On November 13, 2014, the Supreme Court of Ohio handed down a merit decision in State v. Johnson, 2014-Ohio-5021. In a unanimous opinion written by Justice Terrence O’Donnell, in which Justices Paul Pfeifer and Judy Lanzinger concurred in judgment only, the court held that the good-faith exception to the exclusionary rule precluded suppression of evidence obtained from a GPS placed under the defendant’s car without a warrant. The case was argued September 24, 2014.
This is the second case this month in which the court applied the good-faith exception to avoid suppression of evidence obtained in violation of the Fourth Amendment. In State v. Hoffman, Slip Opinion No. 2014-Ohio-4795, released on November 4, 2014, the court held that arrest warrants issued in the case were invalid because they were issued without probable cause, but suppression of the evidence was not required because the police officers relied in good faith on existing appellate precedent, later invalidated. Read the analysis of the Hoffman case here.
Factual Background of Johnson’s Case
In October of 2008, Detective Mike Hackney of the Butler County Sheriff’s office, received a tip from an informant that Sudinia Johnson, the appellant, had sold large amounts of cocaine and was soon going to go to Chicago to get more, and that he would transport it in a van.
Hackney attached a GPS tracking device to the undercarriage of Johnson’s van. He didn’t get a warrant to do this, because he didn’t think he needed one. The device was about the size of a pager, was sealed in a magnetic case, and did not need to be hard wired to the van’s electrical systems. It allowed Hackney to track and record the van’s movements remotely, in real time, using a secure website.
Using information gathered from the GPS, Hackney tracked the van to a shopping center parking lot in Calumet City, Illinois. From there, a Chicago area law enforcement officer verified the location of the van, followed it to a nearby residence in Chicago, saw Johnson emerge from the residence carrying a package, and get into the van. The officer saw another man, later identified as Otis Kelly, drive out of the garage in a passenger car with Ohio license plates. The officer followed both vehicles as they travelled toward Ohio, while Hackney monitored the van’s movements with the GPS.
The two vehicles separated before crossing into Ohio. Hackney directed area officers to stop the vehicles if they had probable cause to do so. A deputy saw Johnson make an improper lane change, and pulled over the van. Johnson consented to a search of the van, but no drugs were found. But when Kelly’s car was stopped for following another car too closely, the police found seven kilos of cocaine in the trunk.
Johnson was ultimately indicted for trafficking and possession of cocaine, each with a major-drug-offender specification. A weapons charge was later dismissed.
First Suppression Hearing
Johnson filed a motion to suppress the evidence obtained as a result of the warrantless GPS tracking. Detective Hackney testified that he believed no warrant was necessary as long as the GPS was not hard wired, and that as long as it was placed in a public area, it was essentially just like a surveillance. Hackney also testified he had attended training seminars on the use of GPS tracking devices, consulted with an assistant prosecuting attorney, and other officers and law-enforcement agencies about this. The trial court denied the motion to suppress. 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 appeals 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 in Johnson, 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. Johnson again pled no contest to the drug charges and was sentenced to ten years in prison.
On the second appeal to the Twelfth Appellate District, the court affirmed the denial of the motion to suppress, applying the good faith exception based on the then-existing legal landscape.
There is a whole lot of it in the case, kind of a primer on the subject. For the purposes of this case, there is “super precedent”- namely Davis, Knotts, and Karo.
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, an 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. Knotts, 460 U.S. 276 (1983), (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 installation of an electronic beeper device to monitor a can of ether, tracking it between various residences and commercial storage lockers, was not a search or a seizure, but monitoring the beeper without a warrant while it was not in places open to visual surveillance constitutes an unreasonable search under the Fourth Amendment.)
United States v. Jones, 132 S. Ct. 945 (2012) (The attachment of a GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.)
Boyd v. United States, 116 U.S. 616, (1886)(the prohibition against unreasonable searches and seizures protects a person’s “indefeasible right of personal security, personal liberty, and private property[;] . . . every invasion of private property, be it ever so minute, is a trespass.”)
Weeks v. United States, 232 U.S. 383 (1914)(Supreme Court announces exclusionary rule, barring the use of evidence secured by an unconstitutional search and seizure.)
Olmstead v. United States, 277 U.S. 438 (1928)(a wiretap, when police have not trespassed on or against private property, is not a search because a search is to be of material things—the person, the house, his papers, or his effects.)
Goldman v. United States, 316 U.S. 129 (1942)(the use of a detectaphone by the police to eavesdrop on conversations through the wall of an adjoining office without trespassing on private property does not violate the Fourth Amendment.)
Kyllo v. United States, 533 U.S. 27 (2001)(“well into the 20th century, [the court’s] Fourth Amendment jurisprudence was tied to common-law trespass.”)
Warden v. Hayden, 387 U.S. 294 (1967)(Over the next 25 years, the court’s cases “increasingly discarded fictional and procedural barriers rested on property concepts” and came to “recognize that the principal object of the Fourth Amendment is the protection of privacy rather than property.”)
Katz v. United States, 389 U.S. 347 (1967)(revisiting wiretaps, the court rejected the application of the trespass doctrine by finding that “the Fourth Amendment protects people, not places.” There, “[t]he Government’s activities in electronically listening to and recording the petitioner’s words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a ‘search and seizure’ within the meaning of the Fourth Amendment.”)
California v. Ciraolo, 476 U.S. 207 (1986)(a Fourth Amendment violation occurs when the government invades a person’s reasonable expectation of privacy.)
United States v. McIver, 186 F.3d 1119 (9th Cir.1999)(Ninth Circuit rejected the argument that evidence obtained following use of a GPS device to track defendant’s vehicle should be suppressed because police committed a trespass in attaching the unit, and it held that defendant had no reasonable expectation of privacy in the undercarriage of his vehicle.)
