In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐3187
UNITED STATES OF AMERICA,
Plaintiff‐Appellee,
v.
RICHARD GEORGE MARTIN,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Central District of Illinois
No. 11‐CR‐10084‐001 — Michael M. Mihm, Judge.
____________________
ARGUED SEPTEMBER 9, 2015 — DECIDED NOVEMBER 10, 2015
____________________
Before EASTERBROOK, KANNE, and WILLIAMS, Circuit Judg‐
es.
KANNE, Circuit Judge. In August 2010, Normal, Illinois,
police attached a battery‐powered, global‐positioning‐
system device (“GPS”) to the Lincoln sedan belonging to De‐
fendant‐Appellant Richard George Martin. Martin was a
suspected drug trafficker, and the GPS was being used in an
effort to monitor his movements. The police attached the
GPS without seeking a warrant or consulting legal counsel
2 No. 14‐3187
regarding the constitutionality of this investigative tech‐
nique. Again, without seeking a warrant or legal advice, the
police attached a new GPS to the Lincoln on three more oc‐
casions, after the device failed or detached. The GPS tracking
assisted police in identifying locations Martin used for his
drug‐trafficking operations, which later led to a search war‐
rant, seizure of evidence, and indictment.
Prior to Martin’s trial, the Supreme Court held that the at‐
tachment of a GPS to a vehicle and its subsequent use to
track a vehicle’s movements constitutes a “search” under the
Fourth Amendment. United States v. Jones, 132 S. Ct. 945, 949
(2012). Relying on Jones, Martin moved to suppress the evi‐
dence seized as a result of the GPS tracking. The district
court denied Martin’s motion and found that our binding
precedent in 2010 permitted the police’s warrantless use of
the GPS. Martin was later convicted on one count of drug
trafficking and sentenced to a mandatory term of life im‐
prisonment pursuant to 21 U.S.C. § 841(b)(1)(A). Martin
challenges both the district court’s denial of his motion to
suppress and his sentence. Finding no error with either deci‐
sion, we affirm.
I. BACKGROUND
The Normal police investigation into Martin’s drug traf‐
ficking began in August 2010. On August 9, 2010, a confiden‐
tial informant identified Martin as a past supplier of cocaine
and marijuana. The next day, the Normal police and an FBI
agent coordinated a controlled buy between the confidential
informant and Martin in a Target store parking lot. Martin
provided the informant about two ounces of cocaine in ex‐
change for $2,200. Martin arrived at the controlled buy in a
Lincoln sedan. An earlier “trash rip”—the practice of taking
No. 14‐3187 3
trash from the curb of a suspected drug‐trafficking location
to search for evidence—connected Martin to a Broadway
Place address known for drug trafficking and two other loca‐
tions, including a Browne Court address. It was at the
Browne Court address that police observed the same Lincoln
parked.
On August 19, Normal police used a magnet to attach a
battery‐powered GPS to Martin’s Lincoln, which was parked
on a public way near the Broadway Place address. Over the
next fifty‐five days, Normal police would have to attach a
new GPS three times due to detachments or dead batteries.
Each time police waited until Martin’s Lincoln was on a pub‐
lic way to install the GPS. During this period, police did not
consult with in‐house counsel or prosecutors regarding the
constitutionality of this investigative technique.
An analysis of the GPS data by an FBI agent assisting the
investigation revealed that while the Lincoln primarily re‐
mained at the Broadway Place address, it made twenty‐eight
trips to the Browne Court location during the observation
period for an average of thirty minutes. The GPS analysis
also indicated Martin’s Lincoln had traveled to a storage unit
on Olympia Drive. Up to that point, no other evidence had
linked the Olympia Drive location to Martin. Police subse‐
quently went to the storage unit with a certified narcotics
detection dog who, after sniffing outside the storage unit,
indicated a presence of illegal drugs.1
1 Martin does not challenge on appeal the use of a drug‐sniffing dog out‐
side his storage unit, even though he challenged its use there and at the
Browne Court location before the district court. In his motion to sup‐
(continued…)
4 No. 14‐3187
The GPS was detached from the Lincoln for good on Oc‐
tober 12, the same day police executed search warrants for
the Broadway, Browne, and Olympia locations. All told, the
GPS sent data tracking Martin’s Lincoln for just over forty‐
five days. Despite the GPS’s extensive use in the investiga‐
tion, there is no reference to the multiple GPS installations in
the affidavit made in support of the search warrants, nor is
there any discussion of the same in any contemporaneous
police reports in the record. There is, however, extensive
discussion in the search warrant affidavit of multiple trash
rips, open‐air dog sniffs, surveillance, the controlled buy,
and other investigative steps.
