What’s on their Minds: 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.

“If Jones was on the books when your client was arrested for this illegal activity, we wouldn’t be standing here,”—Chief Justice Maureen O’Connor to defense counsel. “Knotts said it was ok to put a beeper on a vehicle, and that was good law in Ohio.”

On September 24, 2014, the Supreme Court of Ohio heard 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 reasonably believed the search was legal. The case was 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.

Case 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 was a Fourth Amendment search. 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. Read about the first oral argument of the case here. Read the oral argument preview of this case here.

Key Precedent

United States v. Knotts (1983), 460 U.S. 276, (warrantless use of a beeper device inside a chloroform container to track the movements of a suspected drug manufacturer was proper. Monitoring the beeper signal did not invade any reasonable expectation of privacy, and was not a search or a seizure.)

United States v. Karo, 468 U.S. 705 (1984) (The use of an electronic beeper device to monitor a can of ether, tracking it between various residences and commercial storage lockers, without a warrant constitutes an unreasonable search under the Fourth Amendment.)
Davis v. United States, 131 S.Ct. 2419 (2011)( the exclusionary rule does not apply to Fourth Amendment violations when officers act in objectively reasonable reliance on binding precedent that is later overturned. In certain circumstances good faith exception can apply to warrantless searches.)

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.)

At Oral Argument

Johnson’s Argument

The United States Supreme Court has emphasized time and again that searches conducted outside the judicial process are per se unreasonable. That is what happened in this case, and the remedy must be exclusion. The default position is to apply the exclusionary rule unless there is a good faith exception. There was none in this case. Davis v. U.S. makes it very clear that in order to invoke the good faith exception to the warrant requirement, there must be appellate precedent that is specific, binding, and unequivocal. There is no case in Ohio or elsewhere that sanctions what the deputy did in this case. Nothing here prevented the officer from going to a judge and seeking a warrant.  And the Knotts case clearly warned officers that its holding about the permissibility of beepers may not apply to new technology. The message is not and should not be that even if technology changes, it is ok not to get a warrant. We don’t want police officers trying to make analogies about technology to decide if they need a warrant.  We don’t want officers to think it is ok to say I don’t need a warrant this time because I didn’t the last time.

State’s Argument

The state divided its time between the county prosecutor’s office and the attorney general’s office.

Prosecutor’s Argument

We have an officer in this case who had gone to specialized training on this issue, had talked to his supervisors and other drug task force members, and a prosecutor. He knew the law would not allow him to hardwire the GPS to the car without a warrant, but reasonably believed that what he did was no different from surveilling the car on a public road. Federal appellate authority at the time was that the magnetic placement of a GPS on a public road was not a search. At the time, the officer acted in accordance with all existing federal precedent. The legal landscape at the time this happened led the officer reasonably to believe that what he did was totally proper. Knotts itself provided the binding appellate precedent on which it was reasonable for the officer to rely.

Attorney General’s Argument

Every federal circuit court of appeals that has addressed the issue has held that the technological differences between a beeper technology and GPS technology should not make any difference. The exclusionary rule applies only when it is necessary to deter police misconduct which is deliberate, reckless, or in gross disregard for Fourth Amendment Rights. The officer’s actions here do not rise to that level. The officer acted objectively reasonably. The legal landscape at the time supported what the officer did. And Jones only held that attaching and monitoring a GPS to a vehicle is a search.  It did not hold that a warrant was required for that search.

What Was On Their Minds

Technology

How different is the technology between the beeper that was ok in Knotts and the GPS tracking device at issue in this case, asked Justice French, in a key question of the day. Even if the technology is different, isn’t the purpose the same, namely to track your vehicle and find you eventually?

Aren’t courts unanimous that you can’t hardwire a GPS to a car that is on the road without having a warrant, asked Justice O’Neill?

The Knotts Case

Before Jones was decided, wasn’t Knotts the best authority the officer had to rely on, asked Chief Justice O’Connor? And there was no definition of what a technology change would have to be in order for Knotts not to be good law? Knotts said it was ok to put a beeper on a vehicle, and that was good law in Ohio.

Didn’t the officer have a reasonable belief that Knotts said he didn’t need a warrant for what he was about to do, asked Justice Lanzinger?

Binding Precedent

At the time this happened, there was no case that talked about a GPS on a car, was there, asked Justice Lanzinger? Typically, tracking on an open road is not within the normal thinking of what search and seizure means?

Didn’t binding precedent at the time allow the tracking device of a beeper in a vehicle, asked Chief Justice O’Connor? Jones wasn’t decided yet, and regardless of how this issues may have been handled by federal courts, in this jurisdiction it was ok to put a beeper in a vehicle and track it?

The Changing Legal Landscape: Pre and Post Jones

What is the interplay between placement of a beeper, which was acceptable, and what happened here, asked Justice O’Donnell? We now know, because of Jones, that police need a warrant before a GPS can be attached to a vehicle, but we didn’t know that at the time this action took place, he commented. Are there still lots of pre-Jones cases out there? Or are we in such a narrow field we aren’t going to see this kind of case again?  Is anything the court decides in this case going to be of very narrow application?

