[Cite as State v. Allen, 2013-Ohio-4188.]




                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 99289 and 99291


                                       STATE OF OHIO
                                                PLAINTIFF-APPELLANT

                                                  vs.

                                            BRIAN ALLEN
                                                DEFENDANT-APPELLEE




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-542893 and CR-544296

              BEFORE:           Blackmon, J., Boyle, P.J., and Keough, J.

              RELEASED AND JOURNALIZED:                    September 26, 2013
                                -i-


ATTORNEYS FOR APPELLANT

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Katherine E. Mullin
Joseph J. Ricotta
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114

Thomas E. Shaughnessy
11510 Buckeye Road
Cleveland, Ohio 44104
PATRICIA ANN BLACKMON, J.:

      {¶1} In this consolidated appeal, appellant, state of Ohio (“the State”), appeals

the trial court’s decision granting appellee, Brian Allen’s (“Allen”), motion to suppress

and assigns the following error for our review:

      I. The trial court erred by granting appellee’s motion to suppress evidence
      where officers acted in good faith. The exclusionary rule is a measure of
      last resort and evidence should not be suppressed unless the possible benefit
      of suppression outweighs the substantial social costs.

      {¶2} Having reviewed the record and pertinent law, we affirm the trial court’s

decision. The apposite facts follow.

      {¶3} During the months of July through October of 2010, a string of burglaries

occurred in the cities of Lyndhurst, Shaker Heights, Maple Heights, South Euclid, and

Highland Heights, Ohio. Many of the burglaries had a distinct pattern and shared similar

characteristics. Specifically, the burglaries took place in residential areas on weekdays

when the houses were vacant because the residents were at work. As a result of the

similarities, the police departments of the various municipalities shared information

regarding the crimes.

      {¶4} On September 30, 2010, two such burglaries took place in the city of

Lyndhurst. During their subsequent investigation, officers with the Lyndhurst police

department learned from a local resident that an unfamiliar male had been walking

through the yard of one of the burglarized homes.    The local resident indicated that the

unfamiliar male walked around the exterior of the home before backing his car into the
driveway. In addition, the resident indicated that the individual was a thin, black male,

approximately 6’ 2” tall, and was driving an SUV with an Ohio license plate number,

DZU 1675.

       {¶5} As a result of this information, the Lyndhurst police determined that the

vehicle was registered in the name of the suspect’s wife and that the two resided in an

apartment complex in Willoughby, Ohio. Lyndhurst police officers went to the complex,

conducted surveillance, and confirmed that the vehicle was in the parking lot.

       {¶6} On October 4, 2010, Detective James Fiore attached a magnetic global

positioning system (“GPS”) to the undercarriage of the vehicle. The GPS device allowed

the officers to track the vehicle’s movement without the need for visual surveillance.

Utilizing the GPS device, the officers could precisely determine the exact driveway in

which the vehicle was located on a given street and how long it remained in a given

driveway.

       {¶7} The Lyndhurst police used the GPS device to track the movements of the

vehicle for two days.    Based on the specific coordinates of the vehicle at a given time,

the Lyndhurst police would contact the respective local police department and request

assistance in maintaining visual surveillance of the vehicle.

       {¶8} On October 6, 2010, while the vehicle was being tracked, the police officers

followed the suspect to the area of 5744 East 141st Street in the city of Maple Heights.

After a temporary loss of visual surveillance, the police officers observed the vehicle was

headed back to the apartment complex in Willoughby, Ohio. The Lyndhurst police
officers checked and received confirmation from the Maple Heights police departments

that two homes appeared to have been burglarized within the time frame that the vehicle

was present within its jurisdiction.

       {¶9} Armed with this information, police officers stopped the vehicle as it

entered the parking lot of the apartment complex. After observing numerous electronic

devices in plain view, the officer arrested the suspect, and towed the vehicle to the

Willoughby Hills police department’s evidence garage.       Later, the officers obtained

search warrants for the suspect’s home and vehicle. During execution of the warrants,

they discovered electronic equipment believed to have been stolen. Some of the serial

numbers matched items that had been reported stolen.

       {¶10}    Around March 2011, the Cuyahoga County Grand Jury returned a

multi-count indictment against Allen, that included charges of burglary and grand theft

with notice of prior conviction and repeat violent offender specifications.   The grand

jury indictment also included charges of vandalism and having weapons under disability.

