PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4625
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
HENRY STEPHENS,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:11-cr-00447-JKB-1)
Argued: October 30, 2013 Decided: August 19, 2014
Before SHEDD and THACKER, Circuit Judges, and HAMILTON, Senior
Circuit Judge.
Affirmed by published opinion. Judge Shedd wrote the majority
opinion, in which Senior Judge Hamilton joined. Judge Thacker
wrote a dissenting opinion.
ARGUED: Christopher Ford Cowan, LAW OFFICE OF CHRIS F. COWAN,
Columbus, Ohio, for Appellant. Albert David Copperthite, OFFICE
OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
SHEDD, Circuit Judge:
Convicted of illegal firearm possession, Henry Stephens
contends that the district court erroneously denied his pretrial
motion to suppress evidence. Caselaw decided after Stephens was
indicted tends to establish that the search at issue is
unreasonable under the Fourth Amendment, but we are not now
concerned with the legality of the search. Rather, we must
decide the separate issue of whether the district court
correctly declined to apply the exclusionary rule because the
search was conducted in “good faith.” Our consideration of this
issue requires us to answer “the objectively ascertainable
question whether a reasonably well trained officer would have
known that the search was illegal in light of all of the
circumstances.” Herring v. United States, 555 U.S. 135, 145
(2009) (citation and internal punctuation omitted). Because we
find that the search was “conducted in objectively reasonable
reliance on binding appellate precedent,” Davis v. United
States, 131 S.Ct. 2419, 2423-24 (2011), the answer to this
question is “yes.” Therefore, the exclusionary rule does not
apply, and we affirm Stephens’ conviction.
I
The underlying facts are not disputed. In 2011, federal and
state law enforcement officers in the Baltimore area were
investigating Stephens for possible drug and firearms crimes.
2
The investigation began as a result of information provided by a
registered confidential informant, and it was spearheaded by
Officer Paul Geare, who was a 13-year veteran of the Baltimore
Police Department. Officer Geare was also deputized as an ATF
agent and assigned to a “High Intensity Drug Trafficking Area”
(“HIDTA”) task force unit, which was “a hybrid unit of federal
agents as well as city police officers” operating pursuant to
Baltimore City and HIDTA guidelines. J.A. 405. The HIDTA joint
task force is “organized to conduct investigations into drug and
gun violations of both federal and state law, and its
investigations indeed [lead] to both federal and state
prosecutions, determined on the basis of the facts uncovered.”
United States v. Claridy, 601 F.3d 276, 283 (4th Cir.), cert.
denied, 131 S.Ct. 259 (2010) (emphasis in original).
On May 13, 2011, Officer Geare – acting without a warrant -
installed a battery-powered Global-Positioning-System device
(“GPS”) under the rear bumper of Stephens’ vehicle, which was
parked in a public lot in Parkville, Maryland. 1 Officer Geare had
information that Stephens was a convicted felon, that he would
be working security at a nightclub known as “Club Unite” on the
1
In March 2011, Officer Geare installed the GPS on
Stephens’ vehicle without a warrant, and it remained on the
vehicle for several weeks. Officer Geare testified that the GPS
probably had been removed because the battery was getting low.
3
evening of May 16, and that he usually carried a firearm when he
worked there. With this knowledge, Officer Geare – in
conjunction with other officers - implemented a plan to detain
Stephens and search him on May 16 at Club Unite.
During the evening of May 16, Officer Geare used the GPS to
locate Stephens’ vehicle at an area school. Officer Geare and
another city police officer (Sergeant Johnson) then observed and
followed Stephens as he drove the vehicle to his residence.
Before Stephens left the residence to drive to Club Unite,
Officer Geare and Sergeant Johnson saw Stephens, who was
standing outside his vehicle, reach around to the back of his
waistband. They interpreted this movement as being a check for a
weapon. Based on this and other information they had previously
obtained, the officers “had at least reasonable suspicion, if
not probable cause, that [Stephens] was armed and was on his way
to work at Club Unite.” J.A. 520.
When Stephens drove away from his residence, Officer Geare
alerted other officers who had been briefed on the plan to go to
Club Unite. Using visual observation and a portable laptop
computer to monitor the GPS, Officer Geare and Sergeant Johnson
followed Stephens’ vehicle as he drove on public roads to Club
Unite. Upon Stephens’ arrival at Club Unite, the officers who
had been alerted approached him and conducted a patdown, which
revealed an empty holster in the middle of his back. Within a
4
matter of minutes, a Baltimore city police officer arrived and
conducted a canine inspection of the vehicle exterior. After the
canine alerted, the officers searched the vehicle and found
(among other things) a loaded pistol. The officers then arrested
Stephens and charged him with one or more state-law crimes.
Stephens remained in state custody for approximately three
months, until a federal grand jury indicted him for illegal
firearm possession by a convicted felon. See 18 U.S.C. §
922(g)(1). After the federal indictment, the state charges were
dismissed. See Presentence Report, No. JKB-11-0447, at 1 (D.
Md.). 2
While this case was pending below, the Supreme Court held
in United States v. Jones, 132 S.Ct. 945, 949 (2012), 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 meaning of the
Fourth Amendment. Because the officers in Jones did not have a
valid warrant authorizing the GPS usage, the search – i.e., GPS
usage – violated the Fourth Amendment. The Court did not,
however, rule that all warrantless GPS searches violate the
2
The record does not specify the state charges for which
Stephens was arrested. We note, however, that possession of a
firearm by a convicted felon is a crime under § 5-133 of the
Maryland Public Safety Article.
5
Fourth Amendment; instead, the Court expressly declined to
decide whether reasonable suspicion or probable cause may
justify warrantless GPS attachment to vehicles, and that remains
an open question. Id. at 954.
Based on Jones, Stephens moved to suppress the firearm and
other evidence seized on May 16. Following a hearing, the
district court denied the motion. The court concluded that in
light of Jones, Officer Geare’s warrantless use of the GPS on
Stephens’ vehicle was an unconstitutional search that led to the
seizure of the challenged evidence. However, the court held that
the exclusionary rule does not apply because Officer Geare used
the GPS in good faith. Thereafter, Stephens entered a
conditional guilty plea, reserving the right to appeal the
suppression order. See Fed. R. Crim. P. 11(a)(2).
II
In May 2011, at the time of Stephens’ arrest and before
Jones was decided, it was not uncommon for law enforcement
officers in Maryland to attach tracking devices to vehicles
without a warrant. See J.A. 364. Indeed, caselaw in our circuit
shows that officers in Maryland had been doing so since at least
1976. See United States v. Woodward, 546 F.2d 576 (4th Cir.
1976) (declining to address the defendant’s argument that the
warrantless attachment of a “beeper” to his truck was an illegal
search under the Fourth Amendment). Before Officer Geare
6
attached the GPS to Stephens’ vehicle, he had attached a GPS to
other vehicles in public areas without a warrant, and it was his
understanding that a warrant was needed only when (unlike here)
the GPS was wired into the vehicle’s battery system. See J.A.
