               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 14a0180n.06

                                       Case No. 13-1623                            FILED
                                                                                Mar 07, 2014
                         UNITED STATES COURT OF APPEALS                  DEBORAH S. HUNT, Clerk
                              FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                            )
                                                     )
       Plaintiff-Appellee,                           )
                                                     )       ON APPEAL FROM THE
v.                                                   )       UNITED STATES DISTRICT
                                                     )       COURT FOR THE WESTERN
BRIAN FISHER,                                        )       DISTRICT OF MICHIGAN
                                                     )
       Defendant-Appellant.                          )
                                                     )
                                                     )                           OPINION


BEFORE: GILMAN, COOK, and McKEAGUE, Circuit Judges.

       McKEAGUE, Circuit Judge.

       The question presented on appeal is whether the evidence derived from a warrantless

GPS automobile search should be excluded or whether the good-faith exception to the warrant

requirement applies. We determine that the police had an objectively reasonable good-faith

belief that their conduct was lawful and was sanctioned by then binding appellate precedent, and

thus, the exclusionary rule does not apply. We therefore AFFIRM the denial of Fisher’s motion

to suppress.

                                      I.       FACTS

       In May of 2010, the Drug Enforcement Agency and members of the Upper Peninsula

Substance Enforcement Team received information from a confidential informant that Brian
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United States v. Fisher

Scott Fisher (“Fisher”) was involved in the sale of cocaine and had suppliers in Lansing,

Michigan, and Chicago, Illinois. The informant also revealed that Fisher would drive to Lansing,

Michigan, in a white four-door Oldsmobile on May 28, 2010, and would return to Escanaba,

Michigan, the following day with a shipment of drugs. On May 28, 2010, police attached a

Global Positioning System (“GPS”) unit1 to the bumper of Fisher’s car. The battery-operated

GPS provided the vehicle’s location when contacted by a telephone signal so long as the GPS

was within range of a cell phone tower. Relying on a combination of GPS monitoring and

physical surveillance, the police confirmed that Fisher traveled to Lansing and later returned to

Escanaba.

       The next month, in early June 2010, the confidential informant again told police about an

impending drug run, this time to Chicago, Illinois. The informant described the vehicle that

would be used, who would be traveling, and the dates of the trip. The events that unfolded

corroborated the informant’s tip. Officers observed Fisher leave Escanaba on June 11, 2010.

Using ten to twelve vehicles, the police followed Fisher until he arrived in Chicago. The GPS

then indicated that Fisher’s vehicle stopped at a location in Plainfield, Illinois.      This was

corroborated by physical surveillance. When Fisher’s vehicle left the Chicago area several days

later, on June 14, 2010, the GPS informed police that the vehicle had started traveling

northbound. While the GPS does have a “live track” feature, which allows the police to track the

vehicle in real time, it was used sparingly because of the GPS’s limited battery life. Once Fisher


1
  The GPS unit used in this case was the Guardian 811. The unit can be affixed to an automobile
in approximately 30 seconds and is held in place using magnets. The unit’s battery lasts one to
ten days depending on use. The unit offers a “live track” function that provides, as the name
suggests, information regarding the vehicle’s location, speed, and direction of travel. This
information is stored on the GPS unit or can be transmitted by cell signal. Apart from the “live
track function,” the unit can also notify the police when the vehicle crosses a “fence” and thereby
enters or exits a predetermined geographic area.
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United States v. Fisher

entered Michigan, he was stopped. After a trained narcotics dog named “Rambo” alerted to the

presence of drugs in the vehicle, police conducted a warrantless search and discovered three

ounces of cocaine.

       Police arrested Fisher for possession with intent to deliver cocaine in violation of

21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Following his indictment, Fisher moved to suppress

the evidence seized from his vehicle, arguing that the warrantless use of the GPS device violated

the Fourth Amendment. After holding a hearing, the magistrate judge determined in a written

report on January 11, 2011, that the vehicle exception to the warrant requirement applied and

that there was probable cause to search the vehicle, referencing the information acquired from

the confidential informant, the physical surveillance, and the GPS unit.      The district court

adopted the magistrate’s recommendation and denied the motion to suppress on February 11,

2011. Fisher subsequently entered a guilty plea conditional upon the right to appeal the district

court’s denial of his motion to suppress evidence, and the district court sentenced him to

33 months of imprisonment.

       While Fisher’s appeal was pending, the Supreme Court decided United States v. Jones,

which held that “the Government’s installation of a GPS device on a target’s vehicle, and its use

of that device to monitor the vehicle’s movements, constitutes a ‘search.’” 132 S. Ct. 945, 949

(2012). In light of Jones, the parties jointly moved to remand the appeal to the district court.

