[Cite as State v. Johnson, Slip Opinion No. 2014-Ohio-5021, 2014-Ohio-5021.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.


                         SLIP OPINION NO. 2014-OHIO-5021
            THE STATE OF OHIO, APPELLEE, v. JOHNSON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
     may be cited as State v. Johnson, Slip Opinion No. 2014-Ohio-5021.]
Criminal law—Fourth Amendment—Searches—Good-faith exception to the
        exclusionary rules—GPS tracking device—Binding appellate precedent—
        Good-faith, objectively reasonable belief that placing GPS tracking device
        on a vehicle, based on binding appellate precedent, would not have an
        appreciable effect on deterring violations of the Fourth Amendment.
(No. 2013-1973—Submitted September 24, 2014—Decided November 13, 2014.)
               APPEAL from the Court of Appeals for Butler County,
                         No. 2012-11-235, 2013-Ohio-4865.
                                   _______________
        O’DONNELL, J.
        {¶ 1} Sudinia Johnson appeals from a judgment of the Twelfth District
Court of Appeals which affirmed his conviction for trafficking in cocaine and
held that the good-faith exception to the exclusionary rule permitted the
admission of evidence obtained from a global-positioning-system (“GPS”)
                            SUPREME COURT OF OHIO




tracking device that Detective Mike Hackney had placed on Johnson’s vehicle
without obtaining a search warrant.
       {¶ 2} The United States Supreme Court crafted the exclusionary rule to
deter violations of the rights guaranteed by the Fourth Amendment to the United
States Constitution, but it has recognized that the costs to society outweigh any
deterrent benefit of excluding evidence obtained in a search that appeared to
police to be constitutional. Thus, in Davis v. United States, ___ U.S. ___, 131
S.Ct. 2419, 180 L.Ed.2d 285 (2011), the court declined to apply the exclusionary
rule to a search conducted in objectively reasonable, good-faith reliance on
binding appellate precedent that was later overruled.     This exception to the
exclusionary rule—the good-faith reliance on precedent—is at issue here.
       {¶ 3} In October 2008, when Detective Hackney attached a GPS tracking
device to Johnson’s van, two cases from the United States Supreme Court—
United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), and
United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984)—
supported Hackney’s objectively reasonable belief that attaching a tracking device
to a vehicle did not violate any reasonable expectation of privacy that Johnson
had, either in the undercarriage of his van or in his whereabouts while driving on
public streets and highways. In addition, Hackney relied in good faith on 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.
       {¶ 4} In United States v. Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d
911 (2012), decided four years after Hackney put the GPS tracking device on
Johnson’s van, the court held that the attachment of such a device to an
individual’s vehicle is a search within the meaning of the Fourth Amendment.
Notwithstanding Jones, which clarifies the law going forward, because Knotts and
Karo served as binding appellate precedent to justify placing GPS tracking




                                        2
                                 January Term, 2014




devices on suspects’ vehicles without obtaining a search warrant, the good-faith
exception to the exclusionary rule applies, and therefore, exclusion of the
evidence obtained by police in this case is not warranted.
       {¶ 5} Accordingly, we affirm the judgment of the appellate court.
                          Facts and Procedural History
       {¶ 6} In October 2008, Detective Hackney of the Butler County Sheriff's
Department received information from an informant that Johnson had recently
sold multiple kilos of cocaine, that he would soon travel to Chicago to obtain
seven more kilos, and that he would transport the cocaine in a van. Hackney had
received similar information from two other informants in the six months prior to
this, and he knew that Johnson owned a white Chevy van.
       {¶ 7} Relying on his understanding that a search warrant was not needed,
Hackney did not obtain a warrant before he attached a GPS tracking device to
Johnson’s van. Rather, on the evening of October 23, 2008, he and two other
officers went to Johnson’s neighborhood in Hamilton, Ohio, and while the other
officers seized Johnson’s trash, Hackney located Johnson’s van, which was
parked on the street, and attached a battery-powered GPS tracking device to its
undercarriage. The device was “probably no bigger than a pager” and was sealed
in a magnetic case, and it did not need to be hard wired to the van’s electrical
systems. It permitted Hackney to remotely track and record the van’s movements
in real time using a secure website.
       {¶ 8} The van stayed near Hamilton for five days, but on October 28,
2008, Hackney logged onto the website and located the van in a parking lot at a
shopping center in Calumet City, Illinois. He then arranged for Rudy Medellin, a
retired Immigration and Customs officer living in the Chicago area, to go to the
shopping center and verify that Johnson’s van was there.
       {¶ 9} Medellin located the van, used the license plate to confirm it
belonged to Johnson, and followed it to a nearby residence in Chicago. Medellin