When a police officer is told by lawyers that the officer cannot hardwire a GPS to a car without a warrant, but if the officer were to put it in a magnet box with strong batteries, it should be ok, how does that become a good faith exception to the requirement that you have a warrant before you track someone across three states, asked Justice O’Neill? Is the court being asked to make a decision between the deliberate/reckless standard versus the reasonable police officer standard based on the legal landscape the officer knows?

Did the legal landscape change with Jones? Could the officer have anticipated that or not, asked Justice Lanzinger?

Public versus Private Property

Would it make any difference to the outcome of this case if the GPS was applied on a public street as opposed to on private property, asked Justice Pfeifer?

Is there any expectation of privacy on a public road, asked Justice O’Neill?

The Davis Good Faith Exception

Didn’t the officer have a conversation with a prosecutor before the GPS was attached to the car, asked Justice O’Donnell? He sought legal advice?

Is it fair to attribute sophisticated legal knowledge to a police officer and say therefore there is no good faith here, asked Chief Justice O’Connor? Later, she commented that the bigger issue in the case is how the court treats Davis, and decides what binding precedent should be.

What can we say these officers had a good faith expectation of? Had this court or any court found that putting a GPS on something is bad, asked Justice O’Neill, commenting that we don’t expect police officers to have a PhD in law enforcement.

When we decide the good faith issue, should our analysis include whether the officer could have gotten a warrant but just didn’t want to bother, or knew he couldn’t get a warrant, asked Justice Pfeifer? He later commented that it wasn’t that hard for police officers to get warrants, and as a common practice that is what we would want them to do. Was there any urgency of time here, he asked?

Exclusion as a Remedy

How could suppression have any deterrent effect here when the pre-Jones cases are done, and Jones has clarified what must happen now, commented Justice O’Donnell.

The Ohio Constitution

Justice Pfeifer remains the guardian of the new judicial federalism, where a state court can offer greater protection under its constitution than the federal floor provides. So, he asked if the court should take another one of these cases and decide it on state constitutional grounds.  (The AG answered that he didn’t think there is confusion in the lower courts about this, and that generally the court doesn’t take a case without some level of confusion.)

How it Looks from the Bleachers

To Professor Bettman

Like a win for the state, but not unanimously. I think the Chief’s comment said it all- “Knotts said it was ok to put a beeper on a vehicle, and that was good law in Ohio.” A majority of the justices seemed to feel that the holding in Knotts was appropriate binding precedent to rely on, and that to a law enforcement officer not schooled in legal nuance, a holding that it was ok to put a beeper in a car without a warrant was good enough to think that the warrantless placement of a magnetized GPS was also ok.  Despite a passionate argument by defense counsel that Knotts warned against considering all forms of technology fungible, most of the justices seemed to feel that the good faith exception properly applied here.

Justices O’Neill and Pfeifer are likely to dissent. And no one raised a state constitutional challenge, here, so the new judicial federalism issue is not on the table.

Chief Justice O’Connor and Justice O’Donnell seemed to disagree about whether the case was broad or narrow—O’Donnell asked all counsel about this, but his questions seemed to suggest that he thought that going forward Jones has taken care of this matter, and there probably weren’t a lot of pre-Jones cases left out there.  The Chief saw the broader question as being what the Supreme Court of Ohio considers binding precedent, which will be an interesting question if the court answers it. BUT since what the big supremes say binds us all, a majority of the justices seemed to feel that Knotts did provide the necessary equivalent precedent on these facts.

I might add, by the way, that after this case was originally argued, before Jones came out, I don’t think the Ohio high court was going to find a warrant was necessary in the first place, or even that what happened was a search, but of course, now we will never know that.

To Student Contributor Cameron Downer

A lot of the discussion at oral argument centered around whether the U.S. Supreme Court decision in Knotts provided the requisite precedent needed for the Davis good faith exception to apply. It was clear that Justice French, Justice Lanzinger, and Chief Justice O’Connor did not see a significant difference between the beeper used in Knotts and the magnetized GPS tracking device at issue. Chief Justice O’Connor discussed how both the beeper in Knotts and the GPS in this case were used to track a vehicle’s location on a public road and how the Supreme Court, at the time, had not differentiated the use of beepers and GPS devices. Therefore, the decision in Knotts was the best thing that the officer could have relied on when he decided to place the GPS tracker on the Johnson’s vehicle.

Justices Pfeifer and O’Neill, on the other hand, asked questions involving whether we want, as common practice, to encourage officers to obtain a warrant. Justice Pfeifer also asked whether the fact that the officer in this case had plenty of time to get a warrant, but chose not to do so, should be part of the analysis. Justice O’Neill also asked what exactly the officer was relying on in making his decision. In most good faith cases, officers relied on a warrant that ended up being invalid for some reason or another. In this case, however, the officer did not rely on a warrant and did not have the legal training to know the true state of the law at that time the GPS was placed.

Justice O’Donnell pointed out that applying the exclusionary rule in this case would not yield any deterrent value. Almost all of the decisions involving Jones GPS tracking have already been litigated. Further, law enforcement now knows to obtain a warrant before placing GPS tracking devices.

Overall, the Justices seemed to be more receptive to applying the broader interpretation of Davis and find that the officer reasonably relied on the Supreme Court’s decision in Knotts. Therefore, this one looks like a win for the state via a split decision.

 

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One Response to What’s on their Minds: Warrantless GPS Tracking Device, Revisited. State of Ohio v. Sudinia Johnson.

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