[Cite as State v. Henry, 2012-Ohio-4748.]




                                 IN THE COURT OF APPEALS OF OHIO
                                    SECOND APPELLATE DISTRICT
                                       MONTGOMERY COUNTY

STATE OF OHIO

        Plaintiff-Appellee

v.

CHRISTOPHER D. HENRY

        Defendant-Appellant


Appellate Case No. 25007

Trial Court Case No. 11-CR-829


(Criminal Appeal from
(Common Pleas Court)
                                              ...........

                                              OPINION

                          Rendered on the   12th   day of   October   , 2012.

                                              ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County
Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West
Third Street, Dayton, Ohio 45422
        Attorney for Plaintiff-Appellee

JESSICA R. MOSS, Atty. Reg. #0085437, 2233 Miamisburg-Centerville Road, Dayton, Ohio 45459
      Attorney for Defendant-Appellant

                                            .............

FAIN, J.

        {¶ 1}     Defendant-appellant Christopher D. Henry appeals from his conviction and sentence,
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following a no-contest plea, for Receiving Stolen Property, in violation of R.C. 2913.51(A), a felony of the

fourth degree, and for Possession of Criminal Tools, in violation of R.C. 2923.24(A), a felony of the fifth

degree. Henry contends that the trial court erred in overruling his motion to suppress evidence obtained

by means of the placing of a GPS tracking device on the underneath of a car he was driving, without a

warrant. Henry relies upon United States v. Jones, 565 U.S. ____, 132 S.Ct. 945, 181 L.Ed.2d 911

(2012).

          {¶ 2}   The State does not concede that under Jones the police were required to obtain a warrant

in order to place the GPS tracking device. But the State does not argue this point; the State argues that the

good-faith exception to the exclusionary rule applies because the police officer placing the device did so in

objectively reasonable reliance upon non-binding judicial authorities in other jurisdictions. The State did

not argue good faith at the suppression hearing, and no evidence was presented at the hearing that the

officer who placed the GPS device did so in reliance upon judicial authorities. Moreover, when Henry

attempted to question the police officer concerning whether the police officer believed that he had the

authority to place the GPS device without a warrant, an objection to the question was sustained upon the

ground that it was not relevant.

          {¶ 3}   The State relies upon Davis v. United States, ____ U.S. ____, 131 S.Ct. 2419, 180

L.Ed.2d 285 (2011), which holds that a police officer’s reliance upon binding judicial authority is

objectively reasonable, even when that authority is subsequently reversed or overruled. The State argues

that the result should be the same even if there is non-binding, persuasive judicial authority to support the

police officer’s actions. But the opinion in Davis expressly distinguishes its holding from situations where

the question of the lawfulness of the police officer’s action remains open in the governing jurisdiction.

131 S.Ct. 2433.

          {¶ 4}   We agree with Henry that a warrant was required for the placing of the GPS tracking

device upon the car he was driving, and that the evidence obtained as a result of the placing of that device

should have been suppressed. Accordingly, the judgment of the trial court is Reversed, and this cause is
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Remanded for further proceedings.



                               I. The Placing of the GPS Tracking Device

         {¶ 5}     Centerville Police Officer Daniel Osterfeld was aware that a number of thefts had been

occurring at car dealerships on Loop Road, in Centerville. Osterfeld knew that Henry had been involved

previously in thefts from car dealerships. Osterfeld knew that Henry had been released from prison in

May 2010.

         {¶ 6}     When Osterfeld learned that Henry had been arrested on an outstanding traffic warrant

and that the car he was driving, which he had previously been observed driving, had been towed, Osterfeld

decided to place a GPS tracking device on the car. Henry did not own the car.

         {¶ 7}     Osterfeld went to the lot where the car had been towed, and identified himself as a police

officer. He asked to see the car. Osterfeld placed a GPS tracking device, and a supplemental battery

pack, on the underneath of the car. Both the tracking device and the battery pack were attached to the car

magnetically; they were not otherwise attached to the car. The tracking device provided the location and

speed of the car, but not any other information concerning the car.

