OH10: Defense counsel not ineffective for not predicting Jones

Defense counsel was not ineffective for not predicting the outcome in Jones when he recommended to defendant to plead guilty based on GPS evidence. State v. Miranda, 2013-Ohio-5109, 2013 Ohio App. LEXIS 5303 (10th Dist. November 19, 2013):

[*P19] Further, appellant cannot demonstrate deficiency as a result of trial counsel’s failure to anticipate, in 2011, the United States Supreme Court’s 2012 ruling in Jones. In general, trial counsel is not ineffective in “failing to be clairvoyant” about how a court might ultimately rule on a legal issue. State v. Wallace, 1st Dist. No. C-77227, 1978 Ohio App. LEXIS 10910 (Feb. 15, 1978). At the time of appellant’s plea (July 2011), the law was unsettled as to whether the use of GPS tracking devices constituted a search. In 2010, the 12th District Court of Appeals held in Johnson that GPS surveillance of a defendant during a criminal investigation did not constitute a search or seizure under the Fourth Amendment. The court in Johnson relied in part on similar rulings by federal courts. See Johnson at ¶ 26, citing United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir.2010) (upholding warrantless placement of GPS device on defendant’s vehicle on the basis such placement did not constitute a “search”); United States v. Marquez, 605 F.3d 604, 610 (8th Cir.2010) (holding that, under the Fourth Amendment, police not required to obtain a warrant to place a GPS tracking device on truck defendant drove in order to record its travels).

[*P20] Federal courts have also declined to find deficient performance by defense counsel in failing to anticipate the Supreme Court’s decision in Jones. See Ricks v. United States, D.C.Md. No. WDQ-12-1368, 2013 U.S. Dist. LEXIS 146964 (Oct. 10, 2013) (trial counsel not ineffective for advising Ricks, five months before Jones was decided, that he could not successfully challenge GPS evidence and recommending that he accept a more favorable plea agreement resulting in the government dismissing two counts against him); United States v. Jesus-Nunez, M.D.Pa. No. 1:10-CR-017-01, 2013 U.S. Dist. LEXIS 19104 (Jan. 25, 2013) (“Attorney * * * could not be expected to predict that future case law would find that the use of warrantless GPS evidence, such as the type used here, violated the Fourth Amendment”); United States v. Drayton, Kan.App. No. 13-3148, 2013 U.S. App. LEXIS 20549 (Oct. 9, 2013) (considering, at the time of defendant’s arrest, that the majority of circuit courts that addressed the issue held that no warrant was required for a GPS device, counsel’s decision not to file a motion to suppress “was not ‘objectively unreasonable.’ That the Supreme Court ultimately reached the opposite conclusion in United States v. Jones * * * more than one year after Drayton’s plea, does not render counsel’s performance ‘objectively unreasonable'”).