State v. Johnson , 2013 Ohio 4865 ( 2013 )

[Cite as State v. Johnson, 2013-Ohio-4865.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
BUTLER COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. CA2012-11-235
: OPINION
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:
SUDINIA D. JOHNSON, :
Defendant-Appellant. :
CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS
Case No. CR2008-11-1919
Michael T. Gmoser, Butler County Prosecuting Attorney, Michael A. Oster, Jr., Government
Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee
William R. Gallagher, The Citadel, 114 East Eighth Street, Cincinnati, Ohio 45202, for
defendant-appellant
HENDRICKSON, P.J.
{¶ 1} Defendant-appellant, Sudinia Johnson, appeals from his convictions for
trafficking in cocaine and possession of cocaine following his plea of no contest in the Butler
County Court of Common Pleas. Johnson argues that the trial court erred in overruling his
motion to suppress evidence obtained through the warrantless attachment and subsequent
use of a GPS tracking device on the exterior of his vehicle. Because suppression of the
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evidence would not yield appreciable deterrence and law enforcement acted with an
objectively reasonable good faith belief that their conduct was lawful, we find that the trial
court did not err in denying Johnson's motion to suppress. For the reasons set forth below,
Johnson's convictions are affirmed.
I. FACTUAL BACKGROUND
{¶ 2} The following facts were originally set forth in State v. Johnson, 190 Ohio
App.3d 750, 2010-Ohio-5808 (12th Dist.) (hereafter, Johnson I), and are hereby incorporated
in full:
Detective Mike Hackney, a supervisor in the drug-and-vice-
investigations unit for the Butler County Sheriff's Office, received
information from three separate confidential informants that
Johnson was trafficking in cocaine. Specifically, Hackney was
informed that Johnson had recently dispersed multiple kilos of
cocaine, that Johnson was preparing to acquire seven more
kilos, and that Johnson moved the cocaine in a van. Hackney
testified at the motion-to-suppress hearing that he had been
familiar with Johnson's possessing and driving a white Chevy
van at the time the informants gave him the information.
[On October 23, 2008] Hackney and two other agents performed
a trash pull at Johnson's residence, and while there, they
attached a GPS device to Johnson's van, which was parked on
the east side of the road opposite the residences. Hackney
testified that he attached the GPS device to the metal portion of
the undercarriage of the van. Hackney stated that the device
was "no bigger than a pager" and was encased in a magnetic
case so that the device did not require any hard wiring into the
van's electrical systems.
***
After attaching the device, the agents intermittently tracked the
GPS through a secured website. The Tuesday after installation,
the GPS indicated that the van was located in a shopping center
around Cook County, Illinois. Hackney began making
arrangements with law enforcement in Chicago to verify the
location of Johnson's van. * * * Rudy Medellin, * * * a retired
Immigration and Customs officer, * * * agreed to go to the
shopping center and verify the location of Johnson's van.
Medellin arrived at the Chicago shopping center and confirmed
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the van's location and that the van matched the description and
license-plate number of the van Johnson was known to possess
and drive. * * * Medellin then followed the van from the shopping
center to a residence in the Chicago area, where he saw * * *
two men exit the van and enter the residence.
Medellin saw one man, later identified as Johnson, exit the
residence carrying a package or box, and enter the van.
Medellin saw the other man, later identified as Otis Kelly, drive
away in a Ford that had Ohio plates. Medellin followed
Johnson's van and the Ford until they reached the Butler County
area and communicated with Hackney via cell phone during the
surveillance.
Hackney continued to contact law-enforcement officials
throughout Ohio, readying them to assist once Johnson and
Kelly entered Ohio from Indiana. Hackney drove toward
Cincinnati and, after coming upon Johnson's van, began to
follow him. Hackney advised law-enforcement officers to stop
the van and Ford "if they were able to find probable cause to
make a stop." Deputy Daren Rhoads, a canine handler with the
Butler County Sheriff's Office, initiated a stop after Johnson
made a marked-lane violation.
***
By the time Rhoads initiated the traffic stop, other officers were
also in the position to offer back-up. Officers directed Johnson
to exit his vehicle and then escorted him onto the sidewalk so
that Rhoads could deploy his canine partner. The canine made
a passive response on the driver's side door and on the
passenger's side sliding door. After the canine walk-around,
Johnson gave his consent to have the van searched.
