                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 11-1696

U NITED S TATES OF A MERICA,
                                                Plaintiff-Appellee,
                                v.

M ATTHEW L. M ARTIN ,
                                            Defendant-Appellant.


           Appeal from the United States District Court
                for the Central District of Illinois.
           No. 10-CR-40008—Michael M. Mihm, Judge.



                       M ARCH 25, 2013




 Before F LAUM, K ANNE, and W OOD , Circuit Judges.
  P ER C URIAM . Matthew L. Martin, a convicted felon,
pleaded guilty to possessing a firearm, see 18 U.S.C.
§ 922(g), subject to the condition that he be allowed to
challenge the district court’s denial of his motion to
suppress the firearm and drugs found in his car. He
appealed, and we affirmed the district court’s judgment
in United States v. Martin, 664 F.3d 684 (7th Cir. 2011),
after concluding that the police did not violate Martin’s
2                                             No. 11-1696

rights under the Fifth Amendment—the only question
he presented in his appeal. Martin then filed a timely
petition for rehearing with suggestion for rehearing
en banc, which was pending when the Supreme Court
decided United States v. Jones, 132 S. Ct. 945 (2012). The
Supreme Court held that the installation of a GPS
device on a vehicle and the use of that device to track
the vehicle’s location constitutes a search within the
meaning of the Fourth Amendment. Id. at 949. Following
Jones, Martin added arguments based on the war-
rantless GPS in his case to his other arguments for sup-
pression, and we ordered a limited remand for the
district court to consider (1) whether Martin’s plea
agreement allowed him to challenge the evidence
against him under Jones, and (2) whether Jones justified
the suppression of the evidence against him. The
district court concluded that Martin’s conditional plea
(which preserved a Fourth Amendment challenge to
the admissibility of a gun seized from his car) did not
erect an insurmountable bar to raising such issues
on appeal, but that Martin was not entitled to suppres-
sion under a “good faith” exception to the exclusionary
rule. At our direction, the parties filed supplemental
briefs addressing only the issues raised in the limited
remand and the district court’s decision.
  Our earlier opinion thoroughly discussed the police’s
investigation of Martin and his arrest, and we repeat
here only the details relevant to his current motion.
After a bank robbery in Burlington, Iowa, police officers
received a tip that Martin was one of the robbers. The
police located Martin, attached a GPS device to his car,
No. 11-1696                                              3

and tracked him into Illinois, where a local deputy
sheriff stopped and searched his car. The search
revealed drugs and a revolver underneath the hood of
the car, and Martin eventually admitted during a
police interview that he knew about the gun.
   On the limited remand, the district court concluded
that, pursuant to Davis v. United States, 131 S. Ct. 2419
(2011), suppression was not warranted because of the
“officer’s good faith reliance on then-existing prece-
dent.” With respect, we find that to be an unwarranted
expansion of the Supreme Court’s decision in Davis
and not one that we should adopt in the present case.
Davis expanded the good-faith rationale in United States
v. Leon, 468 U.S. 897 (1984), only to “a search [conducted]
in objectively reasonable reliance on binding appellate
precedent,” finding that this set of searches are not
subject to the exclusionary rule. See Davis, 131 S. Ct. at
2434 (emphasis added). As Justice Sotomayor pointed
out in her opinion concurring in the judgment, Davis
“d[id] not present the markedly different question
whether the exclusionary rule applies when the law
governing the constitutionality of a particular search is
unsettled.” 131 S. Ct. at 2435. The Supreme Court may
decide to expand Davis in the coming years, but until
it does so, we are bound to continue applying the tradi-
tional remedy of exclusion when the government seeks
to introduce evidence that is the “fruit” of an unconstitu-
tional search. We reject the government’s invitation to
allow police officers to rely on a diffuse notion of the
weight of authority around the country, especially
where that amorphous opinion turns out to be incorrect
4                                               No. 11-1696

in the Supreme Court’s eyes. Here, as Martin points out
in his supplemental brief, there was no binding appel-
late precedent in the Eighth Circuit at the time that
Iowa law enforcement officials attached the GPS device
to Martin’s car.
  We need not definitely resolve this point in the context
of this case, however, because the facts require us to
reject Martin’s argument for suppression. The evidence
he seeks to suppress had little to do with the fact that a
GPS device had been used at all: put differently, it was
significantly “attenuated” from the improper installa-
tion of the device. As the district court initially ruled
in 2010, “there was probable cause for Martin’s arrest
[and] it was reasonable for the officers to believe
Martin’s vehicle contained evidence of the bank robbery”
independent of any data gleaned from its electronic
surveillance of the vehicle. The GPS data here appears
simply to have aided law enforcement officials in
tracking down Martin when they decided to effect his
arrest. This is quite different from the situation in
Jones, where the GPS data was used to establish a
necessary link between the defendant and a cocaine
stash house, 132 S. Ct. 945, 948 (2011). It is also different
from the various post-Jones district court cases Martin
cites, United States v. Katzin, 2012 WL 1646894 (E.D. Pa.
May 9, 2012) (GPS data tying suspects to string of phar-
macy robberies), United States v. Lee, 862 F. Supp. 2d 560
(E.D. Ky. 2012) (GPS tracking data indicating suspect
was transporting marijuana), United States v. Ortiz, 878
F. Supp. 2d 515 (E.D. Pa. 2012) (GPS data connected
defendant to complex drug trafficking scheme). Martin
No. 11-1696                                                5

has not responded to the government’s attenuation ar-
gument. Indeed, he has offered zero argument, at
any stage, that would establish why exclusion of
the evidence seized here is necessary to vindicate the
specific (somewhat unique) privacy interest that has
been violated in his case. As Justice Scalia put it in Jones,
the problem arises when “[t]he Government physically
occupie[s] private property for the purpose of obtaining
information.” 132 S. Ct. at 949. Perhaps if Martin had
developed this argument more fully at the district court
level, that gap could have been filled. But it was not,
and so, even though we are willing to proceed on the
basis that he did not completely forfeit his argument
about the use of the GPS device, we cannot give him
the benefit of a record that was never made.
  No judge in active service has requested a vote on the
petition for rehearing en banc, and all of the judges on
the original panel have voted to deny rehearing. It is
therefore ordered that the petition for rehearing and
for rehearing en banc is D ENIED.




                           3-25-13