       {¶11} On October 15, 2012, Allen filed a motion to suppress the evidence seized

on the grounds that the GPS tracking device was placed on his vehicle without a search

warrant. On December 11, 2012, the trial court granted Allen’s motion to suppress.

                                       Motion to Suppress

       {¶12} In the sole assigned error, the State argues the trial court erred when it

granted Allen’s motion to suppress.
      {¶13} An appellate court’s review of a trial court’s ruling on a motion to suppress

presents a mixed question of law and fact. Euclid v. Jones, 8th Dist. Cuyahoga No.

97868, 2012-Ohio-3960.         The reviewing court is bound to accept the trial court’s

findings of fact if they are supported by competent, credible evidence. State v. Shabazz,

8th Dist. Cuyahoga No. 97563, 2012-Ohio-3367, citing State v. Fanning, 1 Ohio St.3d 19,

437 N.E.2d 583 (1982).       The application of the law to those facts is subject to de novo

review. State v. Polk, 8th Dist. Cuyahoga No. 84361, 2005-Ohio-774, ¶ 2.

      {¶14} We find that the operative facts are not in dispute. Thus, we turn to the

question of law presented.

      {¶15}     The Fourth Amendment to the United States Constitution protects

individuals from unreasonable searches and seizures.         State v. Calimeno, 8th Dist.

Cuyahoga No. 98376, 2013-Ohio-1177, citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868,

20 L.Ed.2d 889 (1968). Searches conducted outside the judicial process, by officers

lacking a prior judicial warrant, are per se unreasonable and subject to a few specifically

established exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576

(1967).

      {¶16} In United States v. Jones, 565 U.S. ____,132 S.Ct. 945, 181 L.Ed.2d 911

(2012), the United States Supreme Court held that a GPS tracking device could not be

attached to a suspect’s motor vehicle without a warrant because the use of the device

results in an unlawful search under the Fourth Amendment.
       {¶17} In the instant matter, the State does not dispute the applicability of the

Jones decision to this case.   Rather, the State argues that the failure of the Lyndhurst

police to obtain a search warrant should not have warranted the exclusion of all evidence

obtained through the use of the GPS tracking device. The State maintains that the

good-faith exception to the exclusionary rule found in Davis v. United States, 564 U.S.

____,131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), should apply and the evidence should not

have been excluded.

       {¶18} Davis holds that a police officer’s reliance upon binding judicial authority is

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

Id.   The challenge the State faces in arguing for the application of Davis’s good-faith

exception to the exclusionary rule, is the glaring absence of any binding judicial authority

in this jurisdiction that they could have arguably relied on at the time they attached the

GPS tracking device to Allen’s vehicle.

       {¶19} A review of the case law in Ohio reveals that only a handful of cases

addressed the issue of Fourth Amendment constraints on GPS attachment and tracking.

These cases were all decided after the officers attached the GPS to Allen’s vehicle.

       {¶20} The first case, State v. Johnson, 190 Ohio App.3d 750, 2010-Ohio-5808,

944 N.E.2d 270 (12th Dist.), involved the denial of a motion to suppress evidence

obtained through the attachment and tracking via a GPS device. In Johnson, the Twelfth

District held that the motion to suppress was properly denied because defendant did not

have a reasonable expectation of privacy in the undercarriage of his vehicle and because
placing a GPS device on a vehicle to track the vehicle’s whereabouts did not constitute a

search or seizure according to the Fourth Amendment and Ohio’s Constitution.

       {¶21} Clearly, had the decision been rendered prior to Detective Fiore attaching

the GPS tracking device to Allen’s vehicle, instead of two months after, the holding in

Johnson would have presented persuasive, but non-binding authority on this court.

Subsequent appellate history reveals that the Ohio Supreme Court in State v. Johnson,

131 Ohio St.3d 301, 2012-Ohio-975, 964 N.E.2d 426, vacated the judgment of the court

of appeals and remanded the matter to the trial court for application of Jones.   Thus, had

Johnson been decided prior to the search in the instant matter, the State could have

argued, in keeping with Davis, that they had in good faith relied on Johnson, though

subsequently overturned.

