[Cite as State v. Henry, 2012-Ohio-4748.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO
Plaintiff-Appellee
v.
CHRISTOPHER D. HENRY
Defendant-Appellant
Appellate Case No. 25007
Trial Court Case No. 11-CR-829
(Criminal Appeal from
(Common Pleas Court)
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OPINION
Rendered on the 12th day of October , 2012.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West
Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JESSICA R. MOSS, Atty. Reg. #0085437, 2233 Miamisburg-Centerville Road, Dayton, Ohio 45459
Attorney for Defendant-Appellant
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FAIN, J.
{¶ 1} Defendant-appellant Christopher D. Henry appeals from his conviction and sentence,
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following a no-contest plea, for Receiving Stolen Property, in violation of R.C. 2913.51(A), a felony of the
fourth degree, and for Possession of Criminal Tools, in violation of R.C. 2923.24(A), a felony of the fifth
degree. Henry contends that the trial court erred in overruling his motion to suppress evidence obtained
by means of the placing of a GPS tracking device on the underneath of a car he was driving, without a
warrant. Henry relies upon United States v. Jones, 565 U.S. ____, 132 S.Ct. 945, 181 L.Ed.2d 911
(2012).
{¶ 2} The State does not concede that under Jones the police were required to obtain a warrant
in order to place the GPS tracking device. But the State does not argue this point; the State argues that the
good-faith exception to the exclusionary rule applies because the police officer placing the device did so in
objectively reasonable reliance upon non-binding judicial authorities in other jurisdictions. The State did
not argue good faith at the suppression hearing, and no evidence was presented at the hearing that the
officer who placed the GPS device did so in reliance upon judicial authorities. Moreover, when Henry
attempted to question the police officer concerning whether the police officer believed that he had the
authority to place the GPS device without a warrant, an objection to the question was sustained upon the
ground that it was not relevant.
{¶ 3} The State relies upon Davis v. United States, ____ U.S. ____, 131 S.Ct. 2419, 180
L.Ed.2d 285 (2011), which holds that a police officer’s reliance upon binding judicial authority is
objectively reasonable, even when that authority is subsequently reversed or overruled. The State argues
that the result should be the same even if there is non-binding, persuasive judicial authority to support the
police officer’s actions. But the opinion in Davis expressly distinguishes its holding from situations where
the question of the lawfulness of the police officer’s action remains open in the governing jurisdiction.
131 S.Ct. 2433.
{¶ 4} We agree with Henry that a warrant was required for the placing of the GPS tracking
device upon the car he was driving, and that the evidence obtained as a result of the placing of that device
should have been suppressed. Accordingly, the judgment of the trial court is Reversed, and this cause is
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Remanded for further proceedings.
I. The Placing of the GPS Tracking Device
{¶ 5} Centerville Police Officer Daniel Osterfeld was aware that a number of thefts had been
occurring at car dealerships on Loop Road, in Centerville. Osterfeld knew that Henry had been involved
previously in thefts from car dealerships. Osterfeld knew that Henry had been released from prison in
May 2010.
{¶ 6} When Osterfeld learned that Henry had been arrested on an outstanding traffic warrant
and that the car he was driving, which he had previously been observed driving, had been towed, Osterfeld
decided to place a GPS tracking device on the car. Henry did not own the car.
{¶ 7} Osterfeld went to the lot where the car had been towed, and identified himself as a police
officer. He asked to see the car. Osterfeld placed a GPS tracking device, and a supplemental battery
pack, on the underneath of the car. Both the tracking device and the battery pack were attached to the car
magnetically; they were not otherwise attached to the car. The tracking device provided the location and
speed of the car, but not any other information concerning the car.
{¶ 8} For several weeks while Osterfeld and other officers periodically checked the information
from the tracking device, nothing of note occurred. Then, on the night of December 28-29, 2010, the car
traveled to Columbus, Ohio, and back. Osterfeld was aware that car dealerships in Columbus and its
suburbs had been experiencing thefts. Osterfeld decided to go to the location of the car.
{¶ 9} Osterfeld caught up with the car in front of a convenience store on North Main Street, in
Dayton. Henry and another man walked out of the front door of the store and spoke for a couple minutes.
Then Henry opened up the back of the car and removed three large chrome truck tires, which were wheeled
in to the store.
{¶ 10} Henry left and came back with five more wheels. At that point, he was arrested.
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II. The Course of Proceedings
{¶ 11} Henry was charged by indictment with Receiving Stolen Property and Possession of
Criminal Tools. He moved to suppress the evidence obtained when he was arrested, contending that it
was obtained as the result of an unlawful search and seizure. Specifically, he contended that the
placement and monitoring of the GPS tracking device constituted a search, that the search was unlawful
because it was performed without a warrant, and that the evidence was obtained as a result of that unlawful
search, and should therefore be excluded.
{¶ 12} After a hearing, the trial court overruled Henry’s motion to suppress. Thereafter, he pled
no contest to both charges, was convicted, and was sentenced accordingly. From his conviction and
sentence, Henry appeals.