364-65. Consistent with Officer Geare’s understanding, the
district judge – who had been a United States Magistrate Judge
in Maryland for 12 years before being elevated to the district
court bench - observed that had Officer Geare applied for a
federal warrant to attach a GPS to Stephens’ vehicle, it was
“quite likely” that “the magistrate judge would have said . . .
you don’t need a warrant for that.” J.A. 454. As we explain
below, Officer Geare’s and the district judge’s understanding of
the state of the law as it existed in 2011 is understandable.
The Fourth Amendment provides in relevant part that “[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” The “threshold question” in every Fourth
Amendment case is whether a search or seizure occurred, and “not
every observation made by a law enforcement officer – even if
consciously intended to disclose evidence of criminal activity –
constitutes a search within the meaning of the Fourth
Amendment.” United States v. Taylor, 90 F.3d 903, 908 (4th Cir.
1996). Rather, a search occurs for constitutional purposes only
“when an expectation of privacy that society is prepared to
7
consider reasonable is infringed,” United States v. Jacobsen,
466 U.S. 109, 113 (1984), and “[o]fficial conduct that does not
compromise any legitimate interest in privacy is not a search
subject to the Fourth Amendment,” Illinois v. Caballes, 543 U.S.
405, 408 (2005) (citation and internal punctuation omitted).
Under this principle, “[w]hat a person knowingly exposes to the
public . . . is not a subject of Fourth Amendment protection.”
Katz v. United States, 389 U.S. 347, 351 (1967).
It was well-established by 2011 that “one’s expectation of
privacy in an automobile and of freedom in its operation are
significantly different from the traditional expectation of
privacy and freedom in one’s residence.” United States v.
Martinez-Fuerte, 428 U.S. 543, 561 (1976). In accord with this
principle, we recognized in United States v. George, 971 F.2d
1113, 1119 (4th Cir. 1992), that “there can be no reasonable
expectation of privacy in a vehicle’s exterior.” Moreover, we
observed in United States v. Gastiaburo, 16 F.3d 582, 586 (4th
Cir. 1994), that “it may be reasonable and therefore
constitutional to search a movable vehicle without a warrant,
even though it would be unreasonable and unconstitutional to
conduct a similar search of a home, store, or other fixed piece
of property.” Further, we noted in United States v. Bellina, 665
F.2d 1335, 1340 (4th Cir. 1981), that “this rule of diminished
8
expectation of privacy is particularly appropriate when the
automobile is located in the street or in a public area.”
Although neither the Supreme Court nor this Court had
expressly approved or disapproved of warrantless GPS usage in
2011, the Supreme Court had rejected a Fourth Amendment
challenge to law enforcement officers’ use of a beeper, which is
the technological forerunner to the GPS. In United States v.
Knotts, 460 U.S. 276 (1983), officers had placed a beeper in a
container that was later filled with chloroform, which they
suspected was being used to make illegal drugs. After the
chloroform was purchased, one suspect (Petschen) placed the
container in his vehicle, and the officers followed the
container by using both visual surveillance of the vehicle and a
monitor that received signals from the beeper. The officers
eventually obtained a search warrant for Knotts’ cabin and
premises, which is where the container was delivered, and they
discovered a drug-making laboratory. Following his arrest,
Knotts unsuccessfully moved to suppress evidence on Fourth
Amendment grounds because of the beeper use, and he was
convicted on a drug conspiracy charge.
The Court upheld the denial of the suppression motion,
holding that the use of the beeper was not a search under the
Fourth Amendment. Id. at 285. Noting the diminished expectation
of privacy in automobiles, the Court explained that “[a] person
9
traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one
place to another.” Id. at 281. Thus, “[w]hen Petschen travelled
over the public streets he voluntarily conveyed to anyone who
wanted to look the fact that he was travelling over particular
roads in a particular direction, the fact of whatever stops he
made, and the fact of his final destination. . . .” Id. at 281-
82. Importantly, the Court specifically rejected Knotts’
argument concerning the beeper:
Visual surveillance from public places along
Petschen’s route or adjoining Knotts’ premises would
have sufficed to reveal all of these facts to the
police. The fact that the officers in this case relied
not only on visual surveillance, but on the use of the
beeper to signal the presence of Petschen’s automobile
to the police receiver, does not alter the situation.
Nothing in the Fourth Amendment prohibited the police
from augmenting the sensory faculties bestowed upon
them at birth with such enhancement as science and
technology afforded them in this case.
Id. at 282. Although the Court left open the possibility that a
different rule may apply in a future case for “dragnet-type law
enforcement practices,” it observed that to the extent that
Knotts’ argument was “simply that scientific devices such as the
beeper enabled the police to be more effective in detecting
crime, it simply has no constitutional foundation.” Id. at 284. 3
3
We upheld the constitutionality of technology-enhanced
extended surveillance of public areas in United States v.
Vankesteren, 553 F.3d 286 (4th Cir.), cert. denied, 556 U.S.
(Continued)
10
Knotts involved the use of a beeper, but it “was widely and
reasonably understood to stand for the proposition that the
Fourth Amendment simply was not implicated by electronic
surveillance of public automotive movements.” United States v.
Sparks, 711 F.3d 58, 67 (1st Cir. 2013); see also United States
v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (“Knotts stood for
the proposition that the warrantless use of a tracking device to
monitor the movements of a vehicle on public roads did not
violate the Fourth Amendment.”). Although we had not been
presented with the issue directly, we interpreted Knotts, in
conjunction with the subsequent case of United States v. Karo,
468 U.S. 705 (1984), 4 as standing for the proposition that
1269 (2009), where the defendant sought to exclude evidence
obtained by the government’s use of a hidden, motion-activated
video camera recording his open field. We noted that the “idea
of a video camera constantly recording activities on one’s
property is undoubtedly unsettling to some,” but government
agents could have personally monitored the area over a
continuous period without violating the Fourth Amendment, and
the fact that they “chose to use a more resource-efficient
surveillance method [did] not change our Fourth Amendment
analysis.” Id. at 291.
4
In Karo, government agents installed a beeper inside a
container and used the beeper to track the movement of the
container to various locations, including a number of private
residences. The Court agreed that using the beeper to monitor
the movement of the container within private residences violated
the Fourth Amendment. The Court distinguished Knotts because the
beeper was used in that case only to locate the container as it
traveled on public roads.
11
“monitoring of a beeper falls within the ambit of the Fourth
Amendment when it reveals a critical fact about the interior of
premises that could not have been obtained through visual
surveillance.” United States v. Jones, 31 F.3d 1304, 1310 (4th
Cir. 1994) (citation and internal punctuation omitted).
Moreover, Knotts was considered to be the “foundational
Supreme Court precedent for GPS-related cases.” United States v.
Cuevas-Perez, 640 F.3d 272, 273 (7th Cir. 2011). Based on
Knotts, several federal appellate courts held before 2011 that
the warrantless use of a GPS to track the location of a vehicle
did not necessarily violate the Fourth Amendment. See, e.g.,
United States v. Pineda-Moreno, 591 F.3d 1212, 1215-17 (9th Cir.
2010) (GPS installation and use is not a search); 5 United States
v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) (GPS installation
and use requires only reasonable suspicion); United States v.