         {¶ 8}     For several weeks while Osterfeld and other officers periodically checked the information

from the tracking device, nothing of note occurred. Then, on the night of December 28-29, 2010, the car

traveled to Columbus, Ohio, and back. Osterfeld was aware that car dealerships in Columbus and its

suburbs had been experiencing thefts. Osterfeld decided to go to the location of the car.

         {¶ 9}     Osterfeld caught up with the car in front of a convenience store on North Main Street, in

Dayton. Henry and another man walked out of the front door of the store and spoke for a couple minutes.

Then Henry opened up the back of the car and removed three large chrome truck tires, which were wheeled

in to the store.

         {¶ 10} Henry left and came back with five more wheels. At that point, he was arrested.
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                                     II. The Course of Proceedings

        {¶ 11} Henry was charged by indictment with Receiving Stolen Property and Possession of

Criminal Tools. He moved to suppress the evidence obtained when he was arrested, contending that it

was obtained as the result of an unlawful search and seizure.         Specifically, he contended that the

placement and monitoring of the GPS tracking device constituted a search, that the search was unlawful

because it was performed without a warrant, and that the evidence was obtained as a result of that unlawful

search, and should therefore be excluded.

        {¶ 12} After a hearing, the trial court overruled Henry’s motion to suppress. Thereafter, he pled

no contest to both charges, was convicted, and was sentenced accordingly. From his conviction and

sentence, Henry appeals.



            III. The Placing and Monitoring of the GPS Tracking Device Was a Search,

                  and Because it Was Without a Warrant, it Was Unlawful, and the

                    Evidence Obtained as a Result Should Have Been Suppressed

        {¶ 13} Henry’s sole assignment of error is as follows:

                THE TRIAL COURT ERRED IN DENYING THE MOTION TO SUPPRESS

        WHEN IT RULED THAT THE WARRANTLESS PLACEMENT OF THE GPS

        DEVICE ON THE UNDERCARRIAGE OF THE VEHICLE FREQUENTLY DRIVEN

        BY APPELLANT DID NOT CONSTITUTE A SEARCH UNDER THE FOURTH

        AMENDMENT TO THE UNITED STATED [sic] CONSTITUTION OR UNDER

        SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.

        {¶ 14} Henry relies upon United States v. Jones, supra. The State acknowledges that Jones

holds that the placement of a GPS tracking device requires a warrant, but contends that the good-faith

exception to the exclusionary rule applies. The State relies upon Davis v. United States, supra.
                                                                                                                      5


                   {¶ 15} We note preliminarily that the State never raised the good-faith-exception issue in the

           trial court, before, during, or after the suppression hearing. In fact, when Henry attempted to elicit

           testimony from Osterfeld germane to that subject, the State objected, and its objection was sustained on the

           ground of relevance:

                           Q. Do these GPS devices, do you believe that law enforcement should have the

                   authority to install these without –

                           MS. DENSLOW [representing the State]: Objection.

                           BY MR. COMBS [representing Henry]: – a warrant?

                           THE COURT: Sustained.

                   MR. COMBS: Your Honor, he – he – he says he uses them. I’m just asking his opinion about

           using them.

                   THE COURT: His opinion is meaningless. It’s my decision.

           {¶ 16} More importantly, we conclude that the State’s reliance upon Davis is misplaced. The State recognizes

that the holding in that case was that when a police officer relies upon binding judicial authority upholding the lawfulness

of the search he undertakes, his reliance is objectively reasonable, and therefore in good faith, despite the fact that the

judicial authority upon which he relies is subsequently reversed or overruled. The State argues that the holding in Davis

ought to extend to a police officer’s reliance upon persuasive, non-binding judicial authority. The State then points to a

number of judicial decisions, none of which were binding in this jurisdiction, that upheld warrantless use of GPS tracking

devices.