This court granted the motion to remand on April 3, 2012, and vacated Fisher’s judgment of

conviction. See United States v. Buford, 632 F.3d 264, 269 (6th Cir. 2011) (internal quotation

marks omitted) (“It is firmly established that a decision of the Supreme Court declaring a new

constitutional rule applies to all similar cases pending on direct review.”) On remand, Fisher

renewed his motion to suppress, again arguing that the use of the GPS violated the Fourth


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Amendment and that any evidence resulting from the illegal search should be excluded.

Following briefing and a hearing, at which several officers testified that they had received advice

from prosecutors and training from the Drug Enforcement Agency and other police agencies

indicating that the warrantless use of GPS was permitted, the magistrate recommended that the

good-faith exception to the exclusionary rule should be applied. The district court adopted the

recommendation and denied the motion to suppress on January 18, 2013. As Fisher did not wish

to withdraw his conditional guilty plea, the district court resentenced him to time served. Fisher

appeals the denial of his motion to suppress.

                                     II.        ANALYSIS

       “The grant or denial of a motion to suppress is a mixed question of fact and law. On

appeal, we review the district court’s findings of fact for clear error and its conclusions of law de

novo.” United States v. Ellis, 497 F.3d 606, 611 (6th Cir. 2007) (citation omitted).

       The Fourth Amendment protects the “right of the people to be secure in their persons,

houses, papers, and effects against unreasonable searches and seizures.” In Jones, the Supreme

Court, relying on common-law trespass doctrine, determined that the use of a GPS to monitor a

vehicle constituted a search under the Fourth Amendment.2 Jones, 132 S. Ct. at 949. The

question presented on appeal is whether the good-faith exception to the exclusionary rule applies

where the police rely on then-binding precedent that upholds the constitutionality of a police

practice that is later overruled by the Supreme Court. As suppression in such circumstances

would neither deter police misconduct nor improve public safety, and consistent with Davis v.

United States, 131 S. Ct. 2419, 2426 (2011), we find that the good-faith exception applies.


2
  The Court did not consider whether the search would have been considered “reasonable” if
supported by reasonable suspicion or probable cause because this was not raised by the
Government before the lower court. Jones, 132 S. Ct. at 954.
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   A. The Exclusionary Rule

          Evidence that has been obtained in violation of the Fourth Amendment may be subject to

exclusion at trial. As the Supreme Court has made clear, however, “[e]xclusion is not a personal

constitutional right” but is intended “to deter future Fourth Amendment violations.” Davis, 131

S. Ct. at 2426. Because “[e]xclusion exacts a heavy toll on both the judicial system and society

at large,” not all violations of the Fourth Amendment result in the exclusion of evidence. Id. at

2427. “[E]xclusion has always been our last resort, not our first impulse.” Herring v. United

States, 129 S. Ct. 695, 700 (2009) (internal citation and quotation marks omitted) (emphasis

added).     To assess whether exclusion is demanded, a “rigorous weighing of [] costs and

deterrence benefits” is necessary. Davis, 131 S. Ct. at 2427. In particular, because the extent to

which the exclusionary rule is justified by these deterrence principles varies with the culpability

of the law enforcement conduct, the cost-benefit analysis should focus on the “flagrancy of the

police misconduct” and on whether the police misconduct was “deliberate, reckless, or grossly

negligent conduct, or in some circumstances recurring or systemic negligence.” Herring, 129 S.

Ct. at 701–02. When police act in good faith, however, “conduct[ing] a search in objectively

reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” Davis,

131 S. Ct. at 2434.

   B. Officers Acted in Good Faith When They Utilized the GPS Tracker

          At the time of the disputed GPS surveillance, the Supreme Court had strongly indicated,

and the Sixth Circuit and three other circuits had held, that the warrantless use of electronic

tracking devices was permissible. Given this uniform authority, the police conduct here was in

good faith.




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       Before turning to the relevant Sixth Circuit case law, we briefly review the pre-Jones

Supreme Court precedent. In United States v. Knotts, 103 S. Ct. 1081, 1087 (1983), the Supreme

Court held that the monitoring of an electronic tracking device, such as a “beeper,” that had been

installed on a container with the consent of the then-owner, did not constitute a search in

violation of the Fourth Amendment. “Nothing in the Fourth Amendment prohibited the police

from augmenting the sensory faculties bestowed upon them at birth with such enhancement as

science and technology afforded them in this case.” Id. at 1086. The next year in United States

v. Karo, 104 S. Ct. 3296, 3301–02 (1984), the Supreme Court further elaborated, in relevant part,

that the installation of a beeper in a container with the consent of the original owner did not

violate the Fourth Amendment when the container was later delivered to a buyer who had no

knowledge of the presence of the beeper. Importantly, the Court in its analysis discounted the

relevance of the physical trespass that occurred when the beeper was installed, indicating that “a

physical trespass is only marginally relevant to the question of whether the Fourth Amendment

has been violated.” Id. at 3302. Taken together, Knotts and Karo strongly suggested that the

warrantless installation and monitoring of a tracking device to follow an individual in public

spaces was permissible.

