State v. Johnson

[Cite as State v. Johnson, 2013-Ohio-4865.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2012-11-235

: OPINION
- vs - 11/4/2013
:

SUDINIA D. JOHNSON, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2008-11-1919

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee

William R. Gallagher, The Citadel, 114 East Eighth Street, Cincinnati, Ohio 45202, for
defendant-appellant

HENDRICKSON, P.J.

{¶ 1} Defendant-appellant, Sudinia Johnson, appeals from his convictions for

trafficking in cocaine and possession of cocaine following his plea of no contest in the Butler

County Court of Common Pleas. Johnson argues that the trial court erred in overruling his

motion to suppress evidence obtained through the warrantless attachment and subsequent

use of a GPS tracking device on the exterior of his vehicle. Because suppression of the
 Butler CA2012-11-235

evidence would not yield appreciable deterrence and law enforcement acted with an

objectively reasonable good faith belief that their conduct was lawful, we find that the trial

court did not err in denying Johnson's motion to suppress. For the reasons set forth below,

Johnson's convictions are affirmed.

I. FACTUAL BACKGROUND

{¶ 2} The following facts were originally set forth in State v. Johnson, 190 Ohio

App.3d 750, 2010-Ohio-5808 (12th Dist.) (hereafter, Johnson I), and are hereby incorporated

in full:

Detective Mike Hackney, a supervisor in the drug-and-vice-
investigations unit for the Butler County Sheriff's Office, received
information from three separate confidential informants that
Johnson was trafficking in cocaine. Specifically, Hackney was
informed that Johnson had recently dispersed multiple kilos of
cocaine, that Johnson was preparing to acquire seven more
kilos, and that Johnson moved the cocaine in a van. Hackney
testified at the motion-to-suppress hearing that he had been
familiar with Johnson's possessing and driving a white Chevy
van at the time the informants gave him the information.

[On October 23, 2008] Hackney and two other agents performed
a trash pull at Johnson's residence, and while there, they
attached a GPS device to Johnson's van, which was parked on
the east side of the road opposite the residences. Hackney
testified that he attached the GPS device to the metal portion of
the undercarriage of the van. Hackney stated that the device
was "no bigger than a pager" and was encased in a magnetic
case so that the device did not require any hard wiring into the
van's electrical systems.

***

After attaching the device, the agents intermittently tracked the
GPS through a secured website. The Tuesday after installation,
the GPS indicated that the van was located in a shopping center
around Cook County, Illinois. Hackney began making
arrangements with law enforcement in Chicago to verify the
location of Johnson's van. * * * Rudy Medellin, * * * a retired
Immigration and Customs officer, * * * agreed to go to the
shopping center and verify the location of Johnson's van.

Medellin arrived at the Chicago shopping center and confirmed
-2-
 Butler CA2012-11-235

the van's location and that the van matched the description and
license-plate number of the van Johnson was known to possess
and drive. * * * Medellin then followed the van from the shopping
center to a residence in the Chicago area, where he saw * * *
two men exit the van and enter the residence.

Medellin saw one man, later identified as Johnson, exit the
residence carrying a package or box, and enter the van.
Medellin saw the other man, later identified as Otis Kelly, drive
away in a Ford that had Ohio plates. Medellin followed
Johnson's van and the Ford until they reached the Butler County
area and communicated with Hackney via cell phone during the
surveillance.

Hackney continued to contact law-enforcement officials
throughout Ohio, readying them to assist once Johnson and
Kelly entered Ohio from Indiana. Hackney drove toward
Cincinnati and, after coming upon Johnson's van, began to
follow him. Hackney advised law-enforcement officers to stop
the van and Ford "if they were able to find probable cause to
make a stop." Deputy Daren Rhoads, a canine handler with the
Butler County Sheriff's Office, initiated a stop after Johnson
made a marked-lane violation.

***

By the time Rhoads initiated the traffic stop, other officers were
also in the position to offer back-up. Officers directed Johnson
to exit his vehicle and then escorted him onto the sidewalk so
that Rhoads could deploy his canine partner. The canine made
a passive response on the driver's side door and on the
passenger's side sliding door. After the canine walk-around,
Johnson gave his consent to have the van searched.