       {¶22}   The second case, State v. White, 5th Dist. Fairfield No. 2010-CA-60,

2011-Ohio-4526, again involved the denial of a motion to suppress evidence obtained

through the attachment and tracking via a GPS device. In White, decided September 1,

2011, the Fifth District held that the trial court erred by denying the motion to suppress,

because placing a GPS tracking device on defendant’s vehicle, permitted surveillance of

the movements of defendant constantly for an indefinite period of time without any

exigent circumstances or showing of probable cause.            The court found that this

authorized an unreasonable search in violation of the Fourth Amendment and, therefore,

was invalid.
       {¶23} Subsequent appellate history reveals that the Ohio Supreme Court in State

v. White, 132 Ohio St.3d 67, 2012-Ohio-1983, 969 N.E.2d 243, remanded the matter to

the trial court for the application of Jones.

       {¶24} The third case, State v. Jefferson, 8th Dist. Cuyahoga No. 2011-Ohio-4637,

involved a claim of ineffective assistance of counsel due to the failure to file a motion to

suppress evidence obtained through the attachment and tracking via a GPS device. In

Jefferson, decided September 15, 2011, we held that defendant was denied the effective

assistance of counsel because, not only should trial counsel have filed a motion to

suppress evidence obtained from the warrantless installation and use of a GPS device on

his car, but there was a strong likelihood such a motion would have been granted.        In

White, we reasoned that if granted, the State would have had no evidence to link

defendant to the crime, and he would have been acquitted.

       {¶25} Subsequent appellate history reveals that the Ohio Supreme Court in State

v. Jefferson, 132 Ohio St.3d 75, 2012-Ohio-1984, 969 N.E.2d 250, again remanded this

similar matter to the trial court for the application of Jones.    We also note that upon

remand to the trial court for the application of Jones, the State dismissed the charges

against the defendant without prejudice.

       {¶26} The fourth case, State v. Sullivan, 5th Dist. Fairfield No. 2010-CA-52,

2011-Ohio-4967, is another from the Fifth District that also involved the denial of a

motion to suppress evidence obtained through the attachment and tracking via a GPS

device.   In Sullivan, decided September 23, 2011, the Fifth District held that the trial
court erred when it overruled the motion to suppress because a warrant was required

before placing the GPS tracking device on the suspect vehicle and before continuously

monitoring the tracking signal.

       {¶27} The court reasoned that placement of the GPS tracking device was more

than simply a momentary trespass that could be expected from any member of the public.

It found that the device, remaining constantly in place, performed a much more

substantial search and, therefore, was unreasonable in duration and scope. Consequently,

the Fifth District held, as they did in White, that the installation of the GPS device was a

“search” subject to Fourth Amendment warrant requirements.

       {¶28} Subsequent appellate history reveals that the Ohio Supreme Court in State v.

Sullivan,132 Ohio St.3d 75, 2012-Ohio-1985, 969 N.E.2d 250, again remanded this

similar matter to the trial court for the application of Jones.

       {¶29} A look at the small sample of cases in this jurisdiction that were decided

prior to the United States Supreme Court’s decision in Jones, reveals the unsettled nature

of the issue surrounding Fourth Amendment constraints on GPS attachment and tracking.

  However, it is worth noting that three of the four cases addressing this issue, prior to

Jones, found that attaching the GPS device was a “search” subject to Fourth Amendment

warrant requirements.

       {¶30} In the absence of binding appellate precedent in Ohio at the time of the

search, coupled with the advent and implication of Jones, the State urges that we adopt

non-binding judicial precedent from other jurisdictions.          Specifically, the State cites
United States v. Baez, 878 F. Supp.2d 288, decided July 16, 2012, five months after

Jones. In Baez, a case involving a motion to suppress evidence obtained through the

attachment and tracking via a GPS device in a jurisdiction that had not addressed the

issue, the court, applying Davis, declined to suppress the evidence gathered through that

technique, on the grounds that the purposes of the exclusionary rule would not be served.

 In reaching this decision, the Baez court noted:

       For almost the entirety of the time officers were tracking Baez with the GPS
       device, the three Circuit Courts that had expressly addressed the issue had
       unanimously concluded that police did not implicate the Fourth Amendment
       warrant requirement by monitoring a GPS tracking device on a car in
       public. United States v. Marquez, 605 F.3d 604, 609-10 (8th Cir. 2010);
       United States v. Pineda-Moreno, 591 F.3d 1212, 1216-17 (9th Cir. 2010);
       United States v. Garcia, 474 F.3d 994, 997-98 (7th Cir. 2007); see also
       United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (upholding tracking
       with a beeper attached to a vehicle).

