S.D.Ind.: Jones applied to planting GPS on defendant’s car before Jones; no Davis GFE because Circuit authority didn’t fully authorize it

Because then-binding circuit authority did not broadly authorize planting GPS devices, defendant gets the benefit of Jones and the tracking is suppressed. No Davis good faith exception here. United States v. Taylor, 979 F. Supp. 2d 865 (S.D. Ind. 2013):

The Court agrees with Mr. Taylor that the three differences between this case and the then-binding Seventh Circuit precedent, taken together, preclude the application of the Davis good-faith exception in this case. Simply put, law enforcement could not have objectively relied on Garcia and Cuevas-Perez when the cases do not explicitly, or for that matter implicitly, authorize the specific actions taken here, especially when both cases raise concerns about the constitutionality of the extent of law enforcement’s actions. First, contrary to law enforcement’s desire to utilize Mr. Taylor’s vehicle’s battery to power the GPS Unit, the Seventh Circuit in Garcia intimated that the use of a GPS device that draws power from the vehicle’s battery could constitute a seizure under the Fourth Amendment.3 See Garcia, 474 F.3d at 996. Second, contrary to law enforcement’s wish to attach the GPS Unit while Mr. Taylor’s vehicle was on public or private property that the public could access, the Seventh Circuit in both Cuevas-Perez and Garcia specifically highlighted the fact that the GPS device in each of those cases was installed on the vehicles when they were parked in a public area. See Cuevas-Perez, 640 F.3d at 272; Garcia, 474 F.3d at 995.

3. The Court notes that it must examine the intended scope of law enforcement’s use of the GPS Unit at the time they attached it to Mr. Taylor’s vehicle rather than the factual particularities of the GPS Unit’s ultimate use. This is because “the need vel non for a warrant depends on the pur-pose of the GPS use,” and thus “the actual course of the GPS use,” which is “not known until long after the need for a warrant might arise,” is “beside the point.” Cuevas-Perez, 640 F.3d at 275. Here, as in “any other case, the police … were obliged to decide ex ante whether their con-templated surveillance activities would require a warrant.” Id.; see also id. at 292 (Wood, J., dis-senting) (assessing whether a Fourth Amendment search occurred by analyzing law enforce-ment’s “inten[tion]” when attaching the GPS device because “[t]he need for a warrant must be ascertained at the outset, not with … hindsight”).

Third and perhaps most importantly, contrary to law enforcement’s desire here to utilize the GPS Unit continuously for sixty days, the Seventh Circuit in Cuevas-Perez specifically declined to decide whether such lengthy surveillance constituted a Fourth Amendment search. See 640 F.3d at 274-76. As noted above, the Seventh Circuit did not reach whether Maynard was rightly decided because, unlike in Maynard, the GPS tracking “was not lengthy and did not ex-pose, or risk exposing, the twists and turns of [the defendant’s] life, including possible criminal activities, for a long period.” Id. at 274-75.