                                         3
                            SUPREME COURT OF OHIO




watched Johnson walk out of the residence carrying a package and enter the van.
Medellin then saw the garage door open and another man, later identified as Otis
Kelly, drive out in a passenger car bearing Ohio license plates. Medellin followed
both vehicles as they traveled toward Ohio, and Hackney monitored the van’s
movements using the GPS device.
       {¶ 10} The car and van separated before crossing into Ohio. Hackney
directed officers to stop the vehicles “if they were able to find probable cause to
make a stop.” Deputy Daren Rhoads saw Johnson improperly cross lanes to make
a turn and pulled the van over. After officers removed Johnson from the vehicle
at gunpoint, he consented to a search of the van, but no drugs were found. Other
officers stopped Kelly for following too closely behind another vehicle. A search
of Kelly’s car revealed a concealed compartment in the trunk; officers used a key
from Johnson’s key ring to open it and found seven kilograms of cocaine.
       {¶ 11} A grand jury indicted Johnson for one count of trafficking in
cocaine and one count of possession of cocaine, each with a major-drug-offender
specification, as well as one count of having a weapon while under a disability.
He moved to suppress the evidence against him, asserting that the warrantless
placement and monitoring of the GPS tracking device on his van violated his
Fourth Amendment rights.
       {¶ 12} At the suppression hearing, Hackney testified that he had attended
training seminars on police use of GPS tracking devices and had consulted with
assistant prosecutor Dave Kash, fellow officers and supervisors, and other law-
enforcement agencies about the legality of using GPS devices. He stated that “it
was kind of common knowledge among other drug units or talking to other drug
units that as long as the GPS is not hard wired, as long as it is placed on—in a
public area, removed in a public area, it is basically a tool or an extension of
surveillance.”




                                        4
                                  January Term, 2014




       {¶ 13} The trial court denied the motion to suppress. Johnson pleaded no
contest to trafficking in cocaine and possession of cocaine with major-drug-
offender specifications, and at a bench trial, the court acquitted him of having a
weapon while under a disability. The court merged the convictions as allied
offenses and imposed an aggregate 15-year sentence.
       {¶ 14} The Twelfth District Court of Appeals affirmed the denial of his
motion to suppress, holding that the placement of a GPS tracking device on a
vehicle is not a search for purposes of the Fourth Amendment. 190 Ohio App.3d
750, 2010-Ohio-5808, 944 N.E.2d 270 (12th Dist.), ¶ 47.
       {¶ 15} We accepted Johnson’s discretionary appeal. 128 Ohio St.3d 1425,
2011-Ohio-1049, 943 N.E.2d 572. In line with the United States Supreme Court’s
decision in Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911, which held that
attaching a GPS tracking device to an individual’s vehicle is a search within the
meaning of the Fourth Amendment, we vacated the court of appeals’ judgment
and remanded the matter to the trial court for application of Jones. 131 Ohio
St.3d 301, 2012-Ohio-975, 964 N.E.2d 426.
       {¶ 16} On remand, the trial court found that placing the GPS tracking
device on Johnson’s van violated the Fourth Amendment. However, it declined to
suppress the evidence against Johnson based on the good-faith exception to the
exclusionary rule, concluding that “the deterrence benefit [of] exclusion in this
case of non-culpable, non-flagrant police conduct does not outweigh the heavy
costs of exclusion to society and the judicial system. * * * The Court finds that
the officers acted in good faith * * * and the evidence will be admitted at trial.”
       {¶ 17} Johnson again pleaded no contest to trafficking in cocaine and
possession of cocaine with major-drug-offender specifications, and the court
merged his convictions as allied offenses and sentenced him to ten years in prison.
       {¶ 18} The court of appeals affirmed, applying the good-faith exception in
“a case-by-case approach examining the culpability and conduct of law