United States v. Garcia, 474 F.3d 994 (7th Cir.2007)(the Seventh Circuit, citing Knotts and Karo, held that attaching a GPS device to a vehicle does not constitute a search or seizure.)
United States v. Maynard, 615 F.3d 544, 555 (D.C.Cir.2010)(entered almost 2 years after the use of a GPS against Sudinia Johnson, the D.C. Circuit concluded that police must obtain a warrant before using a GPS device to track a suspect’s “movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place.”)
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. Fisher, 745 F.3d 200, 205 (6th Cir.2014)(“pre-Jones cases, authorizing the use of tracking devices like beepers, provided binding authority for the warrantless use of GPS trackers. As such, officers relying on these earlier cases were still within the scope of the good-faith safe harbor, even though the technology described by the cases was not exactly the same.”)
United States v. Katzin, 769 F.3d 163, (3d Cir.2014) (en banc)(Knotts and Karo provided “hornbook law” on electronic surveillance of vehicles, and agents thus had no reason to believe that installing and monitoring a GPS tracking devices was illegal.)
United States v. Sparks, 711 F.3d 58, 68 (1st Cir.2013)(the good-faith exception should be applied “where new developments in the law have upended the settled rules on which the police relied.”)
State v. Hoffman, Slip Opinion No. 2014-Ohio-4795 (When the police conduct a search in objectively reasonable, good-faith reliance upon binding appellate precedent, the exclusionary rule does not apply. ¶ 3 of syllabus)
Johnson’s Arguments For Suppression
Johnson’s primary argument was there was no binding appellate precedent that permitted the warrantless use of GPS tracking devices in Ohio, and that a number of federal courts of appeals have held that the good-faith exception does not apply unless there is binding precedent from the state or federal appellate district (here the Sixth Circuit) or the Ohio or the U.S. Supreme Court. Johnson also argued that the good-faith exception has never been applied to an officer relying on a single conversation with a prosecutor and the prevailing understanding of law enforcement. He argued that the good-faith exception has only been applied when a third party made a mistake that invalidated the search, but not when the officer who conducted the search was the one who made the mistake.
State’s Arguments Against Suppression
There was no police misconduct here, so the exclusionary rule is not required. There was no precedent requiring a warrant before placing a GPS on a vehicle, and in fact, Knotts validated the warrantless-placement practice. Furthermore, Detective Hackney had appropriate consultations on the subject with a prosecutor and other police officers, and had an objectively reasonable, good faith belief that no warrant was required. No reasonable police officer could have anticipated the turn the U.S. Supreme Court took in Jones.
“Whether the good-faith exception to the exclusionary rule applies in this case to preclude suppression of evidence obtained through the use of a GPS tracking device without first obtaining a warrant.”
This quote from United States v. Fisher (see precedent section) from the U.S. Court of Appeals for the Sixth Circuit, from March, of 2014, says it all:
“Pre-Jones cases, authorizing the use of tracking devices like beepers, provided binding authority for the warrantless use of GPS trackers. As such, officers relying on these earlier cases were still within the scope of the good-faith safe harbor, even though the technology described by the cases was not exactly the same.”
The holding in the Johnson case is the same.
The Legal Landscape Before Jones
Justice O’Donnell traced U.S. Supreme Court precedent on various forms of surveillance (see precedent section) up to Jones. Key to the decision in this case are Knotts and Karo. Knotts held the warrantless use of a beeper device inside a chloroform container to track the movements of a suspected drug manufacturer was proper. And in Karo, the warrantless placement of the beeper wasn’t improper, but the later monitoring while in places not open to visual surveillance was.
So, the “legal landscape” at the time Detective Hackney placed the GPS under the van was, no warrant required. Before Jones, both Knotts and Karo said that attaching a beeper to a vehicle was neither a search nor a seizure. After those cases came out, but before Jones was decided, the prevailing view of both state and federal courts that considered the question was that even though GPS tracking devices depended on different technologies than electronic beepers, no warrant was required to attach a GPS to a car or to track the vehicle’s movements.
The Jones Decision
The U.S. Supreme Court changed the landscape in 2012 in Jones when it held that when police attach a GPS device to a suspect’s vehicle, that constitutes a search, implicating the protections of the Fourth Amendment. Furthermore, as Justice O’Donnell wrote in Johnson, “Jones unexpectedly departed from the framework established in Katz” when it went off on a trespass theory.
The Exclusionary Rule and the Good-Faith Exception in This Case
As it had done earlier this month in the Hoffman decision, the court again discussed the high cost of exclusion to society and to the judicial system, reiterating that it should be a remedy only when the police exhibit “deliberate, reckless, or grossly negligent” disregard for Fourth Amendment rights, concluding that simply was not the case here. To the contrary, based on the law in existence at the time, Detective Hackney acted with a good-faith objectively reasonable belief that attaching a GPS tracking device to the undercarriage of Johnson’s van did not implicate the Fourth Amendment, and therefore the good-faith exception to the exclusionary rule applies in this case.
I thought this case was over for the defense when Chief Justice O’Connor said to defense counsel at oral argument, “Knotts said it was ok to put a beeper on a vehicle, and that was good law in Ohio.”
While I didn’t think the decision would be unanimous, (and two justices did concur in judgment only; I thought Justices Pfeifer and O’Neill would dissent), here’s what I wrote after argument:
“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.”
And student contributor Cameron Downer, who also called this for the state wrote this after the argument:
“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.”
In sum, the court in this case pretty much accepted the state’s entire argument, and its proposed counter proposition of law, which was “when officers act in good faith, suppression is unwarranted as there is no underlying deterrent value.”