Normal police, an FBI agent, and a McLean County Sher‐
iff’s deputy performed the searches, which yielded 83.8
grams of cocaine, 894 grams of marijuana, plastic bags used
for drug packaging, a scale, a vacuum sealer, and $73,313.57,
more than $50,331.57 of which came from the Olympia Drive
location. Martin was arrested the same day.
In September 2011, a federal grand jury returned a one‐
count indictment against Martin and three other co‐
defendants for conspiracy with intent to distribute more
than five kilograms of cocaine and fifty kilograms of mariju‐
(…continued)
press, he relied on Florida v. Jardines, 133 S. Ct. 1409 (2013), which held
that the use of drug‐sniffing dogs on a home’s curtilage constituted a
“search” within the meaning of the Fourth Amendment. The district
court denied the motion, finding Martin lacked standing to challenge the
Browne Court “search” because he did not have a subjective expectation
of privacy there and that the open air sniff at the Olympia Drive location
was not a “search” because it did not occur on the storage unit’s curti‐
lage.
No. 14‐3187 5
ana. See 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B).
Almost two years later, a superseding indictment was re‐
turned on the same count but expanding the time period of
the conspiracy by two years.
In January 2012, the Supreme Court decided Jones, which
held that installation of GPS on a vehicle and subsequent
GPS tracking constituted a Fourth Amendment “search.” 132
S. Ct. at 949. Relying on Jones, Martin filed a motion to sup‐
press evidence “RE GPS” in May 2013, seeking to exclude
any evidence seized as a result of GPS tracking from his trial.
He argued that the fifty‐five days of GPS tracking without a
warrant was an “illegal search and seizure” that violated
“his legitimate expectation of privacy.”2 (Def.’s Mot. to Sup‐
press Evidence Re GPS at 2.) At the September 23, 2013 evi‐
dentiary hearing, Martin established that the Normal police
officers responsible for installing the GPS had not obtained a
warrant prior to the GPS installations and subsequent track‐
ing or sought legal advice regarding whether these activities
constituted a “search” under the Fourth Amendment. It was
also established that the officers had not referenced the GPS
installations or removal in their reports and were unaware of
any department policies, procedures, or regulations relating
to GPS tracking.
The district court denied Martin’s motion to suppress.
While the district court recognized that Jones made GPS in‐
stallation and subsequent tracking a “search” under the
2 Martin incorrectly stated in his motion that the GPS tracking had lasted
fifty‐five days when in fact it had only been tracking Martin’s Lincoln for
just over forty‐five days.
6 No. 14‐3187
Fourth Amendment, it concluded that United States v. Garcia,
474 F.3d 994 (7th Cir. 2007), was the controlling law at the
time and authorized the officers’ investigative tactics. De‐
spite ruling for the Government, the district court observed
the following about the Normal police officers’ failure to de‐
tail their GPS installations in their reports:
I will tell you, I am not happy—perhaps itʹs clear
from my questions. Iʹm very unhappy about the
fact that neither one of these officers made any
mention in any report of when they installed these
devices or changed them. This is the type of thing
even without a change in the law that could easily
be expected to lead to disputes or contentions in
court; so, the idea that, well, there wasnʹt any per‐
ceived need to include this in the report, Iʹm very
troubled by that. And perhaps it even has a little bit
of effect on my assessment of their credibility.
(Supp. Tr. 105:21‐106:7.)
In December 2013, a jury convicted Martin of conspiracy
to distribute and possession with intent to distribute more
than five kilograms of cocaine and fifty kilograms of mariju‐
ana. Prior to trial and pursuant to 21 U.S.C. § 851, the Gov‐
ernment filed a notice of intent to seek enhanced penalties
under 21 U.S.C. § 841(b) in which it listed four of Martin’s
previous felony drug convictions. After trial but before sen‐
tencing, Martin opposed the Government’s notice on the
grounds that the mandatory life prison term required by
§ 841(b) violated the Eighth Amendment’s prohibition
against cruel and unusual punishment and that § 851(e)’s
time limitation violated due process. On September 23, 2014,
the district court denied Martin’s objections and sentenced
him to a mandatory term of life in prison without parole.