                                          5
                            SUPREME COURT OF OHIO




enforcement.” 12th Dist. Butler No. 2012-11-235, 2013-Ohio-4865, 1 N.E.3d
491, ¶ 23. The court explained that “[a]s of October 23, 2008, no court had ruled
that the warrantless installation and monitoring of GPS devices on vehicles that
remained on public roadways was a violation of the Fourth Amendment,” federal
circuit courts had upheld the practice, and according to Knotts, 460 U.S. 276, 103
S.Ct. 1081, 75 L.Ed.2d 55, Johnson lacked a reasonable expectation of privacy in
his movements on public roads. Id. at ¶ 26. Thus, based on “the legal landscape,”
id. at ¶ 30, and Hackney’s good-faith attempts to determine the legality of
attaching a GPS tracking device to a vehicle, the appellate court concluded that
law enforcement had not exhibited any culpability in violating Johnson’s Fourth
Amendment rights, and the good-faith exception to the exclusionary rule therefore
precluded suppression of the drug evidence, id. at ¶ 31.
       {¶ 19} On appeal to this court, Johnson maintains that the United States
Supreme Court has not applied the good-faith exception to a police officer’s
reliance on a single conversation with a prosecutor and the prevailing
understanding of law enforcement. He argues that no binding appellate precedent
permitted the warrantless use of GPS tracking devices on vehicles in Ohio, and he
notes that cases from the Second, Eighth, Tenth, and Eleventh District Courts of
Appeals have held that the good-faith exception does not apply in the absence of
binding precedent from the appellate district, this court, the Sixth Circuit, or the
United States Supreme Court. He emphasizes that the good-faith exception to the
exclusionary rule has only been applied when a third party made a mistake that
invalidates the search, not, as here, when the officer conducting the search errs,
and that there is no evidence that Hackney was even aware of any caselaw
supporting his decision to install the GPS tracking device on the van. Johnson
argues that the police cannot rely in good faith on nonbinding case authority or a
prevailing understanding of the law when the question remains open in the
officer’s jurisdiction. He also suggests that the Twelfth District has created a new




                                         6
                                 January Term, 2014




exception to the exclusionary rule, shifting to him the burden to prove the bad
faith of police in order to suppress evidence obtained in violation of the
Constitution.
       {¶ 20} The state responds that the exclusionary rule is intended only to
deter deliberate, reckless, and grossly or systematically negligent police conduct,
but at the time of the search, no court had held that the Fourth Amendment
required a warrant before a GPS tracking device could be placed on a vehicle.
Rather, courts had construed Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d
55, which was then binding precedent, to permit the practice. According to the
state, the good-faith exception to the exclusionary rule applies, because Hackney,
based on consultations with a prosecutor and other police officers, had an
objectively reasonable good-faith belief that no warrant was needed, and a
reasonable officer could not have foreseen that the Supreme Court would rely on
a technical trespass to determine that a search had occurred. And the state asserts
that the search was reasonable, claiming no warrant was required to attach the
GPS tracking device, because the automobile exception to the warrant
requirement permitted a search of the van on a showing of probable cause.
       {¶ 21} Accordingly, this case concerns whether the good-faith exception
to the exclusionary rule applies in this case to preclude suppression of evidence
obtained through the use of a GPS tracking device without first obtaining a
warrant.
                               Law and Analysis
       {¶ 22} The Fourth Amendment to the United States Constitution states:


                The right of the people to be secure in their persons,
       houses, papers, and effects, against unreasonable searches and
       seizures, shall not be violated, and no warrants shall issue, but
       upon probable cause, supported by oath or affirmation, and




                                         7
                             SUPREME COURT OF OHIO




       particularly describing the place to be searched, and the persons
       or things to be seized.


       {¶ 23} The Supreme Court initially construed the Fourth Amendment to
protect against searches and seizures of the person and trespasses against private
property. It explained in Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29
L.Ed. 746 (1886), that the prohibition against unreasonable searches and seizures
protected a person’s “indefeasible right of personal security, personal liberty, and
private property,” id. at 630, and it relied on the principle rooted in English
common law that “ ‘every invasion of private property, be it ever so minute, is a
trespass,’ ”    id. at 627, quoting Entick v. Carrington, 95 Eng. Rep. 807
(K.B.1765).
       {¶ 24} In Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed.
944 (1928), the court continued the focus on the law of trespass when it
considered whether an early form of electronic surveillance—a wiretap—was a
search or seizure for purposes of the Fourth Amendment when police has not
trespassed on or against private property. It explained, “The amendment itself
shows that the search is to be of material things—the person, the house, his
papers, or his effects,” id. at 464, not listening to someone’s voice, and it
concluded that there is no Fourth Amendment violation “unless there has been an
official search and seizure of his person or such a seizure of his papers or his
tangible material effects or an actual physical invasion of his house ‘or curtilage’
for the purpose of making a seizure,” id. at 466. Using wiretaps attached to
telephone wires on public streets therefore was not a search, because “[t]here was
no entry of the houses or offices of the defendants.” Id. at 464.
       {¶ 25} And applying the trespass doctrine in Goldman v. United States,
316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942), the court upheld the police use
of a detectaphone to eavesdrop on conversations through the wall of an adjoining