Garcia, 474 F.3d 994, 997-98 (7th Cir. 2007) (GPS installation
and use is not a search); but see United States v. Maynard, 615
F.3d 544, 555-60 (D.C. Cir. 2010) (prolonged GPS surveillance is
a search). 6 Two months after Stephens was arrested, the Fifth
5
Both Pineda-Moreno and Cuevas-Perez were later vacated and
remanded for further consideration in light of the Supreme
Court’s 2012 Jones decision. See 132 S.Ct. 1533-34 (2012).
6
In August 2010, the United States Department of Justice
issued an internal email opining that Maynard was “fundamentally
wrong and incompatible with established Fourth Amendment
(Continued)
12
Circuit relied on Knotts and its own prior precedent relating to
beeper usage to hold that the warrantless placement and usage of
a GPS on a vehicle was not a search under the Fourth Amendment.
See United States v. Hernandez, 647 F.3d 216, 220-21 (5th Cir.
2011). Thus, a significant body of federal law existed
nationally in 2011 to support the view that warrantless
attachment of a GPS to a vehicle was not a search within the
meaning of the Fourth Amendment or was permissible when officers
possessed reasonable suspicion that criminal activity was afoot. 7
Consistent with this body of federal law, the Court of
Special Appeals of Maryland had expressly found in 2008 that
warrantless GPS usage was permissible under the Fourth
Amendment. In Stone v. State, 941 A.2d 1238 (Md. App. 2008),
Maryland law enforcement officers who were investigating Stone
for burglary attached a GPS to his truck, and they later used
information from the GPS to locate and arrest him. During a
principles.” See United States v. Wilford, 2013 WL 6211741, at
*39 (D. Md. 2013) (quoting the email).
7
Courts also applied Knotts in cases involving similar
surveillance methods. For example, in United States v. Forest,
355 F.3d 942 (6th Cir. 2004), agents monitored cell phone site
data to track the defendant’s movements along a public highway.
The court held that the defendant “had no legitimate expectation
of privacy in his movements along public highways,” and
therefore the agents did not conduct a search within the meaning
of the Fourth Amendment. Id. at 951.
13
pretrial suppression hearing, Stone’s counsel sought to cross-
examine one of the officers concerning the GPS in order to
establish that the GPS usage violated his Fourth Amendment
rights. The trial court disallowed the cross-examination, and
Stone appealed.
Relying primarily on Knotts, the Court of Special Appeals
affirmed the trial court, concluding that it “did not abuse its
discretion in cutting short the appellant’s cross-examination
about . . . the GPS tracking device because it was unlikely that
cross-examination on those points would have produced any
relevant evidence.” Id. at 1249. The court noted that the GPS
was “simply the next generation of tracking science and
technology from the radio transmitter ‘beeper’ in Knotts, to
which the Knotts Fourth Amendment analysis directly applies,”
and it stated that “the use of the GPS device could not be a
Fourth Amendment violation, and hence further inquiry about it
[on cross-examination] would not have led to relevant
information.” Id. at 1250. Explaining this decision, the court
observed:
[Stone] did not have a reasonable expectation of
privacy in his location in the public, and, more
specifically, in a vehicle riding on public roads, and
therefore evidence about the use of the GPS device . .
. merely to locate him in public, which just as well
could have been done by human visualization — though
less efficiently — was not relevant to [his] Fourth
Amendment-based suppression motion.
14
Id. at 1250-51.
Recently, in Kelly v. State, 82 A.3d 205, (Md. 2013), the
Maryland Court of Appeals resolved any doubt about the state of
the law that existed in Maryland in 2011. The court held that
“before Jones, binding appellate precedent in Maryland, namely
Knotts, authorized the GPS tracking of a vehicle on public
roads.” Id. at 216. The court explained that before Jones, it
would have applied Knotts like the Court of Special Appeals had
done in Stone, “to resolve the question of the constitutionality
of GPS tracking of a vehicle on public roads.” Id. For this
reason, the court held that “just as the Court of Special
Appeals applied Knotts, pre-Jones, when considering the
relevance of testimony on the subject of GPS tracking of a
vehicle on public streets in Stone, so too could police officers
reasonably rely on Knotts, pre-Jones, in affixing a GPS tracking
device to the vehicle of a person under their investigation for
the purpose of conducting surveillance.” Id.
III
For purposes of this appeal, we accept the district court’s
ruling that Officer Geare’s use of the GPS to locate and follow
Stephens in May 2011 was an unreasonable search under the Fourth
Amendment that led directly to the seizure of the evidence from
Stephens’ vehicle and his arrest. Starting from this premise, we
must decide the separate question of whether the exclusionary
15
rule renders the evidence inadmissible. 8 Because the facts are
not disputed, this question involves a pure legal conclusion,
and we review the district court’s ruling de novo. See United
States v. DeQuasie, 373 F.3d 509, 520 (4th Cir. 2004).
A.
The Supreme Court created the exclusionary rule “to
safeguard against future violations of Fourth Amendment rights
through the rule’s general deterrent effect.” Arizona v. Evans,
514 U.S. 1, 10 (1995). The exclusionary rule “generally
prohibits the introduction at criminal trial of evidence
obtained in violation of a defendant’s Fourth Amendment rights,”
Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 359
(1998), but the “sole purpose” of the rule “is to deter future
Fourth Amendment violations,” Davis v. United States, 131 S.Ct.
2419, 2426 (2011), and its application “properly has been
restricted to those situations in which its remedial purpose is
effectively advanced,” Illinois v. Krull, 480 U.S. 340, 347
(1987). As the Court has recently made clear, the exclusionary
rule is not a “strict liability regime,” Davis, 131 S.Ct. at
2429, and exclusion of evidence has “always been [the] last
8
We decline to address the government’s argument that
Officer Geare’s use of the GPS was permissible under the
reasonable suspicion standard because the government conceded
below the illegality of the search under Jones. See J.A. 448-50.
16
resort, not [the] first impulse.” Hudson v. Michigan, 547 U.S.
586, 591 (2006).
“Exclusion exacts a heavy toll on both the judicial system
and society at large,” because it “almost always requires courts
to ignore reliable, trustworthy evidence bearing on guilt or
innocence,” and “its bottom-line effect, in many cases, is to
suppress the truth and set the criminal loose in the community
without punishment.” Davis, 131 S.Ct. at 2427. In order for the
exclusionary rule “to be appropriate, the deterrence benefits of
suppression must outweigh its heavy costs.” Id. “Police
practices trigger the harsh sanction of exclusion only when they
are deliberate enough to yield meaningful deterrence, and
culpable enough to be worth the price paid by the justice
system.” Id. at 2428 (citation and internal punctuation
omitted). Therefore, the exclusionary rule is applicable “[w]hen
the police exhibit deliberate, reckless, or grossly negligent
disregard for Fourth Amendment rights, [and] the deterrent value
of exclusion is strong and tends to outweigh the resulting
costs.” Id. at 2427 (citations and internal punctuation
omitted).