No. 14‐3187 7
II. ANALYSIS
Martin attacks both the district court’s denial of his mo‐
tion to suppress and his sentence. He contends that the evi‐
dence seized as a result of the warrantless GPS tracking
should be suppressed as fruits of an illegal “search” and that
the exclusionary rule should apply because police acted with
reckless disregard of the Fourth Amendment by failing to
determine the legality of their then‐legal “search.” Agreeing
that the life sentence imposed by the district court was re‐
quired by statute, Martin only argues the mandatory life
sentence required by § 841(b) is unconstitutional.
A. Martin’s Motion To Suppress
We review the denial of a motion to suppress under a
dual standard of review with factual findings reviewed for
clear error and legal conclusions reviewed de novo. United
States v. Kelly, 772 F.3d 1072, 1077 (7th Cir. 2014); United
States v. Freeman, 691 F.3d 893, 899 (7th Cir. 2012).
The Fourth Amendment provides for “[t]he right of the
people to be secure in their persons, houses, papers, and ef‐
fects, against unreasonable searches and seizures.” U.S.
Const. amend. IV. It, however, “contains no provision ex‐
pressly precluding the use of evidence obtained in violation
of its commands.” United States v. Leon, 468 U.S. 897, 906
(1984). The illegal search and its fruits “work no new Fourth
Amendment wrong,” as the constitutional harm is the un‐
lawful search itself. United States v. Calandra, 414 U.S. 338,
354 (1974). To “compel respect for the constitutional guaran‐
ty” then, the Supreme Court fashioned the exclusionary rule.
Davis v. United States, 131 S. Ct. 2419, 2426 (2011) (citation
and quotation marks omitted). The rule is not a “personal
8 No. 14‐3187
constitutional right,”Calandra, 414 U.S. at 348, and its appli‐
cation “exacts a heavy toll on both the judicial system and
society at large,” as its effect often “is to suppress the truth
and set the criminal loose in the community without pun‐
ishment.” Davis, 131 S.Ct. at 2427. Because its use must out‐
weigh its heavy social costs, Herring v. United States, 555 U.S.
135, 141 (2009), the exclusionary rule has been limited to
serve the purpose of deterring official misconduct and is
generally only applied “[w]hen the police exhibit deliberate,
reckless, or grossly negligent disregard for Fourth Amend‐
ment rights,” Davis, 131 S. Ct. at 2427 (citation and quotation
marks omitted).
Because of these competing interests, several situations
exist in which the exclusionary rule does not apply, includ‐
ing “when the police conduct a search in objectively reason‐
able reliance on binding judicial precedent.” Davis, 131 S. Ct.
at 2428. Referred to as the “good‐faith exception” in Davis,
id. at 2429, we have applied this principle in refusing to sup‐
press evidence seized as a result of warrantless GPS installa‐
tion and tracking, United States v. Brown, 744 F.3d 474, 477–
78 (7th Cir. 2014), and believe it applies here. In Brown, we
concluded that “binding appellate precedent” would have
authorized officers in 2006 to install a GPS on a vehicle and
collect its data without a warrant. Id. at 478. There, we relied
on two Supreme Court cases, as we had not yet decided
whether GPS installation and subsequent monitoring consti‐
tuted a Fourth Amendment “search.” Id. at 477–78 (citing
United States v. Knotts, 460 U.S. 276 (1983) and United States v.
Karo, 468 U.S. 705 (1984)). We did, however, recognize that
our decision in United States v. Garcia, 474 F.3d 994 (7th Cir.
2007), “established that installation of a GPS device, and the
No. 14‐3187 9
use of the location data it produces” are not Fourth
Amendment “searches.” Brown, 744 F.3d at 476–77.
Neither party disputes, nor could they, that at the time
officers attached the GPS and tracked Martin’s Lincoln, their
actions were not considered a “search” within the Fourth
Amendment and that after Jones, they were. Instead, Martin
argues the district court misapplied the exclusionary rule by
failing to find “good faith” on the officers’ part or actual reli‐
ance by them on “binding appellate precedent.” According
to Martin, the officers should have attempted to determine if
their conduct was lawful in order to avoid application of the
exclusionary rule; otherwise, their actions amount to bad
faith and demonstrate the type of reckless disregard that jus‐
tifies the use of the exclusionary rule and its deterrent effect.