                                          8
                                 January Term, 2014




office without trespassing on private property. Thus, as the court later explained
in Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001),
“well into the 20th century, [the court’s] Fourth Amendment jurisprudence was
tied to common-law trespass.”
       {¶ 26} But over the next 25 years, the court’s cases “increasingly
discarded fictional and procedural barriers rested on property concepts” and came
to “recognize[] that the principal object of the Fourth Amendment is the
protection of privacy rather than property.” Warden v. Hayden, 387 U.S. 294,
304, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967).
       {¶ 27} The court revisited the legality of wiretaps in Katz v. United States,
389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), a case involving the
government’s use of an electronic listening and recording device attached to the
outside of a public telephone booth. The court declared that “the underpinnings
of Olmstead and Goldman have been so eroded by our subsequent decisions that
the ‘trespass’ doctrine there enunciated can no longer be regarded as controlling,”
id. at 353, “[f]or the Fourth Amendment protects people, not places,” id. at 351.
It therefore held that “[t]he Government’s activities in electronically listening to
and recording the petitioner’s words violated the privacy upon which he
justifiably relied while using the telephone booth and thus constituted a ‘search
and seizure’ within the meaning of the Fourth Amendment.” Id. at 353.
       {¶ 28} The court later came to apply the analysis of Justice Harlan’s
concurrence in Katz, which explained that a Fourth Amendment violation occurs
when the government invades a person’s reasonable expectation of privacy.
California v. Ciraolo, 476 U.S. 207, 211, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986),
quoting Katz at 360 (Harlan, J., concurring) (“The touchstone of Fourth
Amendment analysis is whether a person has a ‘constitutionally protected
reasonable expectation of privacy’ ”).




                                         9
                            SUPREME COURT OF OHIO




                                Knotts and Karo
       {¶ 29} The Supreme Court applied these standards to the government’s
use of electronic tracking devices in United States v. Knotts, 460 U.S. 276, 103
S.Ct. 1081, 75 L.Ed.2d 55 (1983).        In that case, officers suspected Tristan
Armstrong of purchasing chloroform from the Hawkins Chemical Company in
Minneapolis, Minnesota, to manufacture illegal drugs, and with the company’s
consent, the officers arranged for an electronic beeper to be placed in the next
container of chloroform that Armstrong purchased. Using visual surveillance and
following radio signals emitted from the beeper, officers followed Armstrong to
the home of Darryl Petschen, who then drove the container across the Wisconsin
state line and eluded the pursuing agents. However, officers used the signals from
the beeper to trace the container to a secluded cabin occupied by Leroy Knotts,
and they obtained a search warrant, which disclosed a clandestine drug laboratory
in the cabin. The trial court denied Knotts’s motion to suppress, but the Eighth
Circuit Court of Appeals reversed, concluding that officers had violated Knotts’s
reasonable expectation of privacy.
       {¶ 30} The Supreme Court rejected this analysis, explaining:


              A    person   travelling   in   an   automobile   on    public
       thoroughfares has no reasonable expectation of privacy in his
       movements from one place to another. When Petschen travelled
       over the public streets he voluntarily conveyed to anyone who
       wanted to look the fact that he was travelling over particular roads
       in a particular direction, the fact of whatever stops he made, and
       the fact of his final destination when he exited from public roads
       onto private property.




