Kentucky District Court Latest to Grapple with Warrantless GPS Tracking after Jones
By Sarah Jeong – Edited by Michael Hoven
United States v. Lee, Criminal No. 11-65-ART (E.D. Ky., May 22, 2012)
Slip opinion (hosted by TalkLeft)
The U.S. District Court of Eastern Kentucky suppressed the discovery of 150 pounds of marijuana in the defendant’s possession, due to the placement of a warrantless GPS tracking device on his car. The search and arrest took place prior to United States v. Jones, No. 10-1259, 2012 WL 171117 (U.S. Jan. 23, 2012), the Supreme Court case that ruled that GPS tracking constitutes a search and therefore requires a warrant. The United States argued in Lee that the agents’ actions fell under the good faith exception to the warrant requirement, but Judge Amul Thapar found that only reliance on binding appellate precedent could create a good faith exception for the police. In this particular case, in contrast, the agents had relied on a national Drug Enforcement Agency (“DEA”) policy supported by non-binding appellate precedent from other jurisdictions. The Lee ruling attempts to articulate a clear and administrable principle for applying (or withholding) the good faith exception to pre-Jones instances of warrantless GPS tracking.
When an informant told the DEA that Lee was trafficking marijuana between Chicago and Kentucky, an agent secretly installed a GPS tracker onto Lee’s car. The device was not authorized by a judge, but the agent believed he was still within the bounds of the law, having “carefully” followed national DEA policy by “attaching the [GPS] device in a public place and then by only monitoring what Lee held out to the general public as he traveled up and down Interstate 75.”
A few days after the device was installed, the DEA noticed that Lee had driven to Chicago, and later that he was returning to Kentucky. The agents contacted a Kentucky State Police Trooper, who then intercepted Lee. After Lee admitted to being in possession of two marijuana cigarettes, the trooper searched the rest of the vehicle and found 150 pounds of marijuana inside.
In cases where suppression is justified, courts may nonetheless apply a “good faith” exception for “objectively reasonable law enforcement activity.” So although the warrantless tracking itself was impermissible as held in Jones, the U.S. argued that the evidence need not be suppressed because the DEA had acted in good faith. The court did not dispute that the DEA agents were in “good faith” in the common sense meaning of the term, but it sought to define the relevant legal sense of “good faith” as being in reliance of binding appellate precedent.
This rule accords with seemingly contradictory district court rulings. For example, district courts in the Ninth and Eighth Circuits have applied the good faith exception to pre-Jones GPS tracking, while a district court in the Third Circuit has refused to apply it. According to the Lee rule, this disparity is explained by the fact that the Ninth and Eighth Circuits had, prior to Jones, made rulings allowing warrantless GPS tracking, while the Third Circuit had not.
The Lee holding is consistent with the district court rulings mentioned above, is sensitive to the possibility of incentivizing police abuse of the good faith exception, and presents an administrable, bright-line rule for the police. But the rule nevertheless leads to some outcomes that Judge Thapar himself admitted were rather strange. His particular interpretation of “good faith” would mean that a DEA agent who is actually in bad faith (like the agent in United States v. Amaya, No. CR-11-4065-MWB, 2012 WL 1188456 (May 2012), who did not disclose GPS tracking in discovery) might still benefit from a good faith exception simply because their jurisdiction had a pre-Jones binding appellate precedent upholding the constitutionality of warrantless GPS tracking. Meanwhile, agents who genuinely believe that they are following the law (as in this case) may not benefit from the good faith exception if their jurisdiction has no such precedent.
Lee is an instance of a federal court attempting to find a consistent way to deal with pre-Jones police activity in a post-Jones world. If other jurisdictions mimic its approach, the good faith exception could be extended in the Seventh, Eighth, and Ninth Circuits, but would be disallowed in the rest.