However, “when the police act with an objectively
reasonable good-faith belief that their conduct is lawful, or
when their conduct involves only simple, isolated negligence,
the deterrence rationale loses much of its force, and exclusion
17
cannot pay its way.” Id. at 2427-28 (citations and internal
punctuation). The “pertinent analysis of deterrence and
culpability is objective, not an inquiry into the subjective
awareness of arresting officers,” and the “good-faith inquiry is
confined to the objectively ascertainable question whether a
reasonably well trained officer would have known that the search
was illegal in light of all of the circumstances.” Herring, 555
U.S. at 145 (internal punctuation omitted). 9
Conducting the good-faith inquiry, the Supreme Court has
found the exclusionary rule to be inapplicable in a variety of
circumstances involving Fourth Amendment violations. See, e.g.,
United States v. Leon, 468 U.S. 897 (1984) (where police
conducted a search in reasonable reliance on a warrant that was
9
The good-faith inquiry is often referred to as the good-
faith “exception” to the exclusionary rule. However, given the
manner in which the Supreme Court has limited the application of
the exclusionary rule, some commentators have questioned the
accuracy of labeling the exclusionary rule as the “rule” and the
good-faith inquiry as the “exception.” See, e.g., Michael D.
Cicchini, An Economics Perspective on the Exclusionary Rule and
Deterrence, 75 Mo. L. Rev. 459, 462 (2010) (observing that
Herring “makes the exclusionary rule a misnomer; in fact, when
exclusion is treated as a last resort, it would be far more
accurate to label it the exclusionary exception rather than the
rule”); Matthew A. Josephson, To Exclude or Not To Exclude: The
Future of the Exclusionary Rule After Herring v. United States,
43 Creighton L. Rev. 175, 177 (2009) (“The Herring decision
could transform the exclusionary rule by making the exclusion of
evidence the exception rather than the rule when police violate
the Fourth Amendment.”).
18
later held invalid); Krull (where police conducted a search in
reasonable reliance on subsequently invalidated state statutes);
Evans (where police reasonably relied on erroneous information
in a database maintained by judicial employees); Herring (where
police reasonably relied on erroneous information in a database
maintained by police employees). Our precedent makes it clear
that application of the good-faith inquiry is not limited to the
specific circumstances addressed by the Supreme Court. For
example, in United States v. Davis, 690 F.3d 226, 251-57 (4th
Cir. 2012), cert. denied, 134 S.Ct. 52 (2013), we held that the
exclusionary rule did not apply where officers engaged in an
unconstitutional search by extracting and testing the
defendant’s DNA sample during a murder investigation without a
warrant. We explained that the Supreme Court’s “recent decisions
applying the exception have broadened its application, and lead
us to conclude that the Fourth Amendment violations here should
not result in application of the exclusionary rule.” Id. at
251. 10
10
In Davis, the majority stated that it was faithfully
following Supreme Court precedent by applying “the rationale
supporting the Court’s application of the good-faith [inquiry],”
and it rejected the dissenting judge’s argument that it was
creating a “new, freestanding exception” to the exclusionary
rule. 690 F.3d at 256 n.34.
19
B.
As we have noted, “the good-faith inquiry is confined to
the objectively ascertainable question whether a reasonably well
trained officer would have known that the search was illegal in
light of all of the circumstances.” Herring, 555 U.S. at 145
(citation and internal punctuation omitted). In Davis, the
Supreme Court answered this question in one specific
circumstance, holding that “searches conducted in objectively
reasonable reliance on binding appellate precedent are not
subject to the exclusionary rule.” 131 S.Ct. at 2423-24. As the
Court explained: “An officer who conducts a search in reliance
on binding appellate precedent does no more than act as a
reasonable officer would and should act under the circumstances.
The deterrent effect of exclusion in such case can only be to
discourage the officer from doing his duty.” Id. at 2429
(citations and internal punctuation omitted). Thus, if “binding
appellate precedent” allowing warrantless GPS usage existed in
May 2011, and if it was objectively reasonable for a reasonably
well-trained officer to rely on that precedent, then Davis
controls, and the exclusionary rule is inapplicable.
Despite the ample body of federal law existing in 2011 that
supported warrantless GPS usage similar to what happened in this
case, Stephens contends that none of those cases was binding
precedent in the Fourth Circuit and, for that reason, the
20
exclusionary rule must apply. In essence, Stephens relies on a
negative implication: in his view, the Davis Court’s application
of the good-faith inquiry in the specific circumstance where an
officer has reasonably relied on binding appellate precedent
precludes application of the good-faith inquiry in the slightly
different context where an officer reasonably relied on non-
binding precedent, no matter how extensive and well-developed
that precedent may be.
We have serious doubts about Stephens’ narrow view of the
good-faith inquiry. Nothing in Davis itself supports such an
interpretation. Instead, Davis merely establishes the
inapplicability of the exclusionary rule in one specific
circumstance. Davis does not, however, alter the general good-
faith inquiry which, we reiterate, requires consideration of
whether a reasonably well-trained officer would have known that
a search was illegal in light of all of the circumstances. See
generally Leon, 468 U.S. at 918 (noting that “suppression of
evidence . . . should be ordered only on a case-by-case basis”).
Moreover, as noted, we have not previously limited the good-
faith inquiry only to the precise factual circumstances
addressed by the Supreme Court. 11
11
A simple hypothetical highlights the weakness of
Stephens’ position. Returning to the days before the Supreme
Court decided Jones, we assume that every other federal
(Continued)
21
Stephens’ narrow interpretation of Davis presents an
interesting issue, but one that is ultimately unnecessary for us
to decide. As we explain below, under the facts of this case the
rule announced in Davis directly controls: Officer Geare’s use
of the GPS was objectively reasonable because of the binding
appellate precedent of Knotts.
C.
In May 2011, before Jones, neither the Supreme Court nor
this Court had expressly approved or disapproved of warrantless
GPS usage. However, in 1983, the Supreme Court held in Knotts
appellate court in the country had found warrantless GPS usage
to be constitutional in published opinions, and we had done so
in an unpublished opinion. Under Stephens’ position, evidence
obtained by an officer in this circuit as a result of
warrantless GPS usage would have to be suppressed because
neither the out-of-circuit opinions nor our unpublished opinion
are binding appellate precedent. To accept that view, a court
would necessarily have to hold that even with this universal,
but non-binding, precedent that was directly on point, a
reasonably well-trained officer would have known that the search
was illegal in light of all of the circumstances.
We also note that Stephens’ view appears to run counter to
the manner in which the Supreme Court has examined objective
reasonableness in the analogous context of qualified immunity.
See, e.g., Pearson v. Callahan, 555 U.S. 223, 244-45 (2009)
(“The officers here were entitled to rely on these cases, even
though their own Federal Circuit had not yet ruled on ‘consent-
once-removed’ entries. . . . Police officers are entitled to
rely on existing lower court cases without facing personal
liability for their actions.”); Wilson v. Layne, 526 U.S. 603,
617-18 (1999) (“Given such an undeveloped state of the law, the
officers in this case cannot have been expected to predict the
future course of constitutional law.” (citation and internal
punctuation omitted)).
22
that the use of a beeper to track a vehicle was not a search
under the Fourth Amendment. In doing so, the Court explained
that “[a] person traveling in an automobile on public
thoroughfares has no reasonable expectation of privacy in his
movements from one place to another,” 460 U.S. at 281, and noted
that the beeper simply conveyed to the public what was evident
from visual surveillance.
Knotts is not exactly on point with the facts of this case,
but it is the legal principle of Knotts, rather than the precise
factual circumstances, that matters. See South Dakota v.