Rhoads and other officers performed a preliminary sweep of
Johnson's van for narcotics, but did not find any drugs or related
paraphernalia in the vehicle. During this time, police vehicles
and Johnson's van were situated on the road. After the initial
search, officers moved Johnson's van approximately one-tenth
of a mile to the location where police had pulled over the Ford
driven by Otis Kelly. Officers there had also deployed two
canine units around Kelly's Ford, and the canines detected the
presence of narcotics. The officers ultimately located seven
kilos of cocaine within a hidden compartment in the Ford's trunk
and arrested Kelly for possession of cocaine. (Footnote
omitted).
Once the van was situated at the second location, Rhoads
continued his search with the help of an interdiction officer for
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the Ohio State Highway Patrol. The two concentrated on the
undercarriage of the van and looked for any hidden
compartments that Rhoads may have missed during his
preliminary search. No drugs were recovered from the van.
* * * Officers later seized Johnson's keys and discovered that
one of the keys on Johnson's key ring opened the hidden
compartment in the Ford that contained the seven kilos of
cocaine seized from Kelly's vehicle. [The evidence was seized
and Johnson was arrested.]
Johnson I at ¶ 2-13.
{¶ 3} Johnson was indicted in November 2008 on one count of trafficking in cocaine
in violation of R.C. 2925.03(A)(2), one count of possession of cocaine in violation of R.C.
2925.11, and one count of having weapons while under disability in violation of R.C.
2923.13(A)(3). Following his indictment, Johnson filed numerous motions to suppress
evidence obtained by law enforcement as well as a motion to sever the charge of having
weapons while under disability from the trafficking and possession charges. Johnson's
motion to sever was granted, a bench trial was held, and Johnson was acquitted of having
weapons while under disability.
{¶ 4} An evidentiary hearing on Johnson's motions to suppress was held on March 3,
2009. At this time, the trial court considered Johnson's "Supplemental Motion to Suppress as
to GPS Issue," in which Johnson sought to suppress all evidence obtained "directly or
indirectly" from searches and seizures of himself and his property as "said searches and
seizures were conducted with the unmonitored, unbridled use of a GPS device" in violation of
his constitutional rights. The trial court denied Johnson's motion to suppress as to the GPS
issue. Thereafter, Johnson entered a plea of no-contest to the trafficking and possession
charges, and he was sentenced to 15 years in prison.
{¶ 5} Johnson appealed, arguing that "[t]he trial court erred in denying the motion to
suppres[s] when it ruled police did not need a search warrant to place a GPS tracking device
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on Mr. Johnson's car." Johnson I, 2010-Ohio-5808 at ¶ 18. In Johnson I, this court
concluded that Johnson did not have a reasonable expectation of privacy in the
undercarriage of his vehicle and that the placement and subsequent use of the GPS device
to track the vehicle's whereabouts did not constitute a search or seizure under either the
Fourth Amendment to the United States Constitution or Section 14, Article I of Ohio's
Constitution. Id. at ¶ 18-47.
{¶ 6} Johnson appealed to the Ohio Supreme Court, which accepted review of the
case. State v. Johnson, 128 Ohio St.3d 1425, 2011-Ohio-1049. While the matter was
pending before the Ohio Supreme Court, the United States Supreme Court issued a decision
in United States v. Jones, __ U.S. __, 132 S.Ct. 945, 948 (2012), holding that the
government's "installation of a GPS device on a target's vehicle, and its use of that device to
monitor the vehicle's movements, constitutes a 'search'" within the context of the Fourth
Amendment. (Footnote omitted.) Thereafter, the Ohio Supreme Court vacated our holding
in Johnson I, and remanded the case back to the trial court for application of Jones. State v.
Johnson, 131 Ohio St.3d 301, 2012-Ohio-975, ¶ 1.
{¶ 7} The trial court permitted both parties to file supplemental briefs addressing the
impact that Jones had on Johnson's motion to suppress. At a hearing on September 12,
2012, Johnson and the state stipulated to the trial court's consideration of the transcript and
exhibits from the March 3, 2009 evidentiary hearing. The parties further agreed that no
additional evidence was necessary for the trial court to rule on the motion to suppress. At a
hearing held on October 19, 2012, the trial court issued a decision denying Johnson's motion
to suppress. Although the court found a clear violation of Johnson's Fourth Amendment right
in the warrantless placement of the GPS device on Johnson's vehicle, the court concluded
that exclusion of the evidence obtained from the use of the GPS device was not warranted
under the facts of the case. Relying on Davis v. United States, __ U.S. __, 131 S.Ct. 2419-5-
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(2011), the trial court concluded that "the deterrence benefit 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."
{¶ 8} Following the denial of his motion to suppress, Johnson entered a plea of no-
contest to the trafficking and possession charges. The possession charge was merged with
the trafficking charge for sentencing purposes, and Johnson was sentenced to ten years in
prison.
