CA7: GPS installation 2 yrs before Jones was in good faith no matter how you cut it

Here the GPS was put on defendant’s vehicle two years before Jones and stayed 55 days. It was replaced repeatedly because of dead batteries or because it fell off. Defendant tried to get around Davis good faith by arguing that there was no effort to find out if what they were doing was constitutional, but that fails under Davis. United States v. Martin, 2015 U.S. App. LEXIS 19616 (7th Cir. Nov. 10, 2015):

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 reliance 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 justifies 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 themselves or by consulting with legal counsel or superiors. Martin 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 recklessness. That binding appellant precedent approved the officers’ warrantless GPS installation and subsequent monitoring here is of no moment, Martin argues, because the Government should not “benefit[] from a fortuitous coincidence.” (Appellant’s Reply Br. at 1.)

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 “‘federal courts on an expedition into the minds of police officers[,]'” 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 reasonableness 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 question” 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 permitted him or her to attach a GPS device to Martin’s Lincoln and monitor it without having to seek a warrant. The “subjective 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 prosecutors regarding the legality of their GPS installation and subsequent tracking.

That is not to say that the actions or inactions of the police 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 deterrence is worth the price paid by the justice system.” Herring, 555 U.S. at 144. The words “deliberate” and “culpable” imply that under some circumstances, we must undertake an objective measure of the police’s conduct. See id. at 143-44 (collecting cases where an analysis of police’s conduct lead to an application of the exclusionary rule).

Indeed, under our facts, had the law regarding GPS installation 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 warrant application of the exclusionary rule. Davis, 131 S. Ct. at 2427-28. Police here provided detailed summaries in contemporaneous 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 omitted any reference to the four separate GPS installations. These omissions troubled the district court and beg the question of whether the “reasonably trained officer” would omit such investigative activities from his or her reports and affidavit. Omitting such key facts may under certain circumstances justify the use of the exclusionary rule. See United States v. Glover, 755 F.3d 811, 820 (7th Cir. 2014) (stating that “[a]n officer’s omission from the probable cause affidavit of known and substantial adverse information about the informant ‘s credibility is sufficient to support a reasonable inference 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 would still refrain from applying the exclusionary rule because warrantless GPS installation and subsequent tracking were authorized by our precedent.