Rhoads and other officers performed a preliminary sweep of
Johnson's van for narcotics, but did not find any drugs or related
paraphernalia in the vehicle. During this time, police vehicles
and Johnson's van were situated on the road. After the initial
search, officers moved Johnson's van approximately one-tenth
of a mile to the location where police had pulled over the Ford
driven by Otis Kelly. Officers there had also deployed two
canine units around Kelly's Ford, and the canines detected the
presence of narcotics. The officers ultimately located seven
kilos of cocaine within a hidden compartment in the Ford's trunk
and arrested Kelly for possession of cocaine. (Footnote
omitted).

Once the van was situated at the second location, Rhoads
continued his search with the help of an interdiction officer for

-3-
 Butler CA2012-11-235

the Ohio State Highway Patrol. The two concentrated on the
undercarriage of the van and looked for any hidden
compartments that Rhoads may have missed during his
preliminary search. No drugs were recovered from the van.

* * * Officers later seized Johnson's keys and discovered that
one of the keys on Johnson's key ring opened the hidden
compartment in the Ford that contained the seven kilos of
cocaine seized from Kelly's vehicle. [The evidence was seized
and Johnson was arrested.]

Johnson I at ¶ 2-13.

{¶ 3} Johnson was indicted in November 2008 on one count of trafficking in cocaine

in violation of R.C. 2925.03(A)(2), one count of possession of cocaine in violation of R.C.

2925.11, and one count of having weapons while under disability in violation of R.C.

2923.13(A)(3). Following his indictment, Johnson filed numerous motions to suppress

evidence obtained by law enforcement as well as a motion to sever the charge of having

weapons while under disability from the trafficking and possession charges. Johnson's

motion to sever was granted, a bench trial was held, and Johnson was acquitted of having

weapons while under disability.

{¶ 4} An evidentiary hearing on Johnson's motions to suppress was held on March 3,

2009. At this time, the trial court considered Johnson's "Supplemental Motion to Suppress as

to GPS Issue," in which Johnson sought to suppress all evidence obtained "directly or

indirectly" from searches and seizures of himself and his property as "said searches and

seizures were conducted with the unmonitored, unbridled use of a GPS device" in violation of

his constitutional rights. The trial court denied Johnson's motion to suppress as to the GPS

issue. Thereafter, Johnson entered a plea of no-contest to the trafficking and possession

charges, and he was sentenced to 15 years in prison.

{¶ 5} Johnson appealed, arguing that "[t]he trial court erred in denying the motion to

suppres[s] when it ruled police did not need a search warrant to place a GPS tracking device

-4-
 Butler CA2012-11-235

on Mr. Johnson's car." Johnson I, 2010-Ohio-5808 at ¶ 18. In Johnson I, this court

concluded that Johnson did not have a reasonable expectation of privacy in the

undercarriage of his vehicle and that the placement and subsequent use of the GPS device

to track the vehicle's whereabouts did not constitute a search or seizure under either the

Fourth Amendment to the United States Constitution or Section 14, Article I of Ohio's

Constitution. Id. at ¶ 18-47.

{¶ 6} Johnson appealed to the Ohio Supreme Court, which accepted review of the

case. State v. Johnson, 128 Ohio St.3d 1425, 2011-Ohio-1049. While the matter was

pending before the Ohio Supreme Court, the United States Supreme Court issued a decision

in United States v. Jones, __ U.S. __, 132 S.Ct. 945, 948 (2012), holding that the

government's "installation of a GPS device on a target's vehicle, and its use of that device to

monitor the vehicle's movements, constitutes a 'search'" within the context of the Fourth

Amendment. (Footnote omitted.) Thereafter, the Ohio Supreme Court vacated our holding

in Johnson I, and remanded the case back to the trial court for application of Jones. State v.

Johnson, 131 Ohio St.3d 301, 2012-Ohio-975, ¶ 1.

{¶ 7} The trial court permitted both parties to file supplemental briefs addressing the

impact that Jones had on Johnson's motion to suppress. At a hearing on September 12,

2012, Johnson and the state stipulated to the trial court's consideration of the transcript and

exhibits from the March 3, 2009 evidentiary hearing. The parties further agreed that no

additional evidence was necessary for the trial court to rule on the motion to suppress. At a

hearing held on October 19, 2012, the trial court issued a decision denying Johnson's motion

to suppress. Although the court found a clear violation of Johnson's Fourth Amendment right

in the warrantless placement of the GPS device on Johnson's vehicle, the court concluded

that exclusion of the evidence obtained from the use of the GPS device was not warranted

under the facts of the case. Relying on Davis v. United States, __ U.S. __, 131 S.Ct. 2419
-5-
 Butler CA2012-11-235

(2011), the trial court concluded that "the deterrence benefit exclusion in this case of non-

culpable, non-flagrant police conduct does not outweigh the heavy costs of exclusion to

society and the judicial system. * * * The Court finds that the officers acted in good faith * * *

and the evidence will be admitted at trial."