       Some appellate courts have taken this a step further, holding that Knotts and Karo

actually authorized the warrantless use of GPS devices and therefore are themselves a basis for

asserting the good-faith exception. See United States v. Aguilar, 737 F.3d 251, 261–62 (2d Cir.

2013) (finding that police could reasonably have concluded, pre-Jones and based on Knotts and

Karo, that a warrant was not needed to place a GPS device on a vehicle and that the good-faith

exception to the warrant rule applied). We need not go that far here because at the time of the

search the Sixth Circuit had already approved the police conduct.


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       In United States v. Forest, 355 F.3d 942 (6th Cir. 2004),3 police officers dialed a

suspected drug trafficker’s phone, without allowing it to ring, and tracked him on public roads by

identifying which cell phone towers were being “pinged.” This court upheld the practice, finding

that the police did not conduct a search under the Fourth Amendment when they obtained the

cell-site data and thereby identified the defendant’s location. Id. at 951–52. As this court

explained, “[the defendant] had no legitimate expectation of privacy in the cell-site data because

the DEA agents could have obtained the same information by following Garner’s car.” Id. at

951. Our decision in Forest was consistent with this court’s prior determination in United States

v. Cassity, 720 F.2d 451, 455 (6th Cir. 1983) (indicating that beepers may be used to track

individuals in public places but not in private areas like homes), vacated, 468 U.S. 1212 (1984).

       While Forest and Cassity dealt with cell phones and beepers, not GPS, the cases clearly

indicated that the warrantless use of electronic tracking devices was permissible.4            Put

differently, our precedent on the constitutionality of warrantless tracking was unequivocal. See

Buford, 632 F.3d at 276 n.9. Obviously, the technological device in the present case is not

exactly the same as that used in Forest, but the effect it has is nearly identical: police used the


3
  The judgment of sentence in Forest, was later vacated by Garner v. United States, 543 U.S.
1100 (2005), and remanded for further consideration in light of United States v. Booker, 125 S.
Ct. 738, 756 (2005) (holding that “[a]ny fact (other than a prior conviction) which is necessary to
support a sentence exceeding the maximum authorized by the facts established by a plea of
guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a
reasonable doubt”). The Supreme Court’s one paragraph decision in Garner did not address the
Fourth Amendment concerns or the overarching judgment in Forest, which therefore remained
binding authority.
4
  The only other meaningful difference between Forest and the present case is the absence of a
physical trespass. In Forest, the police did not have to attach the tracking device to the
defendant’s vehicle. But as previously discussed, prior to Jones, the Supreme Court’s
jurisprudence had downplayed the relevance of a physical trespass. “[A] physical trespass is
only marginally relevant to the question of whether the Fourth Amendment has been violated.”
Karo, 104 S. Ct. at 3302. A reasonable officer would not have been able to anticipate this shift
in the Supreme Court’s Fourth Amendment jurisprudence.
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defendant’s cell phone in Forest like a GPS tracker to identify the defendant’s location. See

Forest, 355 F.3d at 948 (“[Defendant] contends that the DEA’s use of cell-site data effectively

turned his cellular phone into a tracking device, violating his rights under . . . the Fourth

Amendment.”). This is again precisely what the police did here. Officers heavily relied on

physical surveillance to follow Fisher and used the GPS device to sporadically identify the

defendant’s location or to be informed when he had crossed certain preset geographic

boundaries.

       None of this is to discount the possible differences between GPS devices and their

technological predecessors. GPS devices clearly have capabilities that older tracking devices

lack. But these differences are not relevant to the present case, and “[i]nsofar as respondent’s

complaint appears to be simply that scientific devices such as the beeper enabled police to be

more effective in detecting crime, it simply has no constitutional foundation.” Knotts, 103 S. Ct.

at 1086; see also United States v. Cuevas-Perez, 640 F.3d 272, 278 (7th Cir. 2011) (Flaum, J.,

concurring) (“A GPS device works differently than a beeper, but nothing inheres in the

technology to take it out of Knotts’s holding.”), vacated, 132 S. Ct. 1534 (2012). Thus, although

a GPS device could be used as part of a more extensive governmental surveillance program that

would be sufficiently distinguishable to make prior precedent inapposite, the facts of the present

case are a far cry from that Orwellian vision.