Opperman, 428 U.S. 364, 375 (1976) (noting that “in all Fourth
Amendment cases, we are obliged to look to all the facts and
circumstances of this case in light of the principles set forth
in . . . prior decisions”); United States v. LaBinia, 614 F.2d
1207, 1210 (9th Cir. 1980) (noting that “it is a general rule
that unless the Supreme Court expressly limits its opinion to
the facts before it, it is the principle which controls and not
the specific facts upon which the principle was decided”
(citation and internal punctuation omitted)). In this regard, we
reiterate that in conjunction with the general legal landscape
that existed before Jones, “Knotts was widely and reasonably
understood to stand for the proposition that the Fourth
Amendment simply was not implicated by electronic surveillance
of public automotive movements,” Sparks, 711 F.3d at 67, and it
23
was the “foundational Supreme Court precedent for GPS-related
cases,” Cuevas-Perez, 640 F.3d at 273.
After Jones, we know that such an interpretation of Knotts
is incorrect. Without the benefit of hindsight, however, and
with no contrary guidance from the Supreme Court or this Court,
we believe that a reasonably well-trained officer in this
Circuit could have relied on Knotts as permitting the type of
warrantless GPS usage in this case. See Aguiar, 737 F.3d at 262
(in declining to apply the exclusionary rule, the court stated
that “sufficient Supreme Court precedent existed at the time the
GPS device was placed for the officers here to reasonably
conclude a warrant was not necessary in these circumstances”).
Our decision extends to all law enforcement officers within
this Circuit as a matter of federal law, but it is bolstered in
this case by the Maryland Court of Appeals’ holding in Kelly
that Knotts was binding appellate precedent in Maryland under
Davis and, therefore, Maryland police officers could “reasonably
rely on Knotts, pre-Jones, in affixing a GPS tracking device to
the vehicle of a person under their investigation for the
purpose of conducting surveillance.” Kelly, 82 A.3d at 216. 12 To
12
“[S]tate law is irrelevant for determining in the first
instance whether fruits of a search are admissible in federal
court under the Fourth Amendment, [but] state law is relevant
when the analysis proceeds to the question of admitting
unconstitutionally seized evidence under [the] good faith
(Continued)
24
be sure, Officer Geare worked on the HIDTA task force and was
deputized as a federal agent, but he was also a Baltimore City
police officer. In this dual role, Officer Geare was
investigating both federal and state crimes, and his
investigation led to Stephens’ arrest for violating Maryland
law. Under these circumstances, we would make a mockery of the
good-faith inquiry if we were to ignore the clear pre-Jones
state of the law in Maryland – as pronounced by Maryland’s
highest court - and hold that a Maryland officer’s use of the
GPS was objectively unreasonable. The fact that Stephens was
later charged federally does not alter our determination. 13
exception to the exclusionary rule.” United States v. Maholy, 1
F.3d 718, 722 (8th Cir. 1993).
13
Stephens contends that the HIDTA investigation was
federal and that Maryland law is irrelevant. However, the facts
do not establish that the investigation was exclusively federal,
and our precedent regarding joint federal-state investigations
undercuts Stephens’ argument. As we have explained, when
“federal and state agencies cooperate and form a joint law-
enforcement effort, investigating violations of both federal and
state law, . . . [s]uch an investigation is conducted on behalf
of both sovereigns, and its object is to reveal evidence of
crime - be it federal crime or state crime.” Claridy, 601 F.3d
at 282. Moreover, “in the initial stages of a criminal
investigation, it may be anything but clear whether the conduct
being investigated violates state law, federal law, or both,”
United States v. Self, 132 F.3d 1039, 1043 (4th Cir. 1997), and
“the decision with respect to the court in which charges are to
be brought is often made by the Office of the United States
Attorney and the state prosecutor, not the investigating
officer,” Claridy, 601 F.3d at 282. Thus, the “possibility, even
likelihood, of the federal government also bringing charges for
(Continued)
25
IV
Based on the foregoing, we find no basis to set aside the
order denying Stephens’ suppression motion. Accordingly, we
affirm the conviction.
AFFIRMED
the same underlying facts as the original state arrest does not
suddenly cause state officers to stop performing their duties,”
United States v. Taylor, 240 F.3d 425, 428 (4th Cir. 2001), and
the fact that “federal officers were present, assisting in the
arrest of the defendant by the state officers and that they
cooperated with the state officers in the investigation that led
up to the arrests has never been held in any case to render the
state arrest federal,” United States v. Iaquinta, 674 F.2d 260,
268 (4th Cir. 1982) (emphasis in original).
26
THACKER, Circuit Judge, dissenting:
“When law enforcement officers rely on precedent to
resolve legal questions as to which ‘[r]easonable minds . . .
may differ,’ the exclusionary rule is well-tailored to hold them
accountable for their mistakes.” United States v. Davis, 598
F.3d 1259, 1267 (11th Cir. 2010), aff’d, 131 S. Ct. 2419 (2011)
(quoting United States v. Leon, 468 U.S. 897, 914 (1984)).
Clearly then, the exclusionary rule is well-tailored to hold
accountable the law enforcement officers in this case who relied
on non-binding, non-precedential authority regarding emerging
technology -- without first bothering to seek legal guidance --
in order to conduct a warrantless search which spanned a period
of nearly two months.
Therefore, with all due respect to my colleagues in
the majority, I dissent.
I.
In this case, federal and state law enforcement
officers conducted surveillance to track the whereabouts of
Appellant’s vehicle via the installation of a global positioning
system (“GPS”) device. The officers used a battery operated GPS
device affixed to the undercarriage of Appellant’s vehicle to
track his movements 24 hours a day, resulting in a catalog of
data detailing the vehicle’s location for nearly two months from
27
March 20 to April 12, 2011, and again from May 13 to May 16,
2011.
They did so without obtaining a search warrant,
despite the fact that no urgent or exigent circumstance existed.
Indeed, in the words of one of the officers, “the investigation
was taking too long,” and officers “were spending too much time
dragging it out.” J.A. 374. 1
They did so without consulting the United States
Attorney’s Office regarding the legality of such a search,
despite the fact that there was no binding appellate precedent
authorizing their actions, and there was clear indication that
the law in this regard was not settled, but rather, in a state
of flux.
Eight months later, the Supreme Court ruled such
conduct to be in violation of the Fourth Amendment. On January
23, 2012, the Supreme Court ruled that the Government’s
installation of a GPS device on the undercarriage of a target’s
vehicle while it was parked in a public parking lot, “and its
use of that device to monitor the vehicle’s movements,
constitute[d] a search” under the Fourth Amendment. United
States v. Jones, 132 S. Ct. 945, 949 (2012) (internal quotation
1
Citations to the “J.A.” refer to the Joint Appendix filed
by the parties in this appeal.
28
marks omitted). In light of the Jones decision, the district
court invited Appellant to file a motion for reconsideration of
his motion to suppress, which the district court had initially
denied. Ultimately, the district court ruled that, per Jones,
the use of the GPS tracking device in this case was illegal, but
the officers acted in good faith, and the purpose of the
exclusionary rule would not be advanced if the evidence were to
be suppressed. 2
II.