       {¶31} Although the Baez court declined to interpret Davis as only preventing

suppression where officers face binding appellate precedent that is subsequently

overturned, the court specifically stated:

       I do not find suppression on the basis of Jones self-executing because Davis
       counsels the exclusionary rule should not be applied if the evidence was
       gathered at a time when the Courts of Appeals approved the practice at
       issue and there was no controlling precedent to the contrary within the
       relevant circuit. Id.

       {¶32} As previously noted, in the instant case, the evidence was gathered at a

time when no court of appeals in this jurisdiction had approved the practice of attaching

GPS tracking devices, and there was no controlling precedent to the contrary. Thus, we

decline to follow Baez’s broad reading of Davis.
       {¶33} Until the United States Supreme Court addresses questions left unanswered

by Jones, specifically, what is the proper remedy when the governing law is unsettled, we

will adopt a strict reading of Davis and apply the exclusionary remedy to suppress

evidence gathered from a warrantless GPS initiative, because no binding precedent

existed in our jurisdiction prior to Jones. Other jurisdictions have done the same. See

United States v. Katzin, E.D. Pa. No. 11-226, 2012 U.S. Dist. LEXIS 65677 (May 9,

2012); United States v. Lujan, N.D. Miss. No. 2:11CR11-SA, 2012 U.S. Dist. LEXIS

95804 (July 10, 2012); United States v. Lee, E.D. Ky. No. 11-65-ART, 862 F. Supp.2d

560, 2012 U.S. Dist. LEXIS 71204 (May 22, 2012); and United States v. Robinson, E.D.

Mo. No. S2-4:11CR00361AGF(DDN), 903 F. Supp. 2d 766, 2012 U.S. Dist. LEXIS

147793 (Oct. 15, 2012).

       {¶34} The risk of institutionalizing a policy of permitting reliance on non-binding

authority, particularly in the face of other, contrary non-binding authority, at least borders

on being categorized as systemic negligence. Katzin, 2012 U.S. Dist. LEXIS 65677.

Indeed, allowing the government the shelter of the good-faith exception in this case

would encourage law enforcement to beg forgiveness, rather than ask permission, in

ambiguous situations involving basic civil rights. Id.

       {¶35} Faced with the lack of binding appellate precedence in Ohio, the trial court

granted Allen’s motion to suppress and issued the following entry, stated in pertinent part

as follows:

        Here, the violation occurred before Jones or a ruling in Ohio or the Sixth
       Circuit on the issue of Fourth Amendment constraints on GPS attachment
      and tracking; the first case to address this issue, State v. Johnson, 190 Ohio
      App.3d 750 (12th Dist.2010), was decided in late November, almost two
      months after the events at issue. Thus, the State has urged that the police
      reasonably relied, in the absence of binding precedent, on persuasive
      precedent from other jurisdictions. The State claims this should be
      sufficient to satisfy the good-faith exception. This argument did not sway
      the second district in State v. Henry, No. 11-CR-829 (Ohio 2d Dist.2012),
      the first case in Ohio in which an Ohio appellate court applied the Jones
      rule, and this Court can find nothing to distinguish this case.

      In Henry, police investigators placed a GPS on the defendant’s vehicle
      without a warrant and the tracking information from the GPS led to the
      defendant’s arrest in connection with a number of thefts. Id. at 1-2. The
      State in that case made the same argument for the Davis exception because
      police relied on persuasive precedent. In reversing the trial judge’s denial
      of the defendant’s motion to suppress, the Second District found that the
      good-faith exception in Davis “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.” Id. at 4. There is nothing
      to suggest a different outcome here. Journal Entry December 11, 2012.

      {¶36} The trial court’s decision is well reasoned. Here, like Henry, we, nor any

other Ohio appellate court district had addressed the “GPS” issue prior to the release of

the United States Supreme Court’s decision in Jones. The same is true of the Ohio

Supreme Court and the Sixth Circuit Court of Appeals. Thus, there was no binding

precedent in our jurisdiction concluding that the employment of a GPS tracking device

does not constitute a “search,” making a warrant unnecessary.