{¶ 8} Following the denial of his motion to suppress, Johnson entered a plea of no-

contest to the trafficking and possession charges. The possession charge was merged with

the trafficking charge for sentencing purposes, and Johnson was sentenced to ten years in

prison.

{¶ 9} Johnson now appeals, challenging the trial court's denial of his motion to

suppress.

II. ANALYSIS

{¶ 10} Assignment of Error No. 1:

{¶ 11} THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY THE

EXCLUSIONARY RULE AND SUPPRESS ALL EVIDENCE AND INFORMATION

OBTAINED BY POLICE AFTER IT DETERMINED A WARRANT WAS NECESSARY TO

PLACE A GPS DEVICE ON MR. JOHNSON'S CAR IN VIOLATION OF HIS

CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND

SEIZURES.

{¶ 12} In his sole assignment of error, Johnson argues the trial court erred in denying

his motion to suppress on the basis of the "good faith exception" to the exclusionary rule.

Johnson argues that the good faith exception set forth in Davis is limited in application to

those situations in which there is a "binding appellate procedure authoriz[ing] a particular

police practice." As there was no binding case law in effect at the time the Butler County

Sheriff's Office placed the GPS device on his car, Johnson argues that the police were not

acting in good faith. Johnson, therefore, argues that Davis and Jones require suppression of
-6-
 Butler CA2012-11-235

the evidence obtained through the use of the GPS device.

{¶ 13} The state argues for a broader reading of Davis. The state contends that

Johnson's motion to suppress should be denied on the basis of the good faith doctrine as law

enforcement acted with an objectively reasonable good faith belief that their conduct in

attaching and monitoring the GPS device without the authorization of a warrant was lawful.

The state argues that "binding" judicial precedent is not necessary under Davis' good faith

exception to the exclusionary rule. Rather, the state contends, the focus under Davis is on

the culpability of the police. Because officers from the Butler County Sheriff's Office did not

act with a deliberate, reckless, or grossly negligent disregard for Johnson's Fourth

Amendment rights, the state argues that exclusion of the evidence is not required under the

facts of this case.

A. Standard of Review

{¶ 14} Our review of a trial court's denial of a motion to suppress presents a mixed

question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-

Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve

factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial

of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if

they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.

CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently

reviews the trial court's legal conclusions based on those facts and determines, without

deference to the trial court's decision, whether as a matter of law, the facts satisfy the

appropriate legal standard." Cochran at ¶ 12.

B. The Exclusionary Rule and the Good Faith Doctrine

{¶ 15} The exclusionary rule is a "prudential doctrine" that was created by the United

States Supreme Court to "compel respect for the constitutional guaranty" expressed in the
-7-
 Butler CA2012-11-235

Fourth Amendment. Davis, 131 S.Ct. at 2426, citing Elkins v. United States, 364 U.S. 206,

217, 80 S.Ct. 1437 (1960). The Supreme Court has "repeatedly held" that the exclusionary

rule's "sole purpose * * * is to deter future Fourth Amendment violations." Id. Courts should

not "reflexive[ly]" apply the exclusionary rule, but rather, should limit application of the

doctrine "to situations in which this purpose [of deterring future Fourth Amendment violations]

is 'thought most efficaciously served.'" Id., quoting United States v. Calandra, 414 U.S. 338,

348, 94 S.Ct. 613 (1974). Accordingly, "[w]here suppression fails to yield 'appreciable

deterrence,' exclusion is 'clearly * * * unwarranted.'" Id. at 2426-2427, quoting United States

v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021 (1976).

{¶ 16} Deterrent value alone, however, is insufficient for exclusion because any

analysis must also "account for the substantial social costs generated by the rule," since

exclusion "exacts a heavy toll on both the judicial system and society at large." (Internal

citations omitted.) Id. at 2427. As suppression "almost always requires courts to ignore

reliable, trustworthy evidence bearing on guilt or innocence," the "bottom-line effect, in many

cases, is to suppress the truth and set the criminal loose in the community without

punishment." Id. "[S]ociety must swallow this bitter pill * * * only as a 'last resort.'"

(Emphasis added.) Id., quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S.C.t 2159

(2006). Accordingly, "[f]or exclusion to be appropriate, the deterrence benefits of

suppression must outweigh its heavy costs." Id.