For support, he directs us to the officers’ failure to determine
whether their conduct comported with then‐existing Fourth
Amendment precedent—either by researching the law them‐
selves or by consulting with legal counsel or superiors.3 Mar‐
tin also points to the absence of Normal police department
policies, procedures, or regulations regarding the lawfulness
of GPS installation and tracking as further evidence of reck‐
lessness. That binding appellant precedent approved the of‐
ficers’ warrantless GPS installation and subsequent monitor‐
ing here is of no moment, Martin argues, because the Gov‐
ernment should not “benefit[] from a fortuitous coinci‐
dence.” (Appellant’s Reply Br. at 1.)
3 Despite Martin’s contentions, it is unclear from the hearing testimony if
the officers consulted with a superior regarding their decision to install a
GPS. (Supp. Tr. 93:6–25.) Because our decision does not turn on this fact,
we need not resolve the uncertainty.
10 No. 14‐3187
We disagree. The Government does get the benefit of a
“fortuitous coincidence” on these facts. The standard set
forth in Davis is an objective one that does not invite “‘feder‐
al courts on an expedition into the minds of police offic‐
ers[,]’” a foray that “‘would produce a grave and fruitless
misallocation of judicial resources.’” Leon, 468 U.S. at 922 n.
23 (quoting Massachussetts v. Painten, 389 U.S. 560, 565 (1968)
(White, J., dissenting)); see also Illinois v. Krull, 480 U.S. 340,
355 (1987) (“As we emphasized in Leon, the standard of rea‐
sonableness we adopt is an objective one; the standard does
not turn on the subjective good faith of individual officers.”).
Rather, it asks if the searches were “conducted in objectively
reasonable reliance on binding appellate precedent.” Davis,
131 S. Ct. at 2423–24 (emphasis added). In other words, this
standard seeks to answer the “objectively ascertainable ques‐
tion” of “whether a reasonably well trained officer would
have known that the search was illegal in light” of binding
appellate precedent. Herring, 555 U.S. at 145 (quotation
marks and citation omitted). Here, “a reasonably well
trained officer” in 2010 would have known that Garcia per‐
mitted him or her to attach a GPS device to Martin’s Lincoln
and monitor it without having to seek a warrant. The “sub‐
jective awareness” of the officers here is irrelevant. See id.
Also irrelevant is whether the officers had any training on
Garcia’s holding or if they consulted legal counsel or prose‐
cutors regarding the legality of their GPS installation and
subsequent tracking.
That is not to say that the actions or inactions of the po‐
lice will never factor into the exclusionary rule analysis. The
Court has made clear that “[t]o trigger the exclusionary rule,
police conduct must be sufficiently deliberate that exclusion
can meaningfully deter it, and sufficiently culpable that such
No. 14‐3187 11
deterrence is worth the price paid by the justice system.”
Herring, 555 U.S. at 144. The words “deliberate” and “culpa‐
ble” imply that under some circumstances, we must under‐
take an objective measure of the police’s conduct. See id. at
143–44 (collecting cases where an analysis of police’s con‐
duct lead to an application of the exclusionary rule).
Indeed, under our facts, had the law regarding GPS in‐
stallation and tracking not been settled, there would have
been a question as to whether the police’s conduct here was
“deliberate, reckless, or grossly negligent” enough to war‐
rant application of the exclusionary rule. Davis, 131 S. Ct. at
2427–28. Police here provided detailed summaries in con‐
temporaneous reports and the search warrant affidavit of
their investigative activities, including trash rips, controlled
buys, and surveillance.
But in this otherwise detailed reporting, the police omit‐
ted any reference to the four separate GPS installations.
These omissions troubled the district court and beg the ques‐
tion of whether the “reasonably trained officer” would omit
such investigative activities from his or her reports and affi‐
davit. Omitting such key facts may under certain circum‐
stances justify the use of the exclusionary rule. See United
States v. Glover, 755 F.3d 811, 820 (7th Cir. 2014) (stating that
“[a]n officerʹs omission from the probable cause affidavit of
known and substantial adverse information about the in‐
formantʹs credibility is sufficient to support a reasonable in‐
ference of recklessness” and reversing district court’s denial
of a hearing under Franks v. Delaware, 438 U.S. 154 (1978)).
This situation is not one of them. Rather, our situation is
akin to a legal impossibility, i.e. even if the police here had
exhibited sufficient recklessness through their actions, we
12 No. 14‐3187
would still refrain from applying the exclusionary rule be‐
cause warrantless GPS installation and subsequent tracking
were authorized by our precedent.
