OH10: GPS installation two years before Jones violated Fourth Amendment, and no good faith

The state appealed the grant of a motion to suppress installation of a GPS device two years before Jones. It’s a lengthy opinion dealing with all aspects of GPS and affirming suppression: installation with reasonable suspicion, installation under the automobile exception, and good faith. Without any binding authority saying it was valid, the good faith exception doesn’t apply. State v. Sullivan, 2014-Ohio-1443, 2014 Ohio App. LEXIS 1328 (10th Dist. April 3, 2014):

[*P55] As in Ortiz and Ford, the state here overemphasizes what GPS monitoring cannot show and underestimates what it can show. While there are limitations on the data the GPS monitoring provided, as it showed only where the tracked vehicle was located, not who was driving it or what its occupants were doing, the GPS technology permitted Corporal Minerd to track the vehicle’s whereabouts 24 hours a day, seven days a week, no matter who was driving the vehicle or where it was driven. The GPS device also permitted Corporal Minerd to track the vehicle in real time or at set intervals at his convenience. Accordingly, the GPS monitoring had the significant potential to yield protected information, such as the location of the tracked vehicle at places which would normally be protected from physical police surveillance. Furthermore, the “special needs” doctrine does not apply to this case. The state has not articulated a particularized interest beyond the general interest in law enforcement. Indeed, the state’s evidence establishes that the sole purpose of attaching and monitoring the GPS device was to aid in the investigation. Under the “special needs” doctrine, the primary purpose of a search cannot be to “generate evidence for law enforcement purposes.” Id.

[*P56] For the foregoing reasons, as well as those articulated in Ortiz and Ford, we conclude that the GPS attachment and monitoring in the instant case could not be justified by a showing of reasonable suspicion.

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[*P79] We concur in the decisions of our sister districts in Henry, Allen and Allen and, accordingly, hold that, in the absence of “binding appellate precedent” authorizing the warrantless installation and monitoring of a GPS device, the good-faith exception to the exclusionary rule does not apply. In the instant case, at the time the GPS device was attached to defendant’s vehicle, January 14, 2010, no “binding appellate precedent” authorized the warrantless attachment and monitoring of a GPS device. Even assuming the cases relied upon by the state had been decided before the GPS was attached and/or were otherwise applicable, none constitute “binding appellate precedent” applicable to this case, having not been decided by the United States Supreme Court, the Supreme Court of Ohio, or the Tenth District Court of Appeals.