{¶ 17} "[T]he deterrence benefits of exclusion 'vary with the culpability of the law

enforcement conduct' at issue." Id., quoting Herring v. United States, 555 U.S. 135, 143, 129

S.Ct. 695 (2009). "When the police exhibit 'deliberate,' 'reckless,' or 'grossly negligent'

disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and tends

to outweigh the resulting costs. * * * But when the police act with an objectively 'reasonable

good-faith belief' that their conduct is lawful * * * or when their conduct involves only simply
-8-
 Butler CA2012-11-235

'isolated' negligence * * * the 'deterrence rationale loses much of its force' and exclusion

cannot 'pay its way.'" Id. at 2427-2428, quoting United States v. Leon, 468 U.S. 897, 908-

909, 104 S.Ct. 3405 (1984) and Herring at 143-144.

{¶ 18} In Davis, the petitioner, Davis, sought to exclude evidence obtained in a search

following a routine traffic stop. Id. at 2425. After Davis had been arrested, placed in

handcuffs, and put in the back of a patrol car, the police searched the vehicle Davis had been

riding in and found a revolver. Id. At the time the search was conducted, officers were acting

in compliance with New York v. Belton, 453 U.S. 454, 459-460, 101 S.Ct. 2860 (1981), which

held "that when a policeman has made a lawful custodial arrest of the occupant of an

automobile, he may, as a contemporaneous incident of that arrest, search the passenger

compartment of the automobile." Davis was convicted on one count of possession of a

firearm, but he appealed his conviction arguing that the search was unconstitutional. Davis

at 2426. While his appeal was pending, the United States Supreme Court adopted a new

test in Arizona v. Gant, 556 U.S. 332, 343, 129 S.Ct. 1710 (2009), holding that an automobile

search incident to a recent occupant's arrest is constitutional if (1) the arrestee is within

reaching distance of the vehicle during the search or (2) the police have reason to believe

that the vehicle contains evidence relevant to the crime of arrest.

{¶ 19} The issue the United States Supreme Court faced in Davis was whether to

apply the exclusionary rule to suppress evidence obtained by police officers who, at the time

of the search, were acting in compliance with binding precedent that was later overruled.

Davis at 2423. The Court ultimately concluded that "searches conducted in objectively

reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."

Id. at 2423-2424. The Court's holding was predicated on a determination that "suppression

would do nothing to deter police misconduct in these circumstances" and "would come at a

high cost to both the truth and the public safety." Id. at 2423.
-9-
 Butler CA2012-11-235

C. Application of the Good Faith Doctrine to GPS Cases

{¶ 20} Following the Supreme Court's decision in Jones, courts across the country

have addressed the propriety of applying Davis to cases in which GPS monitoring began

before Jones was decided. "These decisions may be generally divided in two groups: (1)

[courts] with pre-Jones binding appellate precedent sanctioning the warrantless installation

and use of GPS devices, and (2) [courts] with no such binding appellate authority." United

States v. Guyton, E.D.La. No. 11-271, 2013 WL 55837, *3 (Jan. 3, 2013).

{¶ 21} Courts falling within the first category have had no problem applying Davis to

deny the suppression of evidence. See State v. Rich, 12th Dist. Butler No. CA2012-03-044,

2013-Ohio-857 (relying on Johnson I as binding appellate precedent within the Twelfth

District Court of Appeals); United States v. Smith, D.Nev. No. 2:11-cr-00058-GMN-CWH,

2012 WL 4898652 (Oct. 15, 2012) (relying on binding appellate precedent in the Ninth

Circuit); United States v. Amaya, 853 F. Supp.2d 818 (N.D.Iowa 2012) (relying on binding

appellate precedent in the Eighth Circuit); United States v. Nelson, S.D.Ga. No. CR612-005,

2012 WL 3052914 (July 25, 2012) (relying on binding appellate precedent in the Eleventh

Circuit).

{¶ 22} Courts falling within the second category, however, are divided on how Davis

should be applied. Some courts have construed Davis narrowly and hold that the good faith

exception is inapplicable in the absence of binding appellate precedent. See State v. Allen,

8th Dist. Cuyahoga Nos. 99289 and 99291, 2013-Ohio-4188; State v. Allen, 11th Dist. Lake

No. 2011-L-157, 2013-Ohio-434; State v. Henry, 2d Dist. Montgomery No. 11-CR-829, 2012-

Ohio-4748; United States v. Katzin, E.D.Pa. No. 11-226, 2012 WL 1646894 (May 9, 2012);

United States v. Lee, 862 F.Supp.2d 560 (E.D.Ky.2012); United States v. Lujan, N.D.Miss.