           {¶ 17} The opinion in Davis, itself, belies the State’s position. Justice Alito wrote the opinion of the Court, in

which five other justices concurred. The defendant in that case, Davis, argued that “applying the good-faith exception to

searches conducted in reliance on binding precedent will stunt the development of Fourth Amendment law. With no

possibility of suppression, criminal defendants will have no incentive * * * to request that courts overrule precedent.” 131

S.Ct. 2432. In response to this argument, Justice Alito wrote:

                   And in any event, applying the good-faith exception in this context will not prevent judicial
                                                                                                                      6


        reconsideration of prior Fourth Amendment precedents. In most instances, as in this case, the precedent

        sought to be challenged will be a decision of a Federal Court of Appeals or State Supreme Court. But a

        good-faith exception for objectively reasonable reliance on binding precedent will not prevent review and

        correction of such decisions. This Court reviews criminal convictions from 12 Federal Courts of Appeals,

        50 state courts of last resort, and the District of Columbia Court of Appeals. If one or even many of these

        courts uphold a particular type of search or seizure, defendants in jurisdictions in which the question

        remains open will still have an undiminished incentive to litigate the issue. This Court can then grant

        certiorari, and the development of Fourth Amendment law will in no way be stunted. Id., at 2433.

        (Footnote omitted, emphasis added.)

        {¶ 18} From the italicized portion of Justice Alito’s opinion for the United States Supreme Court in Davis, it is

clear that the holding in that case, upon which the State relies in this case, has no application in a situation, like the one

before us, where the jurisdiction in which the search was conducted has no binding judicial authority upholding the search.

        {¶ 19} In a footnote in its brief, the State notes that it is not conceding that the Fourth Amendment was violated

in this case because United States v. Jones, supra, leaves open the question whether a warrantless use of a GPS tracking

device is lawful if the police have probable cause to support the search. Significantly, the reason the United States

Supreme Court did not address that issue in Jones is because it was not raised in the trial court, and was therefore forfeited.

 132 S.Ct. 954.

        {¶ 20} Here, also, the State’s argument that the placement of the GPS tracking device, if it constituted a search,

was reasonable despite the lack of a warrant, was not made in the trial court. Henry filed a Supplemental Memorandum in

Support of [his] Motion to Suppress, in which he identified the issues as follows:

                  I. Whether law enforcement officers are required to obtain a warrant prior to placing a Global

        Positioning System (GPS) tracking device on a vehicle located on private property; and

                  II. Whether law enforcement officers are required to obtain a warrant prior to monitoring and

        collecting data from that GPS after placing it on that vehicle.

        {¶ 21} Neither at the suppression hearing, nor in its memorandum in opposition to the motion to suppress, did the
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State argue that even if the placement and monitoring of the GPS tracking device constituted a search for Fourth

Amendment purposes, it was based upon probable cause, and therefore lawful. The State’s memorandum argued solely

that the placement of the GPS tracking device did not constitute a search.

        {¶ 22} The trial court wrote a well-reasoned decision overruling the motion to suppress. (It did not, of course,

have the benefit of the decision of the United States Supreme Court in United States v. Jones.) Unsurprisingly, in view of

the State’s failure to argue the point, the trial court did not consider, in the alternative, whether the placement of the GPS

tracking device, if it constituted a search, was nevertheless supported by probable cause, and therefore lawful.

        {¶ 23} We conclude, therefore, just as the United States Supreme Court similarly concluded in Jones, that the

State has forfeited an argument that the placement of the GPS tracking device was a lawful search, even though it was

warrantless. The suppression hearing was not made up on that issue.

        {¶ 24} Henry’s sole assignment of error is sustained.



                                                      IV. Conclusion

                {¶ 25} Henry’s sole assignment of error having been sustained, the judgment of the trial court is

        Reversed, and this cause is Remanded for further proceedings consistent with this opinion.

                                                       .............

        GRADY, P.J., and DONOVAN, J., concur.



        Copies mailed to:

        Mathias H. Heck
        Andrew T. French
        Jessica R. Moss
        Hon. Michael Tucker