                                         10
                                  January Term, 2014




Id. at 281-282. Although the court recognized that Knotts had a reasonable
expectation of privacy in his cabin, “no such expectation of privacy extended to
the visual observation of Petschen’s automobile arriving on his premises after
leaving a public highway, nor to movements of objects such as the drum of
chloroform outside the cabin in the ‘open fields.’ ” Id. at 282. The court noted:


               Visual surveillance from public places along Petschen’s
       route or adjoining Knotts’ premises would have sufficed to reveal
       all of these facts to the police. The fact that the officers in this case
       relied not only on visual surveillance, but on the use of the beeper
       to signal the presence of Petschen’s automobile to the police
       receiver, does not alter the situation. 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.
       {¶ 31} The next year, the Supreme Court decided United States v. Karo,
468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984).              In that case, Drug
Enforcement Administration (“DEA”) agents learned that James Karo, Richard
Horton, and William Harley had purchased 50 gallons of ether from a government
informant in Albuquerque, New Mexico. The informant suspected that the ether
would be used to extract cocaine from clothing imported into the United States,
and he permitted government agents to install a tracking beeper in one of the
containers before Karo picked it up. Using the beeper, agents traced the container
to various dwellings, to a specific locker in a commercial storage facility, and
then to a self-storage facility. From there, agents observed Gene Rhoads retrieve
the containers, and using visual surveillance and the beeper, they followed his




                                          11
                            SUPREME COURT OF OHIO




truck to a house in Taos, New Mexico. Officers watched this building and used
the beeper to confirm that the container remained inside, but when they observed
the windows open on a cold, windy day, they believed that the ether was being
used. The agents then obtained a warrant, and a search disclosed cocaine and
laboratory equipment inside.
       {¶ 32} The government indicted Karo, Horton, Harley, Rhodes, Michael
Steele, and Evan Roth, but the trial court suppressed the drug evidence on the
grounds that the initial warrant to install the beeper was invalid. The Ninth
Circuit Court of Appeals held that a violation of the Fourth Amendment occurred
when the can with the beeper was transferred to Karo, not when the beeper was
placed in the can.
       {¶ 33} On review, the Supreme Court held that the installation of the
beeper had not violated any Fourth Amendment interest of the suspects:


       The can into which the beeper was placed belonged at the time to
       the DEA, and by no stretch of the imagination could it be said that
       respondents then had any legitimate expectation of privacy in it.
       The ether and the original 10 cans, on the other hand, belonged to,
       and were in the possession of, [the informant], who had given his
       consent to any invasion of those items that occurred.


Id. at 711. The court emphasized that no search had occurred, because the
transfer of the container of ether conveyed no information that the suspect
intended to keep private. Nor had a seizure occurred:


       Although the can may have contained an unknown and unwanted
       foreign object, it cannot be said that anyone’s possessory interest
       was interfered with in a meaningful way. At most, there was a




                                       12
                                  January Term, 2014




       technical trespass on the space occupied by the beeper. The
       existence of a physical trespass is only marginally relevant to the
       question of whether the Fourth Amendment has been violated,
       however, for an actual trespass is neither necessary nor sufficient
       to establish a constitutional violation.


Id. at 712-713.
       {¶ 34} The constitutional violation occurred, the court explained, because
DEA agents had monitored the beeper while it was in places not open to visual
surveillance, “reveal[ing] a critical fact about the interior of the premises that the
Government is extremely interested in knowing and that it could not have
otherwise obtained without a warrant. * * * [T]he monitoring indicated that the
beeper was inside the house, a fact that could not have been visually verified.” Id.
at 715.   It concluded, “Indiscriminate monitoring of property that has been
withdrawn from public view would present far too serious a threat to privacy
interests in the home to escape entirely some sort of Fourth Amendment
oversight. * * * In sum, we discern no reason for deviating from the general rule
that a search of a house should be conducted pursuant to a warrant.” Id. at 716-
718.
                    Warrantless Use of GPS Tracking Devices
       {¶ 35} Although GPS tracking devices rely on different technology than
electronic beepers, courts nonetheless applied the principles articulated in Knotts
and Karo in determining whether the use of such a device implicated the
protections of the Fourth Amendment.
       {¶ 36} In United States v. McIver, 186 F.3d 1119 (9th Cir.1999),
overruled in part by United States v. Pineda-Moreno, 688 F.3d 1087, 1091 (9th
Cir.2012), the Ninth Circuit Court of Appeals rejected the argument that evidence
obtained following use of a GPS device to track McIver’s vehicle should be