No. 2:11CR11-SA, 2012 WL 2861546 (July 11, 2012). Other courts interpret Davis to require

- 10 -
 Butler CA2012-11-235

a case-by-case inquiry into whether law enforcement acted with an objectively reasonable

good faith belief that their conduct was lawful. See Guyton, 2013 WL 55837; United States

v. Oladosu, 887 F.Supp.2d 437 (D.R.I.2012); United States v. Baez, 878 F.Supp.2d 288

(D.Mass. 2012); United States v. Leon, 856 F. Supp.2d 1188 (D.Haw.2012); United States v.

Rose, 914 F.Supp.2d 15 (D.Mass.2012); United States v. Lopez, 895 F.Supp.2d 592

(D.Del.2012).

{¶ 23} The question before this court is whether the Davis good faith exception applies

here, where prior to our decision in Johnson I there was no Ohio Supreme Court or Twelfth

District case law authorizing the warrantless installation and monitoring of a GPS device. We

believe that a case-by-case approach examining the culpability and conduct of law

enforcement is more appropriate given the preference expressed in Davis for a cost-benefit

analysis in exclusion cases as opposed to a "reflexive" application of the doctrine to all cases

involving a Fourth Amendment violation. Davis, 131 S.Ct. at 2427 ("We abandoned the old,

'reflexive' application of the [exclusionary] doctrine, and imposed a more rigorous weighing of

its costs and deterrence benefits").

{¶ 24} In analyzing whether the Butler County Sheriff's Office acted with a "deliberate,"

"reckless," or "grossly negligent" disregard for Johnson's Fourth Amendment rights, we find

that in addition to examining the specific actions taken by Detective Hackney and the sheriff's

office, it is also necessary to examine the legal landscape as of October 23, 2008, the date

the GPS device was placed on Johnson's vehicle.

{¶ 25} At the March 3, 2009 hearing, Hackney testified that the GPS device was

placed on Johnson's vehicle without first attempting to obtain a warrant. Hackney explained

that he had previously installed GPS devices on suspects' vehicles in other cases without

having obtained a warrant. Prior to placing such GPS devices, Hackney had consulted with

- 11 -
 Butler CA2012-11-235

assistant prosecutor Dave Kash about the legality of using GPS devices.1 Hackney further

stated that he had talked with his fellow officers, his supervisors, and with other law

enforcement agencies about the use of GPS devices. He explained that "it was kind of

common knowledge among other drug units or talking to other drug units that as long as the

GPS is not hard wired, as long as it is placed on - - in a public area, removed in a public area,

it is basically a tool or an extension of surveillance."

{¶ 26} Hackney's belief that a warrant was unnecessary was not unfounded given the

legal landscape that existed at the time the GPS device was placed on Johnson's car. As of

October 23, 2008, no court had ruled that the warrantless installation and monitoring of GPS

devices on vehicles that remained on public roadways was a violation of the Fourth

Amendment. Courts that had considered the issue of electronic monitoring determined that

the United States Supreme Court's decision in United States v. Knotts, 460 U.S. 276, 103

S.Ct. 1081 (1983) controlled. In Knotts, the Supreme Court held that there was no Fourth

Amendment violation where officers used an electronic beeper, which had been hidden

inside of a chemical container prior to the container coming into the defendant's possession,

to track a defendant's movements as he traveled on public roads with the container in his car.

The Supreme Court held that a defendant "traveling in an automobile on public thoroughfares

has no reasonable expectation of privacy in his movements from one place to another." Id.
2
at 281.

{¶ 27} Subsequent to the United States Supreme Court's decision in Knotts, the Ninth

Circuit determined in United States v. McIver, 186 F.3d 1119, 1126-1127 (9th Cir.1999), that

1. At the March 3, 2009 hearing, Hackney specified that he had talked to Dave Kash about a "[y]ear and a half
[to] two years" ago about the legality of using a GPS device without a warrant.

2. Compare United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081 (1983), with United States v. Karo, 468 U.S.
705, 104 S.Ct. 3296 (1984), where the Supreme Court determined that the monitoring of an electronic beeper in
a private residence constitutes a search requiring a warrant as the location of the beeper was not open to visual
surveillance.
- 12 -
 Butler CA2012-11-235

the placement of a magnetic electronic tracking device on the undercarriage of a vehicle did

not violate the Fourth Amendment. In McIver, law enforcement placed a magnetized tracking

device on the undercarriage of the defendant's vehicle while the vehicle was parked in the

defendant's driveway. Id. at 1123. The transmitter sent a signal to a monitoring unit used by

police officers that informed officers when the transmitter was nearby and in what direction

the transmitter was traveling. Id. The defendant challenged the constitutionality of using the

tracking device, arguing the use of the device constituted both an illegal search and seizure.