      {¶37} We now turn to the Lake County, Ohio case against Allen, which involves

the same operative facts.   The State, through the Lake County Prosecutor’s Office,

prosecuted and obtained convictions against Allen for the related burglaries in Lake

County. Allen appealed his convictions, asserting that counsel’s failure to file a motion
to suppress evidence obtained with the warrantless use of a GPS device amounted to

ineffective assistance.

       {¶38}     On appeal, in State v. Allen, 11th Dist. Lake No. 2011-L-157,

2013-Ohio-434, the Eleventh District, in reversing Allen’s convictions followed the logic

on display by the Second District in Henry.   In Allen, the Eleventh District held counsel

had a duty to raise the issue of the warrantless use of a GPS in a motion to suppress

because, at trial, (1) no binding precedent required its denial, so the motion would not

have been futile, and (2) there was no strategic basis for not filing it, so counsel’s

performance fell below an objective standard of reasonableness.

       {¶39}    The State filed a notice of appeal and a motion to stay the Eleventh

District’s decision in Allen. However, the Ohio Supreme Court declined jurisdiction. See

State v. Allen, 135 Ohio St.3d 1447, 2013-Ohio-2062, 987.N.E.2d 703.

       {¶40} Further, although the State urges an opposing view, we join with the Second

and Eleventh Districts, who have now spoken on the issue, to underscore that the

good-faith exception to the exclusionary rule is not available if there was no binding

precedent in the jurisdiction. Thus, we decline to adopt the position the State urges that

we broadly interpret Davis to allow an exception when non-binding precedence from

other jurisdictions exist.

       {¶41} Finally, the State argues that the goals of the exclusionary rule would not

be met in the instant case because suppression comes at a substantial social cost. The

exclusionary rule is a “prudential doctrine” that was created by the United States Supreme
Court to “compel respect for the constitutional guaranty” expressed in the Fourth

Amendment. Davis, citing Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4

L.Ed.2d 1669 (1960). The purpose of the exclusionary rule is to deter future Fourth

Amendment violations. Davis at 2426. “Where suppression fails to yield ‘appreciable

deterrence,’ exclusion is ‘clearly * * * unwarranted.’” Id. at 2426-2427, quoting United

States v. Janis, 428 U.S. 433, 454, 96 S.Ct. 3021, 49 L.Ed.2d 1046 (1976). Because of

the substantial social costs generated by the exclusionary rule, the deterrence benefits of

suppression must outweigh its heavy costs. Davis at 2427.

       When 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. * * * But when the police
       act with an objectively “reasonable good-faith belief” that their conduct is
       lawful * * * or when their conduct involves only simply “isolated”
       negligence * * * the “deterrence rationale loses much of its force” and
       exclusion cannot “pay its way.”

Id. at 2427-2428, quoting United States v. Leon, 468 U.S. 897, 908-909, 104 S.Ct. 3405,

82 L.Ed.2d 677 (1984) and Herring v. United States, 555 U.S. 135, 143-144, 129 S.Ct.

695, 172 L.Ed.2d 496 (2009).

       {¶42} The State argues there is no evidence demonstrating that the police acted

with deliberate, reckless, or grossly negligent disregard for Allen’s Fourth Amendment

rights. In support, the State claims the Lyndhurst detectives acted in good faith by

diligently inquiring of two Cuyahoga County Prosecutors about the necessity of a warrant

before placing the GPS tracking device on the vehicle. However, had a reckless, wanton

analysis been necessary to resolve the instant matter, the detectives’ actions, subsequent
to inquiring about the necessity of a warrant, would have undermined the State’s

argument.

       {¶43} It has not been lost on this court that in addition to not obtaining a warrant

prior to attaching the GPS tracking device to Allen’s vehicle, the Lyndhurst detectives

crossed into another jurisdiction by going into another county, under the cover of night,

and entered a gated community to surreptitiously attach the device at issue.    Thus, had a

reckless wanton analysis been necessary, instead of Davis’s application in the wake of

Jones, it is arguably that the State’s good-faith argument would have been tarnished by

the procedure the Lyndhurst detectives employed to attach the GPS tracking device to

Allen’s vehicle.

       {¶44}   For the foregoing reasons, the trial court did not err when it granted

Allen’s motions to suppress evidence obtained by attaching a GPS tracking device to

Allen’s vehicle without first obtaining a warrant. Accordingly, we overrule the State’s

sole assigned error.

       {¶45} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment into

execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
