. Digital images or files can be located nearly anywhere on a computer and "may be manipulated to hide their true contents." . . . Accordingly, more comprehensive and systematic searches have been found to be reasonable. . . . Nevertheless, it is also important to note that there is normally no fear of degradation or dissipation of evidence or a rapidly evolving situation requiring the need to "shoot from the hip" in examining seized computer files without a proper warrant. . . . In fact, Judge Posner recently noted that the doctrine of staleness has taken on new contours as a result of technological advancements and the importance of employing a "realistic understanding of modern computer technology" when evaluating Fourth Amendment challenges to computer searches.

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Recent articles related to technology and the law

Here are some recently published (or posted) articles I found on SSRN that you might enjoy reading. Feel free to e-mail me if you have suggestions for an upcoming list.

GPS / Jones

• The Missed Opportunity of United States v. Jones - Commercial Erosion of Fourth Amendment Protection in a Post - Google Earth World - Mary Leary (Catholic University)
• United States v. Jones: Fourth Amendment Applicability in the 21st Century - Thomas K. Clancy (University of Mississippi / West Virginia University)

Privacy

• 'eyePhones': A Fourth Amendment Inquiry into Mobile Iris Scanning - Christopher Rutledge Jones (University of South Carolina)

Hacking / Cyber Attacks

• Skills and Trust: A Tour Inside the Hard Drives of Computer Hackers - Benoit Dupont (University of Montreal)
• Cyber Deterrence - Eric Talbot Jensen (Brigham Young University)

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GAO produces report on cell location data protection

The Government Accountability Office recently released a report entitled "Mobile Device Location Data: Additional Federal Actions Could Help Protect Consumer Privacy." It covers:

(1) how mobile industry companies collect location data, why they use and share these data, and how this affects consumers;
(2) the types of actions private sector entities have taken to protect consumers’ privacy and ensure security of location data; and
(3) the actions federal agencies have taken to protect consumer privacy and what additional federal efforts, if any, are needed.

The GAO recommends that mobile industry companies adopt a variety of practices, enforce their policies consistently, and implement certain safeguards to protect the data. Additionally, employees must be held accountable for policy breaches. Action was also recommended for the FTC, FCC, and Department of Commerce.

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Forget the theoretical - what hacking back looks like in the real world

There have been many posts and links on Cybercrime Review discussing the legal implications of hacking back - see my collection of those posts, here: Hacking Back - are you authorized?  A discussion of whether it's an invitation to federal prison or a justified reaction/strategy?. What is lost in these discussions is a strong foothold in real world examples. Well, now we have a recent, real life "hack back" to look upon - the Republic of Georgia's counter-espionage hack of a supposed Russian perpetrator who was propagating malware for the purposes of espionage against Georgia. This is a must read.

Here's the story from IT world: Irked by cyberspying, Georgia outs Russia-based hacker -- with photos

And here is the Georgia CERT report: CYBER ESPIONAGE -- Against Georgian Government - (Georbot Botnet)

A quick summary for those who don't want to follow the links -- Georgia had been getting attacked and mined for information from a botnet, and this included infiltration of government entities. Fed up with this, the Georgian government decided to take action:  (taken from a ZDNET article about the same):

In order to lay the bait after the attacks increased in severity over the course of 2011, Georgia allowed a computer to be infected on purpose. Placing a ZIP archive named "Georgian-Nato Agreement," once opened, the investigator's own malware was installed. 

While the alleged hacker was being photographed, his computer was rapidly mined for sensitive documents. One Word document contained instructions on who and how to hack particular targets; as well as website registration data linked to an address within Russia.

As mentioned above, there are pictures of the Russian hacker in the report - part of the malware the hacker had been propagating (against Georgia) enabled webcams and took photographs. Georgia CERT experienced sweet revenge when this functionality was turned on the hacker himself.

Does this example change your opinion of "hacking back?"

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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.

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