                                         13
                             SUPREME COURT OF OHIO




suppressed because police committed a trespass in attaching the unit, and it held
that McIver had no reasonable expectation of privacy in the undercarriage of his
vehicle. Similarly, the Seventh Circuit Court of Appeals in United States v.
Garcia, 474 F.3d 994 (7th Cir.2007), cited Knotts and Karo in support of its
conclusion that attaching a GPS device to a vehicle did not constitute a search or a
seizure. State courts also determined that the warrantless use of a GPS device to
track a suspect did not violate Fourth Amendment protections. See, e.g., Stone v.
State, 178 Md.App. 428, 448, 941 A.2d 1238 (2008); People v. Weaver, 52
A.D.3d 138, 141-142, 860 N.Y.S.2d 223 (2008), reversed on state law grounds,
12 N.Y.3d 433, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009); State v. Jackson, 111
Wash.App. 660, 688, 46 P.3d 257 (2002), aff’d, 150 Wash.2d 251, 76 P.3d 217
(2003); People v. Zichwic, 94 Cal.App.4th 944, 956, 114 Cal.Rptr.2d 733 (2001).
       {¶ 37} And even after Hackney attached the GPS tracking device to
Johnson’s van in October 2008, courts continued to hold that the Fourth
Amendment did not require police to obtain a warrant before using a GPS device
to track a suspect’s vehicle. See, e.g., United States v. Hernandez, 647 F.3d 216,
220 (5th Cir.2011); United States v. Marquez, 605 F.3d 604, 610 (8th Cir.2010);
United States v. Smith, 387 Fed.Appx. 918, 921 (11th Cir.2010).
       {¶ 38} Only the District of Columbia Circuit Court of Appeals’ decision in
United States v. Maynard, 615 F.3d 544, 555 (D.C.Cir.2010)—entered almost two
years after the use of the GPS device in this case—broke this consensus and
concluded that police must obtain a warrant before using a GPS device to track a
suspect’s “movements 24 hours a day for 28 days as he moved among scores of
places, thereby discovering the totality and pattern of his movements from place
to place to place.” Id. at 558. And even there, the court distinguished Knotts
based only on the extensive duration of surveillance in that case.
       {¶ 39} The Supreme Court agreed to review the decision in Maynard in
Jones, ___ U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911, but rather than apply the




                                         14
                                 January Term, 2014




Katz standard and consider whether the government violated the accused’s
reasonable expectation of privacy, the court returned to the earlier Fourth
Amendment jurisprudence that was tied to common-law trespass, noting that “for
most of our history the Fourth Amendment was understood to embody a particular
concern for government trespass upon the areas (‘persons, houses, papers, and
effects’) it enumerates. Katz did not repudiate that understanding.” Id. at 950.
The court therefore concluded, “The Government physically occupied private
property for the purpose of obtaining information. We have no doubt that such a
physical intrusion would have been considered a ‘search’ within the meaning of
the Fourth Amendment when it was adopted.” Id. at 949. Thus, when police
attach a GPS tracking device to a suspect’s vehicle, it is a search implicating the
protections of the Fourth Amendment.
              The Exclusionary Rule and the Good-Faith Exception
       {¶ 40} In Weeks v. United States, 232 U.S. 383, 394, 34 S.Ct. 341, 58
L.Ed. 652 (1914), the Supreme Court announced the exclusionary rule, barring
the use of evidence secured by an unconstitutional search and seizure, and it
extended the exclusionary rule to the states in Mapp v. Ohio, 367 U.S. 643, 655,
81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). But exclusion of evidence for a violation
of the Fourth Amendment “is ‘not a personal constitutional right,’ nor is it
designed to ‘redress the injury’ occasioned by an unconstitutional search.” Davis,
__U.S.__, 131 S.Ct. at 2426, 180 L.Ed.2d 285, quoting Stone v. Powell, 428 U.S.
465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976). Rather, as the court explained
in Davis, the exclusionary rule’s “sole purpose * * * is to deter future violations
of the Fourth Amendment,” id. at 2426, and “[w]here suppression fails to yield
‘appreciable deterrence,’ exclusion is ‘clearly * * * unwarranted’ ” (ellipsis sic),
id. at 2427, quoting United States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49
L.Ed.2d 1046 (1976).