Martin attempts to support his position that there must
be affirmative evidence of “good faith” or actual reliance by
directing us to the cases where we have applied Davis’s
holding. According to Martin, there was evidence in these
cases that the police had acted without recklessness or gross
negligence. He notes that in Brown, police believed their in‐
stallation of a GPS tracking device on a vehicle with the
owner’s consent was the same as asking an informant to
wear a concealed recording device, 744 F.3d at 476, and that
in United States v. Gutierrez, 760 F.3d 750 (7th Cir. 2014), a
prosecutor instructed the police to conduct the warrantless
search at issue, id. at 752. As for United States v. Taylor, 776
F.3d 513 (7th Cir. 2014), he highlights that a deputy prosecu‐
tor sought authority from the court to attach a GPS device
before the warrantless search occurred. Id. at 514. From these
cases, he concludes that we have only refused to apply the
exclusionary rule where police “did not act recklessly, delib‐
erately, or with gross negligence because they acted in good
faith reliance on the belief that the law permitted their con‐
duct.” (Appellant’s Br. at 18 (emphasis original).)
Martin misinterprets the holdings of these cases. Our
analysis and holding in these cases turned on whether bind‐
ing appellate precedent authorized the police’s conduct in
each situation, not the facts Martin calls to our attention. See
Taylor, 776 F.3d at 517–19; Gutierrez, 760 F.3d at 754–57;
Brown, 744 F.3d at 476–78. So too did our decision in United
States v. Gary, 790 F.3d 704 (7th Cir. 2015), where we rejected
an argument similar to the one Martin advances. There, the
No. 14‐3187 13
defendant argued there was no evidence that police relied
on binding appellate precedent when they searched defend‐
ant’s phone after an arrest without a warrant. Id. at 711. This
search occurred five years before the Supreme Court issued
its decision in Riley v. California, 134 S. Ct. 2473 (2014), which
held a warrantless search of a cell phone is an impermissible
search incident to arrest. Id. at 705. Finding no evidence of
culpable conduct on the police’s part and that our precedent
permitted the police’s activities, we held “[o]bjectively, the
officerʹs search of the cell phone was lawful under then‐
binding precedent,” and therefore, the district court properly
denied the motion to suppress. Id. at 711.
Also fatal to Martin’s position is that the facts of Davis it‐
self do not support his strained interpretation. In Davis, the
police performed a warrantless vehicle search, after arresting
the driver for operating while intoxicated and the passenger
for providing a false name. 131 S. Ct. at 2425. At the time of
the search, the Supreme Court had not yet decided Arizona v.
Gant, 556 U.S. 332 (2009), which no longer permitted the type
of search that occurred in Davis. Id. at 2426. When it oc‐
curred, however, that search was authorized by binding ap‐
pellate precedent. Id. at 2426. There is no suggestion in Davis
that the police actually relied upon that binding appellate
precedent prior to searching the vehicle. There are also no
facts suggesting police consulted with legal counsel or pros‐
ecutors regarding the legality of their search or received
training on the same topic. If we were to accept Martin’s in‐
vitation here then, we would be grafting on a requirement to
Davis’s holding for the Government to demonstrate actual
reliance or “good faith.” We decline Martin’s invitation and
find that the district court did not err by denying the motion
to suppress.
14 No. 14‐3187
B. Martin’s Constitutional Challenge To His Sentence
Martin argues his mandatory life sentence under § 841(b)
violates his Eighth Amendment protection against cruel and
unusual punishment. While we review constitutional chal‐
lenges to sentences de novo, United States v. Figueroa–Espana,
511 F.3d 696, 705 (7th Cir. 2007), we do not need to reach the
issue here. Martin acknowledges that we have held that
Harmelin v. Michigan, 501 U.S. 957 (1991), controls such ques‐
tions and forecloses any challenge to Martin’s mandatory
minimum sentence under § 841(b). See, e.g., United States v.
Ousley, 698 F.3d 972, 974–76 (7th Cir. 2012). That is why Mar‐
tin concedes that he only challenges his sentence to preserve
it for a possible appeal to the Supreme Court. As such, we
decline to revisit our previous holdings today and overrule
the Supreme Court. See Grayson v. Schuler, 666 F.3d 450, 453
(7th Cir. 2012) (“[W]eʹre not supposed to declare a decision
by the Supreme Court overruled unless the Court makes
clear that the case has been overruled, even if weʹre confi‐
dent that the Court would overrule it if the occasion present‐
ed itself.”) (citation omitted). Therefore, we find the district
court did not err in sentencing Martin to a mandatory life
sentence under § 841(b).
III. CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.