E.D.Pa. declines to apply Davis good faith exception to GPS

Davis‘s good faith exception is not applicable to GPS surveillance because of lack of binding authority, at least in the circuit. Jones was decided after indictment based on the surveillance. United States v. Katzin, 2012 U.S. Dist. LEXIS 65677 (E.D. Pa. May 9, 2012):

In support of the good faith argument, the Government relies primarily on Davis v. United States, 131 S. Ct. 2419 (2011). In that case, Willie Davis moved to suppress evidence found during the search of a vehicle in which he was a passenger, which took place after he and the driver were handcuffed and placed in a police car. Id. at 2425. At the time of the search, precedent in the circuit where the search was conducted clearly set forth a brightline rule allowing police to search vehicles contemporaneously with arrests of recent occupants, regardless of whether the occupants were still within reach of the vehicle. After the trial court denied Mr. Davis’s motion and he had appealed his subsequent conviction, the Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009), in which the Court departed from the brightline rule regarding vehicle searches previously adopted by most courts. Instead, the Supreme Court held that a vehicle search is not automatically permitted unless the occupants are still “‘unsecured and within reaching distance of the passenger compartment at the time of the search.'” Id. at 2425 (quoting Gant, 556 U.S. at 343). Because the police acted in good faith in relying on binding appellate precedent at the time of the search, the Supreme Court upheld the Eleventh Circuit’s holding that the exclusionary rule should not apply in Mr. Davis’s case. The Court likened this extension of the exclusionary rule to cases in which police had relied on subsequently invalidated statutes or warrants. Id. at 2428-29.

Here, there was no binding Third Circuit precedent on the issue at hand (or even arguable ambiguity in Circuit case law), but rather a split of other circuits with regard to the Fourth Amendment significance of non-consensual GPS monitoring. After Davis, only a very small handful of federal court opinions have even discussed the extension of Davis’s holding to an area of unsettled law, and all three deal with GPS monitoring. …