TX11 declines to follow Davis good faith exception for Jones GPS violation

A GPS device installed on mere reasonable suspicion with a court order was invalid under Jones. Texas’s limited good faith exception does not recognize the Davis good faith exception. State v. Jackson, 2014 Tex. App. LEXIS 5861 (Tex. App.–-Eastland May 30, 2014):

Some federal courts have held that evidence obtained as a result of a GPS search that was conducted before the Supreme Court issued its opinion in Jones is admissible under the good faith exception to the federal exclusionary rule. United States v. Fisher, 745 F.3d 200, 206 (6th Cir. 2014); United States v. Andres, 703 F.3d 828, 834-35 (5th Cir. 2013). Under the good faith exception, “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis, 131 S.Ct. at 2423-24. In Fisher and Andres, the courts held that it was objectively reasonable for the officers to believe that warrantless tracking was permissible under binding appellate precedent in their respective circuits and that, therefore, the good faith exception to the exclusionary rule applied. Fisher, 745 F.3d at 206; Andres, 703 F.3d at 834-35.

At oral argument, the State relied on Taylor v. State, 410 S.W.3d 520 (Tex. App.—Amarillo 2013, no pet.). Based on Taylor, the State asserted that the evidence obtained in this case was not subject to the exclusionary rule because the officers acted in good faith reliance on the law. The Texas legislature has created a statutory good faith exception to the Texas exclusionary rule in Article 38.23(b) of the Code of Criminal Procedure. The scope of the Texas good faith exception is more limited than the scope of its federal counterpart. Article 38.23(b) provides that “[i]t is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.” Crim. Proc. art. 38.23(b) (emphasis added). Thus, an officer’s good faith reliance on the law or existing precedent is not recognized as an exception to the Texas exclusionary rule. The trial court did not err when it granted Jackson’s motion to suppress. The State’s second issue is overruled.