       Other circuits have similarly held that pre-Jones cases, authorizing the use of tracking

devices like beepers, provided binding authority for the warrantless use of GPS trackers. As

such, officers relying on these earlier cases were still within the scope of the good-faith safe

harbor, even though the technology described by the cases was not exactly the same. See United

States v. Ransfer, -- F.3d --, 2014 WL 292379, *5–7 (11th Cir. Jan. 28, 2014) (holding that prior


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cases permitting the warrantless use of a beeper constituted binding precedent for purpose of

warrantless GPS tracking); United States v. Smith, 741 F.3d 1211, 1218–25 (11th Cir. 2013)

(similar); United States v. Sparks, 711 F.3d 58, 66–67 (1st Cir. 2013) (similar); United States v.

Andres, 703 F.3d 828, 834–35 (5th Cir. 2013) (similar); United States v. Pineda-Moreno, 688

F.3d 1087, 1090–91 (9th Cir. 2012) (similar). Our holding today is thus consistent with our

sister circuits.

        We also observe that at the time the GPS tracking in the present case took place, every

other circuit to have considered the issue had uniformly upheld the constitutionality of the

practice.5 More specifically, the Seventh and Ninth Circuits had determined that use of a GPS

tracker did not require a warrant, and the Eighth Circuit had indicated that use of a GPS tracker

without a warrant was permissible for a reasonable period of time so long as the police have

“reasonable suspicion.” See United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010),

vacated, 132 S. Ct. 1533 (2012); United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010);

United States v. Garcia, 474 F.3d 994, 997–99 (7th Cir. 2007); United States v. McIver, 186 F.3d

1119, 1126–28 (9th Cir. 1999).

        Finally, we note that the officers conducting the search conformed to the consistent

training and advice that they received from federal and state law enforcement authorities.

Officers testified at the suppression hearing that they believed their conduct was lawful based

5
  Fisher directs our attention to the D.C. Circuit’s determination in United States v. Maynard,
615 F.3d 544 (D.C. Cir. 2010), holding that GPS tracking was a Fourth Amendment search.
Maynard was decided in August 2010, after the search in this case took place, and therefore
could not have placed the officers on notice that there was divided precedent on the
constitutionality of a GPS search. Additionally, if we were to consider Maynard, we would also
be obliged to note that both the Fifth and the Eleventh Circuits, after the search in the present
case took place but prior to Jones, held that a GPS search did not require a warrant. See United
States v. Hernandez, 647 F.3d 216, 220–21 (5th Cir. 2011); United States v. Smith, 387 F. App’x
918, 921 (11th Cir. 2010) (per curiam). Thus, prior to Jones, the Fifth, Seventh, Eighth, Ninth,
and Eleventh Circuits had all found that the police conduct in the present case was lawful.
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upon Drug Enforcement Agency training, police trainings, and conversations with prosecutors.

The existence of police training indicating that certain conduct is lawful does not make the

conduct such, nor does it prevent a court from exercising the exclusionary rule. A ruling to the

contrary would shield officers from punishment even for flagrant misconduct. But, similarly, the

fact that the officers received consistent advice from multiple authorities that correctly reflected

the unanimous understanding of multiple circuit courts should not be ignored. It again goes to

the broader impression that the officers acted in good faith and in justifiable reliance upon the

training that they received.

       In light of this overwhelming authority, there is no indication in the present case that the

police acted in bad faith or that their conduct was “deliberate, reckless, or grossly negligent.”

Davis, 131 S. Ct. at 2427 (internal quotation marks omitted). At the time the police placed the

tracking device on Fisher’s vehicle, the training and guidance provided to these officers by

various police agencies and prosecutors all indicated that such conduct was consistent with the

Constitution; no circuit authority had indicated that the use of a GPS tracker was

unconstitutional, and three circuits had held that such conduct was lawful; the relevant Supreme

Court case law had indicated such a practice was lawful; and our precedent also provided

binding authority permitting such conduct. These are not the type of circumstances that warrant

the application of the “bitter pill” that is the exclusionary rule. As it is apparent that the police

acted in reasonable, good-faith reliance and that their conduct was lawful, the exclusionary rule

does not apply.

                                  III.       CONCLUSION

       For the reasons provided above, we AFFIRM the district court’s denial of Fisher’s

motion to suppress.


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