It is a fundamental tenet of the Fourth Amendment that
warrantless searches are per se unreasonable, “subject only to a
few specifically established and well-delineated exceptions.”
Katz v. United States, 389 U.S. 347, 357 (1967). The text of
the Fourth Amendment provides protection from unreasonable
searches and seizures of “persons, houses, papers, and effects.”
U.S. Cont. amend. IV. As the Supreme Court recognized, “[t]he
2
The Government conceded below the illegality of the
search. J.A. 450-51 (“THE COURT: And the use of the GPS was
illegal. [GOVERNMENT COUNSEL]: And, yes, that is correct.
That’s what the Supreme Court has said.”). Curiously, the
Government now attempts to reverse course before us and argue
that a warrant was not needed for the search because the
officers had a reasonable suspicion Appellant was engaged in
illegal activity. Appellee’s Br. 23 (“Installation and use of a
slap-on GPS tracking device is such a limited intrusion that it
should be justified based upon reasonable suspicion.”).
29
text of the Fourth Amendment reflects its close connection to
property.” United States v. Jones, 132 S. Ct. 945, 949 (2012).
Although the Fourth Amendment protects the right to be
free from unreasonable searches and seizures, it “is silent
about how this right is to be enforced. To supplement the bare
text, [the Supreme] Court created the exclusionary rule, a
deterrent sanction that bars the prosecution from introducing
evidence obtained by way of a Fourth Amendment violation.”
Davis v. United States, 131 S. Ct. 2419, 2423 (2011). The Court
has repeatedly held that the exclusionary rule’s sole purpose
“is to deter future Fourth Amendment violations.” Id. at 2426.
Exclusion of evidence collected by unconstitutional means is
“not a personal constitutional right, nor is it designed to
redress the injury occasioned by an unconstitutional search.”
Id. (internal quotation marks omitted). Rather, it is designed
to safeguard the continued vitality of the Fourth Amendment.
The deterrent function of the exclusionary rule
necessarily requires us to consider the “culpability of the law
enforcement conduct at issue. 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.” Davis, 131 S. Ct. at
2427 (internal quotation marks and citations omitted).
Therefore, “[t]o trigger the exclusionary rule, police conduct
30
must be sufficiently deliberate that exclusion can meaningfully
deter it, and sufficiently culpable that such deterrence is
worth the price paid by the justice system.” Herring v. United
States, 555 U.S. 135, 144 (2009).
Based on this rationale, the Supreme Court created a
“good faith” exception to the exclusionary rule, which applies
when law enforcement officers “act with an objectively
‘reasonable good-faith belief’ that their conduct is lawful.”
Davis, 131 S. Ct. at 2427 (quoting United States v. Leon, 468
U.S. 897, 909 (1984)). The Court has applied the good faith
exception to evidence obtained by law enforcement officers who
acted in objectively reasonable reliance upon a search warrant
issued by a neutral magistrate, but where the warrant was
ultimately found to be unsupported by probable cause. See Leon,
468 U.S. at 909. The Court also applied this exception when
officers acted in objective reliance upon a state statute
ultimately found to violate the Fourth Amendment. See Illinois
v. Krull, 480 U.S. 340 (1987). And in Davis, the Court further
articulated this exception applies “when the police conduct a
search in objectively reasonable reliance on binding appellate
precedent.” 131 S.Ct. at 2427. None of these factual scenarios
are present here.
In Davis, the Court ruled this exception applies,
“when the police conduct a search in objectively reasonable
31
reliance on binding appellate precedent.” Davis, 131 S. Ct. at
2434 (emphasis supplied). In further explaining this holding,
the Court stated, “when binding appellate precedent specifically
authorizes a particular police practice, well-trained officers
will and should use that tool to fulfill their crime-detection
and public-safety responsibilities.” Id. at 2429 (emphasis in
original). Thus, Davis carves out a very specific and narrow
articulation of circumstances in which the good faith exception
to the exclusionary rule applies: when officers conduct a search
in objectively reasonable reliance on binding appellate
precedent specifically authorizing their conduct. See id.
Davis did not, however, answer “the markedly different question
whether the exclusionary rule applies when the law governing the
constitutionality of a particular search is unsettled.” Id. at
2435 (Sotomayor, J., concurring).
When presented with the question below as to whether
the good faith exception applied in the circumstance presented
by this case, the district court denied Appellant’s motion to
suppress determining that “the purposes of the [e]xclusionary
[r]ule would just not be achieved in any way whatsoever if
suppression was ordered.” J.A. 479. The district court
determined that the conduct of the law enforcement officers was
in good faith and “passes muster.” Id. In so concluding, the
district court relied on United States v. Michael, 645 F.2d 252,
32
257 (5th Cir. 1981) (en banc), and Krull, 480 U.S. 340, as proof
that the law surrounding the nonconsensual, warrantless
installation of an electronic tracking device was settled before
Jones, 132 S. Ct. 945.
In Michael, the Fifth Circuit held that the
nonconsensual, warrantless installation of a beeper on the
defendant’s van did not violate the Fourth Amendment even if it
was a search. 645 F.2d at 256. In Krull, officers conducted a
warrantless search of an automobile wrecking yard pursuant to a
state statute authorizing warrantless administrative searches of
those licensed to sell motor vehicles or automotive parts. 480
U.S. at 343. The Supreme Court held that the exclusionary rule
did not apply to the evidence obtained by the search because the
officers acted in objectively reasonable reliance upon the state
statute, even though that statute was subsequently found to
violate the Fourth Amendment. Id. at 342. In relying on these
two cases, the district court determined that beepers and GPS
devices were one and the same for purposes of Fourth Amendment
analysis. 3 Therefore, the district court concluded that the law
3
Specifically, when discussing the use of a GPS device
versus a beeper, the district court stated that GPS monitoring
“isn’t a new technology. This is old technology. It’s 20, 30,
40 years that police officers have been using beepers,
transponders, whatever you want to call them, and following them
around. And it’s not a subject that the [c]ourts haven’t
previously addressed.” J.A. 470. As discussed more fully
(Continued)
33
was settled and that investigators acted in good faith relying
on this settled law “when the beeper was placed on the bumper.”
J.A. 479. There are three reasons, recognized in Davis, that
this analysis is flawed: (1) at the time the warrantless search
was conducted in this case, no “binding appellate precedent”
existed in this circuit “specifically authoriz[ing]” law
enforcement’s actions, 131 S. Ct. 2429, 2434; (2) the law in
general regarding the warrantless use of GPS devices was not
settled, but was, in fact, in a state of flux; and (3) law
enforcement officers did not act in an “objectively reasonable”
manner, id. at 2429 (quoting Leon, 468 U.S. at 919).
A.
At the time the warrantless search was conducted in
this case, no “binding appellate precedent” existed in this
circuit “specifically authoriz[ing]” law enforcement’s actions,
Davis, 131 S. Ct. 2429, 2434. The words “binding appellate
precedent” should be given their plain meaning. Id. at 2434.
Binding appellate precedent in this circuit means the published
opinions of this court and the United States Supreme Court.
See, e.g., McBurney v. Young, 667 F.3d 454, 465 (4th Cir. 2012)
below, beepers and GPS devices are not one and the same.