III. The Placing and Monitoring of the GPS Tracking Device Was a Search,
and Because it Was Without a Warrant, it Was Unlawful, and the
Evidence Obtained as a Result Should Have Been Suppressed
{¶ 13} Henry’s sole assignment of error is as follows:
THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS
WHEN IT RULED THAT THE WARRANTLESS PLACEMENT OF THE GPS
DEVICE ON THE UNDERCARRIAGE OF THE VEHICLE FREQUENTLY DRIVEN
BY APPELLANT DID NOT CONSTITUTE A SEARCH UNDER THE FOURTH
AMENDMENT TO THE UNITED STATED [sic] CONSTITUTION OR UNDER
SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 14} Henry relies upon United States v. Jones, supra. The State acknowledges that Jones
holds that the placement of a GPS tracking device requires a warrant, but contends that the good-faith
exception to the exclusionary rule applies. The State relies upon Davis v. United States, supra.
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{¶ 15} We note preliminarily that the State never raised the good-faith-exception issue in the
trial court, before, during, or after the suppression hearing. In fact, when Henry attempted to elicit
testimony from Osterfeld germane to that subject, the State objected, and its objection was sustained on the
ground of relevance:
Q. Do these GPS devices, do you believe that law enforcement should have the
authority to install these without –
MS. DENSLOW [representing the State]: Objection.
BY MR. COMBS [representing Henry]: – a warrant?
THE COURT: Sustained.
MR. COMBS: Your Honor, he – he – he says he uses them. I’m just asking his opinion about
using them.
THE COURT: His opinion is meaningless. It’s my decision.
{¶ 16} More importantly, we conclude that the State’s reliance upon Davis is misplaced. The State recognizes
that the holding in that case was that when a police officer relies upon binding judicial authority upholding the lawfulness
of the search he undertakes, his reliance is objectively reasonable, and therefore in good faith, despite the fact that the
judicial authority upon which he relies is subsequently reversed or overruled. The State argues that the holding in Davis
ought to extend to a police officer’s reliance upon persuasive, non-binding judicial authority. The State then points to a
number of judicial decisions, none of which were binding in this jurisdiction, that upheld warrantless use of GPS tracking
devices.
{¶ 17} The opinion in Davis, itself, belies the State’s position. Justice Alito wrote the opinion of the Court, in
which five other justices concurred. The defendant in that case, Davis, argued that “applying the good-faith exception to
searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law. With no
possibility of suppression, criminal defendants will have no incentive * * * to request that courts overrule precedent.” 131
S.Ct. 2432. In response to this argument, Justice Alito wrote:
And in any event, applying the good-faith exception in this context will not prevent judicial
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reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent
sought to be challenged will be a decision of a Federal Court of Appeals or State Supreme Court. But a
good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and
correction of such decisions. This Court reviews criminal convictions from 12 Federal Courts of Appeals,
50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these
courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question
remains open will still have an undiminished incentive to litigate the issue. This Court can then grant
certiorari, and the development of Fourth Amendment law will in no way be stunted. Id., at 2433.
(Footnote omitted, emphasis added.)
{¶ 18} From the italicized portion of Justice Alito’s opinion for the United States Supreme Court in Davis, it 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.
{¶ 19} In a footnote in its brief, the State notes that it is not conceding that the Fourth Amendment was violated
in this case because United States v. Jones, supra, leaves open the question whether a warrantless use of a GPS tracking
device is lawful if the police have probable cause to support the search. Significantly, the reason the United States
Supreme Court did not address that issue in Jones is because it was not raised in the trial court, and was therefore forfeited.
132 S.Ct. 954.
{¶ 20} Here, also, the State’s argument that the placement of the GPS tracking device, if it constituted a search,
was reasonable despite the lack of a warrant, was not made in the trial court. Henry filed a Supplemental Memorandum in
Support of [his] Motion to Suppress, in which he identified the issues as follows:
I. Whether law enforcement officers are required to obtain a warrant prior to placing a Global
Positioning System (GPS) tracking device on a vehicle located on private property; and
II. Whether law enforcement officers are required to obtain a warrant prior to monitoring and
collecting data from that GPS after placing it on that vehicle.
{¶ 21} Neither at the suppression hearing, nor in its memorandum in opposition to the motion to suppress, did the
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State argue that even if the placement and monitoring of the GPS tracking device constituted a search for Fourth
Amendment purposes, it was based upon probable cause, and therefore lawful. The State’s memorandum argued solely
that the placement of the GPS tracking device did not constitute a search.
{¶ 22} The trial court wrote a well-reasoned decision overruling the motion to suppress. (It did not, of course,
have the benefit of the decision of the United States Supreme Court in United States v. Jones.) Unsurprisingly, in view of
the State’s failure to argue the point, the trial court did not consider, in the alternative, whether the placement of the GPS
tracking device, if it constituted a search, was nevertheless supported by probable cause, and therefore lawful.
{¶ 23} We conclude, therefore, just as the United States Supreme Court similarly concluded in Jones, that the
State has forfeited an argument that the placement of the GPS tracking device was a lawful search, even though it was
warrantless. The suppression hearing was not made up on that issue.
{¶ 24} Henry’s sole assignment of error is sustained.
IV. Conclusion
{¶ 25} Henry’s sole assignment of error having been sustained, the judgment of the trial court is
Reversed, and this cause is Remanded for further proceedings consistent with this opinion.
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GRADY, P.J., and DONOVAN, J., concur.
Copies mailed to:
Mathias H. Heck
Andrew T. French
Jessica R. Moss
Hon. Michael Tucker