Oral Argument Preview: Warrantless GPS Tracking Device, Revisited. State of Ohio v. Sudinia Johnson.

Update: On November 13, 2014 the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read the analysis of the oral argument here.

On September 24, 2014, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Sudinia Johnson, 2013-1973. At issue in this case is whether, in the absence of binding appellate precedent, the Davis good faith exception to the exclusionary rule can apply to prevent the suppression of evidence when the officer who committed the Fourth Amendment violation reasonably believed the search was legal. The case will be argued at Ravenna High School in Portage County, as part of the court’s off-site program. This is the second time this case has been before the court.

Background

In October of 2008, a Butler County Deputy Sheriff received a tip from an informant that Sudinia Johnson, the appellant, was going to acquire a large amount of cocaine. The informant did not provide any specific details but did say that a trip to Chicago might be involved.  Based upon the tip, and without a warrant, the Deputy went to Johnson’s home and placed a magnetized GPS tracking device on the bottom of Johnson’s van. Having discussed warrantless GPS tracking with a prosecutor a few years before, the Deputy believed that placing the GPS on Johnson’s car was not a Fourth Amendment search.

Using information gathered from the GPS, the police observed Johnson rendezvous in Chicago with a customer in a separate car, and then return to Ohio.  When Johnson returned to Ohio, both he and the customer in the other car were pulled over and seven kilograms of cocaine discovered in the customer’s car. Johnson was indicted for trafficking and possession of cocaine.

Johnson filed a motion to suppress the evidence obtained as a result of the warrantless GPS tracking. Although the trial court recognized that the issue was one of first impression in Ohio, the court denied the motion and found that a warrant was not required. As a result, Johnson entered a plea of no contest to trafficking and possession charges; the trial court sentenced him to 15 years in prison.

On appeal to the Twelfth Appellate District, the court affirmed the decision of the trial court and found that Johnson did not have a legitimate expectation of privacy in the undercarriage of his vehicle. Therefore, the placement of the GPS tracking device was not a Fourth Amendment search.

Johnson appealed that decision to the Supreme Court of Ohio, which accepted jurisdiction. After the parties had briefed and argued the case, the United States Supreme Court issued its decision in United States v. Jones, holding that placing a GPS tracking device on the undercarriage of a suspect’s car without a warrant is a violation of the Fourth Amendment. The Supreme Court of Ohio vacated the appellate decision and remanded the case back to the trial court to apply the holding of Jones. Read an analysis of the Jones case here.

What Happened on Remand

On remand, the trial court found that Johnson’s Fourth Amendment rights were violated by the warrantless placement of the GPS device. However, the court upheld the denial of the motion to suppress after finding that the Davis good faith exception to the exclusionary rule applied. On the second appeal to the Twelfth Appellate District, the court affirmed the denial of the motion. The court found that the good faith exception can apply when officers do not act with disregard for a person’s Fourth Amendment rights and that binding appellate precedent sanctioning the violation is not required. The Supreme Court of Ohio has accepted Johnson’s appeal a second time.

Key Precedent

Fourth Amendment to the U.S. Constitution (The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.)

Davis v. United States, 131 S.Ct. 2419 (2011)(The good faith exception precludes the application of the exclusionary rule when officers reasonably rely on binding appellate precedent.)

United States v. Leon, 468 U.S. 897 (1984)(Evidence obtained by way of a defective search warrant is admissible at trial, so long as the warrant was obtained in good faith and the officer had reasonable grounds for believing the warrant was properly issued.)

Herring v. United States, 129 S.Ct. 695 (2009) (To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.)

United States v. Jones, 132 S. Ct. 945 (2012) (Attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.)

 

Johnson’s Argument

Johnson argues that the Twelfth Appellate District incorrectly applied the Davis good faith exception to his case and, therefore, the motion to suppress the evidence obtained from the GPS tracking should be granted.

First, Johnson points out that the other Ohio appellate districts that have applied the Davis good faith exception did so only when binding appellate precedent existed to support it; in the absence of such precedent the good faith exception could not be applied. The Twelfth District did not apply the holding in Davis, but instead, engaged in a fact-intensive, cost-benefit analysis to determine if the Deputy’s conduct was deliberate, reckless, or grossly negligent. The Twelfth District incorrectly decided that the good faith exception should be expanded to include warrantless searches in the absence of binding precedent.