                                        15
                             SUPREME COURT OF OHIO




       {¶ 41} In Davis, the court considered whether to apply the exclusionary
rule when the police conduct a search in compliance with binding precedent that
is later overruled. Police arrested Stella Owens for driving while intoxicated and
Willie Davis, a passenger, for giving a false name, and officers relied on the
Eleventh Circuit’s interpretation of New York v. Belton, 453 U.S. 454, 101 S.Ct.
2860, 69 L.Ed.2d 768 (1981), to search the passenger compartment of Owen’s
vehicle. The officers found a firearm in Davis’s coat pocket, which resulted in his
conviction on a federal firearms charge. During the pendency of Davis’s appeal,
the Supreme Court decided Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173
L.Ed.2d 485 (2009), which limited Belton and adopted a new rule under which the
search of an automobile incident to an arrest is constitutional only if genuine
safety or evidentiary concerns justify the search. Applying Gant, the Eleventh
Circuit determined that the search of the vehicle violated Davis’s Fourth
Amendment rights, but it declined to apply the exclusionary rule and upheld his
conviction.
       {¶ 42} The Supreme Court affirmed, noting that exclusion “exacts a heavy
toll on both the judicial system and society at large”: it “requires courts to ignore
reliable, trustworthy evidence bearing on guilt or innocence” and often
“suppress[es] the truth and set[s] the criminal loose in the community without
punishment.” Davis at 2427. However, the court recognized that “[w]hen the
police exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disregard for Fourth
Amendment rights, the deterrent value of exclusion is strong and tends to
outweigh the resulting costs.” Id., quoting Herring v. United States, 555 U.S.
135, 144, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). But the deterrent value of
exclusion does not outweigh its costs “when the police act with an objectively
‘reasonable good-faith belief’ that their conduct is lawful.” Id., quoting United
States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The
court therefore applied the good-faith exception and held that “searches conducted




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in objectively reasonable reliance on binding appellate precedent are not subject
to the exclusionary rule.” Id. at 2423-2424.
                                    Application
       {¶ 43} In the aftermath of Jones, police officers can no longer harbor a
good-faith belief that attaching a GPS tracking device to a vehicle is not a search
for purposes of the Fourth Amendment.          Nonetheless, at the time Detective
Hackney attached the GPS device to Johnson’s van, he acted with an objectively
reasonable good-faith belief that his actions comported with the Fourth
Amendment.
       {¶ 44} The evidence shows that Hackney had a good-faith belief that he
did not need to obtain a warrant before placing the GPS device on Johnson’s
vehicle, because he relied on advice he had received from an assistant prosecuting
attorney and fellow members of law enforcement and on information he had
received during training seminars. See United States v. Katzin, 769 F.3d 163,
181, 2014 WL 4851779 (3d Cir.2014) (en banc) (noting that agents had consulted
with an Assistant United States Attorney and followed “[Department of Justice]
policy at the time that a warrant was not required to install a battery-powered GPS
on a vehicle parked on a public street and to surveil it on public roads”). There is
no indication that Hackney ever had reason to question the lawfulness of his
actions.
       {¶ 45} Further, the belief that his actions were lawful was objectively
reasonable. At the time he attached the GPS tracking device to Johnson’s van,
binding appellate precedent from the United States Supreme Court in Knotts, 460
U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55, and Karo, 468 U.S. 705, 104 S.Ct.
3296, 82 L.Ed.2d 530, had suggested that Johnson lacked a reasonable
expectation of privacy in either the undercarriage of his van or in his movements
on public roads and highways that were visible to members of the public, and
Karo had stated that “an actual trespass is neither necessary nor sufficient to