Moreover, Krull, 480 U.S. 340, did not involve the use of a
beeper at all, let alone a GPS device.
34
(“Appellants’ reliance on [a Third Circuit opinion] is misplaced
for at least two reasons. First, as out-of-circuit authority,
it is not binding on this Court.”); Hogan v. Carter, 85 F.3d
1113, 1118 (4th Cir. 1996) (“[U]npublished opinions are not even
regarded as binding precedent in our circuit . . . .” (citing
Local Rule 36(c))). Simply put, opinions of other circuit
courts of appeal in general and of the Fifth Circuit Court of
Appeals in particular -- such as Michael, 645 F.2d 252, upon
which the district court relied -- are not binding precedent in
the Fourth Circuit.
Indeed, it is uncontroverted that at the time the
warrantless search in this case was conducted, the two appellate
courts that bind the District Court of Maryland -- this court
and the Supreme Court -- had no precedent specifically
authorizing the warrantless use of a GPS device to track a
suspect’s vehicle or even authorizing the warrantless,
nonconsensual installation of a beeper tracking device on a
suspect’s vehicle. 4 The majority attempts to fill the void left
4
Even if such a case existed relative to beeper tracking
devices, I am doubtful installation of a beeper would also
“specifically authorize[]” installation of a GPS device. Davis,
313 S. Ct. at 2429. The two are of an entirely different
character. A beeper tracking device requires law enforcement to
at least be in proximity to the device to receive the
transmitted signal, whereas a GPS device downloads location data
at specific time intervals with no proximity needed. See, e.g.,
Jones, 132 S. Ct. at 963-64 (Sotomayor, J., concurring)
(Continued)
35
by this absence of binding precedent by describing instead what
it calls a “significant body of federal law” and precedent from
the Court of Special Appeals of Maryland and the Maryland Court
of Appeals supporting the warrantless attachment of a GPS to a
vehicle. Ante at 13. But the majority fails to cite any
binding appellate precedent specifically authorizing the conduct
as required by Davis. The majority focuses instead on United
States v. Knotts, 460 U.S. 276 (1983), and United States v.
Karo, 468 U.S. 705 (1984). However, reliance on these cases
here is misplaced. As discussed below, in both cases, Knotts
and Karo, the beeper was placed in a container with the consent
of the then-owner, not attached to the undercarriage of the
suspect’s vehicle without knowledge or consent of the vehicle’s
owner. Clearly, these cases do not “specifically authorize[]”
the nonconsensual, warrantless installation of a GPS device on a
suspect’s vehicle. Davis, 131 S. Ct. at 2429.
The majority also quotes our decision in United States
v. Jones, 31 F.3d 1304 (4th Cir. 1994), for the proposition that
we interpreted Knotts and Karo to exclude the use of a beeper
tracking device from “the ambit of the Fourth Amendment” unless
(discussing the differences between surveillance using a GPS
device and a beeper). In other words, with the use of a GPS
device, law enforcement may simply download the data from afar
at their leisure, as they did in this case.
36
“it reveals a critical fact about the interior of premises that
could not have been obtained through visual surveillance.” Ante
at 11-12 (quoting Jones, 31 F.3d at 1310 (internal quotation
marks omitted)). However, reliance on this case is also
misplaced. In Jones, we were asked to determine “whether the
postal inspectors’ use of an electronic tracking device to
monitor the contents of Jones’ van constituted a search
forbidden by the Fourth Amendment.” Id. at 1309. Relying on
Knotts and Karo, we concluded it was not a search because, as in
the Supreme Court cases, the beeper tracking device
was not planted in the van; it was concealed
in a mail pouch which belonged to the
[G]overnment and in which Jones had no
expectation of privacy whatsoever. The mail
pouch with the beeper found its way into
Jones’ van only because Jones stole the
pouch and hid it in the van himself.
Id. at 1310. We made sure to illustrate that the facts in Jones
did not “raise[] the disturbing specter of [G]overnment agents
hiding electronic devices in all sorts of personal property and
then following private citizens who own such property as they go
about their business,” as does the case before us now. Id. at
1311. There was no such danger in Jones, because “the
[G]overnment ha[d] placed the electronic device in its own
property,” and “[o]nly purloiners of such property need fear
adverse consequences.” Id.
37
Indeed, the Supreme Court’s discussion in Jones, 132
S. Ct. 945, of its own beeper cases forecloses the possibility
that these cases support the warrantless GPS search in the case
at hand. In Jones, the Court identified a critical distinction
between its precedent regarding the use of beepers and the case
before the Court, which, as here, involved the nonconsensual,
warrantless installation of a GPS device on the suspect’s
vehicle. Id. at 951-52. The Supreme Court observed that in its
prior beeper cases, the beepers in question had initially been
placed in containers with the consent of the then-owner, and the
containers later came into the defendant’s possession. See id.
(discussing Knotts, 460 U.S. 276, and Karo, 468 U.S. 705); see
also United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014)
(deciding the good faith exception applied to the warrantless
installation of a GPS device on a vehicle “[b]ecause the GPS
unit that played a role in the gathering of evidence against
Brown was installed with the consent of the Jeep’s owner, Knotts
and Karo are ‘binding appellate precedent’”). Thus, the Supreme
Court described the defendant in Jones as being “on much
different footing” than the Knotts and Karo defendants because
he actually possessed the vehicle at the time the Government
installed the GPS tracker, and he had not consented to its
installation. 132 S. Ct. at 952. That is precisely the case
here.
38
B.
The Government also argues that the law regarding GPS
searches was generally settled before the Supreme Court issued
its opinion, and therefore, the main purpose of the exclusionary
rule -- to deter future Fourth Amendment violations -- would not
be met. According to the Government, “[p]rior to the
installation of the GPS tracking devices in this case, the vast
majority of decisions had upheld the use of GPS tracking devices
without a warrant.” Appellee’s Br. 29.
First and foremost, Davis sets a higher bar than a
simple survey of an amorphous “vast majority of decisions.”
Appellee’s Br. 29. Rather, objectively reasonable reliance on
binding appellate precedent specifically authorizing the conduct
at issue is the gauge. Beyond this basic premise, the Supreme
Court’s decision in Jones further undermines the Government’s
argument. The officers in Jones -- standing on the same pre-
Jones legal footing on which the officers in this case stood --
felt compelled to obtain a search warrant in order to attach a
GPS device to the target’s vehicle. See 132 S. Ct. at 948. In
2005, the officers in Jones, participating in a joint FBI and
Metropolitan Police Department Task Force, applied for and
received a warrant from the United States District Court for the
District of Columbia authorizing the installation of a GPS
device on a suspect’s vehicle in the District of Columbia within
39
ten days of the warrant’s issue. Id. However, they installed
the GPS device outside the restrictions found in the warrant
inasmuch as they installed the GPS device on the 11th day and in
Maryland, rather than in the District of Columbia. Id. The
fact that pre-Jones other officers -- located right next door to
the officers in this case no less -- would feel the need to
secure a warrant before installing and using a GPS device on a
suspect’s vehicle certainly casts further doubt on the
Government’s argument that an officer similarly positioned to
the officers here would have reasonably thought the warrantless
search in this case was permissive under binding appellate
precedent.