Second, Johnson argues that all the prior good faith exceptions to the exclusionary rule, such as the exceptions in Leon and Herring, required that an officer mistakenly rely on a warrant. Davis is the only United States Supreme Court case to expand the exception to cases in which officers reasonably rely on binding appellate precedent. Therefore, stretching this exception further by focusing on an officer’s culpability is incompatible with Supreme Court precedent.

Third, expanding the Davis good faith exception would give police little incentive to err on the side of constitutional behavior. By allowing officers to conduct Fourth Amendment searches without binding precedent, they will guess what the law might be, rather than what the law is. This would allow officers to pick and choose laws of different jurisdictions to follow. In this case, when the Deputy placed the tracking device under Johnson’s van without a warrant, neither the Supreme Court of Ohio nor the Twelfth District had addressed this issue.

Lastly, the good faith exceptions to the exclusionary rule are limited to those the United States Supreme Court created. Rather than applying the law that exists, the Twelfth District has charged Johnson with the burden of proving the Deputy acted in bad faith in order to trigger the exclusionary rule. This new rule of law is not authorized by any binding court in Ohio or the United States Supreme Court.

State’s Argument

The State argues that the denial of the motion to suppress must be upheld because when officers act in good faith, there is no underlying deterrent value to suppressing evidence.

First, the State argues that Johnson’s view of the Davis good faith exception is too narrow. The purpose of the exclusionary rule is to deter deliberate, reckless, and grossly negligent police conduct, rather than to remedy such past violations. Therefore, the exclusionary rule does not apply when police act in an objectively reasonable good faith belief that their conduct is lawful. Because the Deputy reasonably believed a warrant was not required, suppression of the evidence is inappropriate as there is no deterrence value.

Second, the United States Supreme Court decision in Herring states that courts must determine whether the benefits of deterrence outweigh the societal costs of suppression. In balancing, courts are to consider whether the officers engaged in deliberate, reckless, or grossly negligent conduct that must be deterred. Without conduct to deter, the application of the exclusionary rule allows possible dangerous defendants to go free.

Third, and contrary to Johnson’s assessment, district courts around the country have interpreted Davis to apply more broadly than to require that binding appellate precedent is necessary to invoke the good faith exception. Specifically, courts have realized that Davis stands for the proposition that the culpability of the officers who committed the Fourth Amendment violation and a cost-benefit analysis need to be examined before the application of the exclusionary rule.

Lastly, the Deputy did place the GPS on the vehicle in objectively reasonable reliance on case law. Prior to the placement of the GPS in 2008, the United States Supreme Court upheld the use of monitoring vehicles using electronic beepers. Further, the Ninth and Seventh Districts upheld the warrantless use and placement of magnetized tracking devices on vehicles. It was not until about two years after the GPS placement on Johnson’s car that a court held that the warrantless use of GPS tracking for one month constituted a search. Therefore, the Deputy did reasonably rely on the precedent that existed at the time.

Johnson’s Proposed Proposition of Law

When no binding appellate precedent exists to authorize a police officer’s warrantless use of a GPS tracking device, United States v. Davis does not authorize the application of the good faith exception to the exclusionary rule.

State’s Proposed Counter Proposition of Law

When officers act in good faith, suppression is unwarranted as there is no underlying deterrent value.

Amicus Brief in Support of Johnson

The National Association of Criminal Defense Lawyers filed an amicus in support of Johnson. The Association argues that, under Davis, courts should apply the exclusionary rule when there is no unequivocal binding precedent authorizing a particular search. In the alternative, a cost-benefit analysis tilts in favor of suppression in Johnson’s case.

Amicus Brief in Support of the State

The Ohio Prosecuting Attorneys Association filed a combined amicus in support of the state. The Association argues that the warrantless attachment and monitoring of a GPS device on a vehicle so as to follow the vehicle’s movements on public roadways does not violate the Fourth Amendment when there is reasonable suspicion or probable cause justifying such attachment or monitoring.

In addition, Ohio Attorney General Mike DeWine filed an amicus in support of the state. The Attorney General argues that the United States Court might hold, and thus there is a good faith basis for an officer to believe, that the attachment and monitoring of a GPS device on an automobile traveling on public roads is reasonable under the Fourth Amendment if police have reasonable suspicion (or, alternatively, probable cause) that it will reveal evidence of wrongdoing.

Student Contributor: Cameron Downer

 

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