E.D.Mo. declines to follow majority rule: No Davis good faith for GPS

Disagreeing with the majority of cases and following the minority view, the Davis good faith exception is not applied to pre-Jones GPS use. United States v. Robinson, 903 F. Supp. 2d 766 (E.D. Mo. 2012):

But I do not read Davis that broadly, and do not agree that the Davis good faith exception applies here. I recognize that the majority in Davis spent much time discussing the rationale underlying the exclusionary rule and the need to balance the societal cost of its application. The majority noted that the deterrence benefits of exclusion “‘var[y] with the culpability of the law enforcement conduct’ at issue.” Davis, 131 S.Ct. at 2427 (quoting Herring v. United States, 555 U.S. 135, 143, 129 S. Ct. 695, 172 L. Ed. 2d 496 (2009)). Thus, “when the police act with an objectively reasonable good-faith belief that their conduct is lawful … the deterrence rationale loses much of its force and exclusion cannot pay its way.” Id. at 2427-28 (internal citations and quotations omitted).

I do not believe, however, that in Davis the Supreme Court announced a good faith exception that invites courts to engage in a free-ranging balancing test in the absence of controlling Supreme Court or Circuit authority. Rather, I agree with the Ortiz group of cases, that the holding in Davis extends only to “binding” precedent. The language of Davis is narrow, and quite specific. In discussing whether the police were culpable, the majority in Davis noted “the officers’ conduct was in strict compliance with then-binding Circuit law.” Davis, at 2428-29. The opinion repeatedly references “binding” authority, see, e.g., id., at 2428, 2429, 2431, 2434; the majority did not reference “generally accepted authority.” Indeed, the majority specifically noted that the situation might be different with “defendants in jurisdictions in which the question remains open.” Id. at 2432; see also id. at 2436 (Sotomayor, J., concurring). The majority also limited its holding to cases where “binding appellate precedent specifically authorizes a particular police practice.” Id. at 2429.

This narrow extension of the exception is consistent with the Davis majority’s discussion of the Leon good faith exception. The Court traced the case law progression from good faith reliance on a defective warrant issued by a magistrate judge, to good faith reliance on subsequently invalidated statutes, good faith reliance on erroneous information in a database maintained by judicial employees, and good faith reliance on an isolated record in a police database. Id. at 2427-28. The Court recognized that in those instances, application of the exclusionary rule would make little sense and would have no real deterrent value. In those situations the errant conduct was that of the judge, the legislature, the court staff, or those charged with maintaining a database, not of the officers who reasonably relied on that information in effecting a search, and the exclusionary rule was not intended to deter the actions of the former group. The Court reasoned that application of the exclusionary rule to the facts in Davis would be like “penaliz[ing] the officer for the [appellate judges’] error.” Id. at 2429 (internal citations omitted).