Id. at 1126. The Ninth Circuit disagreed, finding that no search occurred as the defendant

failed to produce evidence demonstrating that he intended to shield the undercarriage of his

vehicle from inspection by others or that placing the device permitted officers to pry into a

hidden or enclosed area. Id. at 1127. The court further concluded that a seizure had not

occurred as the defendant was not deprived of dominion and control of his vehicle and there

was no evidence that use of the tracking device caused any damage to the electric

components of the vehicle. Id.

{¶ 28} Thereafter, in 2007, the Seventh Circuit issued a decision in United States v.

Garcia, 474 F.3d 994 (7th Cir.2007), addressing the warrantless placement and subsequent

monitoring of a GPS device on a defendant's motor vehicle. In Garcia, the Seventh Circuit

found the use of GPS devices analogous to the Supreme Court's sanction of beeper

technology in Knotts. Id. at 996-997. The court concluded that the Fourth Amendment

"cannot sensibly be read to mean that police shall be no more efficient in the twenty-first

century than they were in the eighteenth" and concluded that scientific enhancement allowing

police to monitor a suspect on a pubic road was not a search requiring the authorization of a

warrant. Id. at 998.

{¶ 29} Following the placement of the GPS device on Johnson's vehicle and the

Seventh Circuit's decision in Garcia, numerous other courts upheld the warrantless
- 13 -
 Butler CA2012-11-235

attachment and monitoring of a GPS device on a suspect's vehicle prior to the United States

Supreme Court's decision in Jones. See United States v. Pineda-Moreno, 591 F.3d 1212

(9th Cir.2010); United States v. Marquez, 605 F.3d 604 (8th Cir.2010); United States v.

Hernandez, 647 F.3d 216 (5th Cir.2011). It was not until August 6, 2010, more than 21

months after the GPS device was placed on Johnson's vehicle, that the D.C. Circuit Court

broke with the majority of other jurisdictions by holding that the use of a GPS tracking device

for 28 days violated a defendant's reasonable expectation of privacy and was a violation of

the defendant's Fourth Amendment rights. United States v. Maynard, 615 F.3d 544

(D.C.Cir.2010).

{¶ 30} Given that, at the time Hackney attached the GPS device to Johnson's car, the

United States Supreme Court had sanctioned the use of beeper technology without a warrant

in Knotts, at least one circuit court had applied the rationale expressed in Knotts and

determined that the warrantless placement and subsequent monitoring of a GPS device on a

vehicle was not a violation of a defendant's Fourth Amendment rights, and Hackney acted

only after consulting with fellow officers, other law enforcement agencies, and a prosecutor,

we find that the Butler County Sheriff's Office acted "with an objectively 'reasonable good-

faith belief' that their conduct [was] lawful." Davis, 131 S.Ct. at 2427, quoting Leon, 468 U.S.

at 909. Taking into account the steps taken by law enforcement and the legal landscape that

existed at the time the GPS device was attached to Johnson's vehicle, we find that law

enforcement did not exhibit a deliberate, reckless, or grossly negligent disregard for

Johnson's Fourth Amendment rights in attaching and monitoring the GPS device without the

authorization of a warrant. Suppression under the facts of this case would therefore fail to

yield appreciable deterrence. As such, the deterrence value does not outweigh the social

costs exacted by application of the exclusionary rule, which would require the court "to ignore

reliable, trustworthy evidence bearing on guilt or innocence." Id.
- 14 -
 Butler CA2012-11-235

{¶ 31} We therefore find that the good faith exception to the exclusionary rule applies

in this case. The evidence obtained from the attachment and subsequent use of the GPS

device is not subject to exclusion.

III. CONCLUSION

{¶ 32} Having found that suppression of the evidence would not yield appreciable

deterrence and that law enforcement acted with an objectively reasonable good faith belief

that their conduct was lawful, we find no error in the trial court's denial of Johnson's motion to

suppress.

{¶ 33} Johnson's sole assignment of error is overruled.

{¶ 34} Judgment affirmed.

S. POWELL and RINGLAND, JJ., concur.

- 15 -