To be sure, the Government correctly asserts the main
purpose of the exclusionary rule is to deter future Fourth
Amendment violations, not to remedy past ones. But, it does not
then follow that the district court correctly found there was no
police misconduct in this case to be deterred because they acted
in conformity with legal norms that were, at the time, “widely
accepted.” Appellee’s Br. 12. Mere conformity with widely
accepted legal norms is not the standard, nor should it be.
Reliance on past practice in general in order to invade the
province of the Fourth Amendment without a firm legal basis is
not conscientious police work and is, at minimum, reckless.
40
Because no such binding authority existed in this
circuit at the time of the execution of the warrantless search
in this case, I conclude that the good faith exception as
articulated in Davis is unsuitable here. 5 Thus, I next turn to
whether the good faith exception can apply at all to the factual
circumstances of this case -- in other words, whether law
enforcement acted in an objectively reasonable manner. Critical
to this analysis is the fact that, contrary to the Government’s
assertion, the law in this area was not generally accepted or
“widely accepted,” but, rather, was in a state of flux; so much
so that the Supreme Court had accepted the issue for
consideration.
5
See also, United States v. Martin, 712 F.3d 1080 (7th Cir.
2013) (per curiam). Although the Seventh Circuit decided the
case on other grounds, it stated that the district court’s
reliance on Davis was “an unwarranted expansion of the Supreme
Court’s decision” because “[a]s Justice Sotomayor pointed out in
her opinion concurring in the judgment, Davis ‘d[id] not present
the markedly different question whether the exclusionary rule
applies when the law governing the constitutionality of a
particular search is unsettled.’” Martin, 712 F.3d at 1082
(quoting Davis, 131 S. Ct. at 2435 (Sotomayor, J., concurring)).
The court emphasized that the good faith exception as pronounced
in Davis applies “only to ‘a search [conducted] in objectively
reasonable reliance on binding appellate precedent.’” Id.
(quoting Davis, 131 S. Ct. at 2434) (emphasis in original).
41
C.
Law enforcement officers in this case did not act in
an “objectively reasonable” manner, Davis at 2429 (quoting Leon,
468 U.S. at 919). The good faith exception at its core requires
officers to “act with an objectively ‘reasonable good-faith
belief’ that their conduct is lawful.” Davis, 131 S. Ct. at
2427 (quoting Leon, 468 U.S. at 909). The Supreme Court has
recognized, “[r]esponsible law-enforcement officers will take
care to learn what is required of them under Fourth Amendment
precedent and will conform their conduct to these rules.” Id.
at 2429 (internal quotation marks omitted). I conclude that,
here, the officers could not have had an objectively reasonable
belief that their conduct was lawful for several reasons.
First, at the time the warrantless search was
conducted in this case, the District of Columbia Circuit,
neighboring the District of Maryland where the warrantless
search here occurred, had determined that a warrantless GPS
search violated the Fourth Amendment. See United States v.
Maynard, 615 F.3d 544, 549 (D.C. Cir. 2010), aff’d in part sub
nom. United States v. Jones, 132 S. Ct. 945 (2012). In fact, at
the time the warrantless search was conducted in this case,
Maynard had been accepted for argument before the Supreme Court,
further undercutting the Government’s position here that the
issue was generally settled. Additionally, the Maynard case
42
illustrates that as early as 2005, similarly situated officers
were obtaining warrants for GPS searches such as the one
performed in this case. Nonetheless, officers in this case did
not “take care to learn” what was required of them by Fourth
Amendment precedent under these circumstances. Davis, 131 S.
Ct. at 2429.
Quite the contrary. Detective Geare testified that he
did not seek advice from any legal authority regarding the
constitutionality of such a search, even though there was no
exigent circumstance preventing him from doing so. Appellant’s
counsel questioned Detective Geare,
Q At any point did you call the U.S.
Attorney’s Office and say, hey, I’m thinking
about putting a GPS device on a vehicle
without a warrant, should I get one, you
never did that, did you?
A No, not to my recollection.
Q The U.S. Attorney they were available to
you, correct?
A Sure.
. . .
Q The person you would talk to if you had
legal questions was the U.S. Attorney,
correct?
A Correct.
Q And you didn’t call them in reference to
this issue?
A Correct.
43
J.A. 422. Instead, Detective Geare testified that in utilizing
the GPS device in this case, he relied simply on his own past
conduct using GPS devices in prior cases that had resulted in
convictions. Detective Geare testified that it was his
“understanding” that a warrant was not required when attaching a
GPS device on a target’s vehicle, and his “belief” that as long
as the vehicle was in a public area attaching a GPS device “was
fine.” J.A. 365. He certainly did not receive such guidance
from the United States Attorney’s Office because, per his own
testimony, he did not bother to ask.
Because law enforcement officers acted with reckless
disregard for Appellant’s Fourth Amendment rights and failed to
act reasonably to “learn what was required of them” under the
Fourth Amendment before conducting a warrantless search via the
use of a GPS tracking device to monitor Appellant’s every
movement in his vehicle for a period spanning nearly two months,
I cannot conclude that they acted with an objectively reasonable
good faith belief that the warrantless GPS search was lawful.
Davis, 131 S. Ct.at 2429.
III.
In light of this era of fast-moving technological
advancements and our ever-shrinking zone of privacy, see Riley
v. California, 134 S. Ct. 2473 (2014) (holding officers must
44
obtain a warrant before searching a cell phone seized incident
to an arrest), 6 law enforcement officers should be deterred from
undertaking warrantless searches in situations where, as here,
there was no binding appellate precedent authorizing the action,
there was no exigent circumstance, and the state of the law was
unsettled. The Government must err on the side of the
Constitution and obtain a warrant especially as “the disturbing
specter of [G]overnment agents hiding electronic devices in all
sorts of personal property and then following private citizens
who own such property as they go about their business” becomes
ever more possible. United States v. Jones, 31 F.3d 1304, 1311
(4th Cir. 1994). In the words of the Seventh Circuit, I “reject
the [G]overnment’s invitation to allow police officers to rely
on a diffuse notion of the weight of authority around the
country, especially where that amorphous opinion turns out to be
6
In Riley, the Supreme Court recognized that cell phones, a
relatively new technology “inconceivable just a few decades
ago,” “are now such a pervasive and insistent part of daily life
that the proverbial visitor from Mars might conclude they were
an important feature of human anatomy.” 134 S. Ct. at 2484.
The Court further stated, “[t]he fact that technology now allows
an individual to carry [private] information in his hand does
not make the information any less worthy of the protection for
which the Founders fought.” Id. at 2495. The Court recognized
that its decision “will have an impact on the ability of law
enforcement to combat crime;” however, it also emphasized that
“[p]rivacy comes at a cost.” Id. at 2493.
45
incorrect in the Supreme Court’s eyes.” United States v.
Martin, 712 F.3d 1080, 1082 (7th Cir. 2013) (per curiam).
I would reverse the judgment of the district court.
46
United States v. Henry Stephens
Court: Court of Appeals for the Fourth Circuit
Date filed: 2014-08-19
Citations: 764 F.3d 327
Copy CitationsCombined Opinion