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establish a constitutional violation.” Id. at 713. In addition, decisions from the
Seventh and Ninth Circuits had relied on Knotts and Karo to hold that police
could attach a GPS tracking device to a suspect’s vehicle without a warrant.
Thus, as the Sixth Circuit recently explained, “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.” United States v.
Fisher, 745 F.3d 200, 205 (6th Cir.2014). And that analysis is applicable here.
       {¶ 46} Other cases decided after Jones have also recognized that it was
objectively reasonable for police officers to conclude that installing a GPS
tracking device did not implicate any Fourth Amendment right. See, e.g., Katzin,
769 F.3d at 182 (explaining that Knotts and Karo provided “hornbook law” on
electronic surveillance of vehicles, and agents thus had no reason to believe that
installing and monitoring a GPS tracking device was illegal); United States v.
Aguiar, 737 F.3d 251, 262 (2d Cir.2013) (“sufficient Supreme Court precedent
existed at the time the GPS device was placed for the officers here to reasonably
conclude a warrant was not necessary”); United States v. Stephens, 764 F.3d 327,
337 (4th Cir.2014) (“use of the GPS was objectively reasonable because of the
binding appellate precedent of Knotts”); Kelly v. State, 436 Md. 406, 426, 82 A.3d
205 (2013) (“before Jones, binding appellate precedent in Maryland, namely
Knotts, authorized the GPS tracking of a vehicle on public roads”).
       {¶ 47} And it is significant that the Supreme Court’s decision in Jones
unexpectedly departed from the framework established by Katz, 389 U.S. 347, 88
S.Ct. 507, 19 L.Ed.2d 576, when it relied on the property-law based approach
barring government trespasses against personal effects that Katz had rejected.
Karo suggested that attaching the GPS tracking device to the undercarriage of the
van would not constitute a search or seizure, because although a “technical




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trespass,” it had not interfered with Johnson’s possessory interest in the van in any
meaningful way. 468 U.S. at 712, 104 S.Ct. 3296, 82 L.Ed.2d 530. And Knotts
suggested that monitoring the van’s location did not amount to a search, because
an occupant of a vehicle lacks a reasonable expectation of privacy in his
whereabouts while driving on public streets and highways.               But “Jones
fundamentally altered this legal landscape by reviving—after a forty-five year
hibernation—the Supreme Court’s prior trespass theory.” Katzin, 769 F.3d at
181.
       {¶ 48} As the Sixth Circuit noted in Fisher, “[a] reasonable officer would
not have been able to anticipate this shift in the Supreme Court’s Fourth
Amendment jurisprudence,” 745 F.3d at 204, fn. 4, and the good-faith exception
should be applied “where new developments in the law have upended the settled
rules on which the police relied,” United States v. Sparks, 711 F.3d 58, 68 (1st
Cir.2013).
                                    Conclusion
       {¶ 49} Prior to the Supreme Court’s decision in Jones, its opinions in
Knotts and Karo provided binding appellate precedent in this state to support the
objectively reasonable conclusion that placing a GPS tracking device on a
suspect’s vehicle did not implicate any protections of the Fourth Amendment.
Searches conducted in objectively reasonable, good-faith reliance on this binding
appellate precedent are therefore not subject to the exclusionary rule, even though
hindsight subsequently reveals that reliance to have been misplaced.
       {¶ 50} Here, Detective Hackney acted with a good-faith, objectively
reasonable belief that it would not violate Johnson’s Fourth Amendment rights to
attach a GPS tracking device to the undercarriage of his van, based on the state of
the law in October 2008. Suppression of the evidence obtained as a result of the
GPS device would have no appreciable effect in deterring violations of the Fourth




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Amendment, and therefore the good-faith exception to the exclusionary rule
applies in these circumstances.
       {¶ 51} For these reasons, the judgment of the court of appeals is affirmed.
                                                               Judgment affirmed.
       O’CONNOR, C.J., and KENNEDY, FRENCH, and O’NEILL, JJ.
       PFEIFER and LANZINGER, JJ., concur in judgment only.
                            ____________________
       Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael A.
Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee.
       Arenstein & Gallagher, William R. Gallagher, and Elizabeth Conkin, for
appellant.
       Michael DeWine, Attorney General, and Eric E. Murphy, State Solicitor,
urging affirmance for Ohio Attorney General Michael DeWine.
       Gregg Marx, Fairfield County Prosecuting Attorney; Timothy J. McGinty,
Cuyahoga County Prosecuting Attorney, and Katherine Mullin, Assistant
Prosecuting Attorney; and Ron O’Brien, Franklin County Prosecuting Attorney,
and Steven L. Taylor, Chief Counsel, Appellate Division, urging affirmance for
amici curiae Prosecuting Attorneys Association, Fairfield County Prosecuting
Attorney, Cuyahoga County Prosecuting Attorney, and Franklin County
Prosecuting Attorney.
       Pinales, Stachler, Young, Burrell & Crouse Co., L.P.A., and Candace C.
Crouse, urging reversal for amicus curiae National Association of Criminal
Defense Lawyers.
                           ______________________




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