Good faith and "binding" precedent
Detective Hackney of the Butler County Sheriff's Department got a tip that Sudinia Johnson was bringing seven keys of Columbia's major non-coffee export from Chicago, and would be transporting it in his van. He went out that night and attached a battery-powered GPS tracking device to the undercarriage of Johnson's van. He tracked Johnson's movements over the next five days, and that resulted in Johnson's arrest and conviction for drugs. Of course, the whole thing gets thrown out because the US Supreme Court, in US v. Jones (discussed here), held that police needed a warrant to attach a GPS device to a car, right?
The placement of the GPS on Johnson's van took place in 2008, four years before Jones was decided. In fact, Johnson's case seemed destined to provide the answer, at least in Ohio, to the issue resolved in Jones. The 12th District affirmed Johnson's conviction, holding that the placement of a GPS device wasn't a search within the meaning of the 4th Amendment, in 2010. The Ohio Supreme Court accepted jurisdiction on that question the following year, but then Jones came down. The OSC bounced it back to the trial court for application of Jones. The trial court and the court of appeals found that attaching the device violated the 4th Amendment -- Jones dictated that result -- but applied the good faith exception and upheld admission of the evidence. And here we are.
Not for long; two months ago, in State v. Johnson, the Supreme Court concurred in that result, finding that Hackney was acting in reliance upon binding precedent, and therefore was entitled to a good faith belief that he didn't need a warrant.
The precedent for the "binding precedent" approach is Davis v. US. Davis was convicted after a search of his car revealed a gun, but while his appeal was pending, the Supreme Court handed down Arizona v. Gant, which overruled its 27-year-old decision in New York v. Belton and substantially limited the scope of car searches incident to arrest. In Johnson, the court held that the Supreme Court's decisions thirty years ago in US v. Knotts and US v. Karo provided binding precedent that warrantless use of a GPS was permissible.
It's not a perfect fit. In Knotts and Karo, the GPS device had been placed inside a container that the police wanted to track, not on the defendant's vehicle. Although the effect was roughly the same, the heightened intrusion on privacy portended by placement on the vehicle, especially when used to track it over a period of time, was at least contemplated by the courts; to Knott's suggestion that affirmance of the search in his case could result in "twenty-four hour surveillance of any citizen of this country, without judicial knowledge or supervision," the court tartly replied that "if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."
As Johnson notes, the widely prevailing view among the courts until Jones was that Knotts and Karo did indeed permit warrantless placement of a GPS on a car. Whether this was the "binding" precedent relied on in Davis is another story; note that Jones did not overrule either Knotts or Karo. This wasn't like State v. Hoffman (discussed here), the case decided the week before Johnson; there, the court held that Toledo's practice of issuing arrest warrants without a showing of probable cause violated the 4th Amendment, but found that the police could have relied on the warrant at issue because the 6th District had earlier specifically upheld the practice. None of the cases cited by the court for the "widely prevailing view" is from Ohio or the 6th Circuit. That courts in Maryland, New York, California, and Washington upheld a warrantless placement of a GPS is of some interest, but it certainly doesn't serve as binding precedent for Hackney's actions.
More troublesome is the Johnson court's determination that Hackney's good faith is established by "advice received from an assistant prosecuting attorney, from fellow members of law enforcement, and in training seminars that this practice did not implicate Fourth Amendment protections." Whatever might be said of those sources, they certainly did not provide a neutral and dispassionate perspective on the 4th Amendment. Allowing police officers a good faith argument for what their fellow officers tell them is sort of like allowing the students to decide what questions are going to be asked on the test.
Most troublesome of all is the further expansion of the good faith exception. As originally intended by the Supreme Court's 1984 decision in US v. Leon, that exception was intended to protect the police when they did what the 4th Amendment commanded them to do: get a warrant. As long as they did so, except in rare cases, they had the right to rely on the magistrate's determination of probable cause, and evidence wouldn't be excluded even where the magistrate got it wrong.
To be sure, Davis extends that beyond the warrant situation, but not substantially; there's not any difference between an officer relying on a magistrate's determination of probable cause, and a binding court decision that says he doesn't need a warrant. The police officers in Davis certainly had the right to rely on a United States Supreme Court decision, and that decision guided what they did. It's doubtful that Hackney even knew about Knotts or Karo, and the chances are nil that that he decided not to get a warrant because there was a case from the 7th Circuit saying that he didn't need one.
As I mentioned four years ago, ever since the Supreme Court's decision in Herring v. US (discussed here), Ohio prosecutors have been pushing the idea of a "good faith" exception for warrantless searches, an argument they pressed in Johnson: "that the exclusionary rule is intended only to deter deliberate, reckless, and grossly or systematically negligent police conduct." As I pointed out then, there's no basis for that argument, and adopting it presents a whole set of additional problems. Unfortunately, Johnson brings that day closer.