District Court Rules That Mosaic Search Triggers Good Faith Exception Even Absent Binding Precedent

In my forthcoming article, The Mosaic Theory of the Fourth Amendment, I explain that there are lots of ways in which courts might avoid applying the exclusionary rule if they conclude that the mosaic theory of the Fourth Amendment from the concurring opinions in United States v. Jones offers a viable theory of Fourth Amendment protection. The recent case of United States v. Leon, 2012 WL 1081962 (D.Hawaii, March 28, 2012) offers a creative example that stretches the rationale of the Supreme Court’s recent good-faith decision in Davis v. United States.

In 2009, investigators installed a GPS device on Leon’s car because they suspected he was trafficking in meth. The GPS device monitored the location of Leon’s car for more than three months. In this case, Leon has moved to suppress the fruits of the GPS monitoring of his car. He argues that the installation of the GPS device was a search under the majority opinion in United States v. Jones and that the long-term use of the GPS device was a search under the concurring opinions in that case. The district court first rules that under Davis, the good faith exception applies to the installation of the device because the officers had relied on prior 9th Circuit precedent holding that it was neither a search nor seizure to install a GPS device. So far, so good — that’s what Davis requires. But the district court then rules that the good-faith exception applies to the long-term use of the device — which the court seems to assume is a viable theory of Fourth Amendment protection — even though there was no prior precedent approving that:

Unlike the placement of a GPS tracking device on the exterior of a vehicle in an area where a defendant has no legitimate expectation of privacy, neither Supreme Court nor Ninth Circuit binding precedent in 2009 authorized the agents to continuously monitor the location of the vehicle in public places for a prolonged period of time. Davis therefore is not directly controlling on this issue. Instead, the court must determine whether the agents exhibited “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” or whether they acted “with an objectively reasonable good-faith belief that their conduct [was] lawful.” Davis, 131 S.Ct. at 2427. And after examining precedent as of 2009, the court finds that the agents’ conduct in the use of the GPS tracking device was objectively reasonable.

United States v. Knotts, 460 U.S. 276, 281 (1983), applying the reasonable expectation of privacy test and citing a generally diminished expectation of privacy in automobiles, held that using a beeper to track a vehicle in public places does not violate the Fourth Amendment:

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [codefendant] 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.

Prior to 2009, only one circuit court addressed the constitutionality of GPS monitoring. United States v. Garcia, 474 F.3d 994 (7th Cir.2007), largely relying on Knotts, held that the use of the GPS device did not implicate the Fourth Amendment. Id. at 997 (“But GPS tracking is on the same side of the divide with the surveillance cameras and the satellite imaging, and if what they do is not searching in Fourth Amendment terms, neither is GPS tracking.”). In contrast, as of 2009, no circuit court had held that the prolonged use of a GPS device to be unconstitutional.

Given the state of the law in 2009, the evidence clearly establishes that the DEA agents did not “exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights .” Instead, they acted with an objectively reasonable good-faith belief that their conduct was fully compliant with then-existing Fourth Amendment jurisprudence. Knotts, when considering older beeper technology, specifically found that a person, “travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. at 281. Although the technology changed, the agents were certainly justified in relying on Knotts’ rationale in determining that no warrant was required.FN5 And the sole circuit court to consider the use of a GPS device prior to 2009 found no Fourth Amendment violation, even considering the change in technology.

And although not directly relevant to the agents’ objectively reasonable good-faith belief as of 2009, three judges of the Ninth Circuit found the prolonged use of a GPS tracking device constitutional in 2010. United States v. Pineda–Moreno, 591 F.3d 1212 (9th Cir.2010). And in doing so, the court relied almost exclusively on Knotts. This after-the-fact ruling provides further support that the agents acted with an objectively reasonable good-faith belief—a court would be hard-pressed to place culpability on the agents for their actions in 2009 when, one year later, three judges of the Ninth Circuit relied on Knotts to conclude that the prolonged use of a GPS tracking device did not violate the Fourth Amendment. . . .

The dissent in Davis, criticizing the majority’s focus on law enforcement culpability, foresaw the result in this case. Justice Breyer opined that under the majority view “an officer who conducts a search that he believes complies with the Constitution but which, it ultimately turns out, falls just outside the Fourth Amendment’s bounds is no more culpable that an officer who follows erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit precedent is simply suggestive rather than ‘binding.’ “ Davis, 131 S.Ct. at 2439. Given the state of the law in 2009, the court simply finds no sufficiently culpable conduct by the agents. As Justice Breyer wrote, “if the Court means what it now says,” id., suppression of the evidence in this case would yield no “appreciable deterrence” and is thus unwarranted.

It seems a bit strange to extend the rationale of Davis (something Justice Sotomayor warned against in her Davis concurrence) without first raising the fundamental question of whether the mosaic theory is a viable theory of Fourth Amendment protection. But the possibility of this kind of extension of Davis was always lurking in the background of the Davis case. The Davis court offered a broad rationale to support a narrow holding, and then justified its holding against critiques by emphasizing its narrowness: It was inevitable that at least some courts would follow the broad rationale of Davis rather than stick to the limits of its narrow holding.