{¶ 9} Johnson now appeals, challenging the trial court's denial of his motion to
suppress.
II. ANALYSIS
{¶ 10} Assignment of Error No. 1:
{¶ 11} THE TRIAL COURT ERRED WHEN IT FAILED TO APPLY THE
EXCLUSIONARY RULE AND SUPPRESS ALL EVIDENCE AND INFORMATION
OBTAINED BY POLICE AFTER IT DETERMINED A WARRANT WAS NECESSARY TO
PLACE A GPS DEVICE ON MR. JOHNSON'S CAR IN VIOLATION OF HIS
CONSTITUTIONAL RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND
SEIZURES.
{¶ 12} In his sole assignment of error, Johnson argues the trial court erred in denying
his motion to suppress on the basis of the "good faith exception" to the exclusionary rule.
Johnson argues that the good faith exception set forth in Davis is limited in application to
those situations in which there is a "binding appellate procedure authoriz[ing] a particular
police practice." As there was no binding case law in effect at the time the Butler County
Sheriff's Office placed the GPS device on his car, Johnson argues that the police were not
acting in good faith. Johnson, therefore, argues that Davis and Jones require suppression of
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the evidence obtained through the use of the GPS device.
{¶ 13} The state argues for a broader reading of Davis. The state contends that
Johnson's motion to suppress should be denied on the basis of the good faith doctrine as law
enforcement acted with an objectively reasonable good faith belief that their conduct in
attaching and monitoring the GPS device without the authorization of a warrant was lawful.
The state argues that "binding" judicial precedent is not necessary under Davis' good faith
exception to the exclusionary rule. Rather, the state contends, the focus under Davis is on
the culpability of the police. Because officers from the Butler County Sheriff's Office did not
act with a deliberate, reckless, or grossly negligent disregard for Johnson's Fourth
Amendment rights, the state argues that exclusion of the evidence is not required under the
facts of this case.
A. Standard of Review
{¶ 14} Our review of a trial court's denial of a motion to suppress presents a mixed
question of law and fact. State v. Cochran, 12th Dist. Preble No. CA2006-10-023, 2007-
Ohio-3353, ¶ 12. Acting as the trier of fact, the trial court is in the best position to resolve
factual questions and evaluate witness credibility. Id. Therefore, when reviewing the denial
of a motion to suppress, a reviewing court is bound to accept the trial court's findings of fact if
they are supported by competent, credible evidence. State v. Oatis, 12th Dist. Butler No.
CA2005-03-074, 2005-Ohio-6038, ¶ 10. "An appellate court, however, independently
reviews the trial court's legal conclusions based on those facts and determines, without
deference to the trial court's decision, whether as a matter of law, the facts satisfy the
appropriate legal standard." Cochran at ¶ 12.
B. The Exclusionary Rule and the Good Faith Doctrine
{¶ 15} 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
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Fourth Amendment. Davis, 131 S.Ct. at 2426, citing Elkins v. United States, 364 U.S. 206,
217, 80 S.Ct. 1437 (1960). The Supreme Court has "repeatedly held" that the exclusionary
rule's "sole purpose * * * is to deter future Fourth Amendment violations." Id. Courts should
not "reflexive[ly]" apply the exclusionary rule, but rather, should limit application of the
doctrine "to situations in which this purpose [of deterring future Fourth Amendment violations]
is 'thought most efficaciously served.'" Id., quoting United States v. Calandra, 414 U.S. 338,
348, 94 S.Ct. 613 (1974). Accordingly, "[w]here 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 (1976).
{¶ 16} Deterrent value alone, however, is insufficient for exclusion because any
analysis must also "account for the substantial social costs generated by the rule," since
exclusion "exacts a heavy toll on both the judicial system and society at large." (Internal
citations omitted.) Id. at 2427. As suppression "almost always requires courts to ignore
reliable, trustworthy evidence bearing on guilt or innocence," the "bottom-line effect, in many
cases, is to suppress the truth and set the criminal loose in the community without
punishment." Id. "[S]ociety must swallow this bitter pill * * * only as a 'last resort.'"
(Emphasis added.) Id., quoting Hudson v. Michigan, 547 U.S. 586, 591, 126 S.C.t 2159
(2006). Accordingly, "[f]or exclusion to be appropriate, the deterrence benefits of
suppression must outweigh its heavy costs." Id.{¶ 17} "[T]he deterrence benefits of exclusion 'vary with the culpability of the law
enforcement conduct' at issue." Id., quoting Herring v. United States, 555 U.S. 135, 143, 129
S.Ct. 695 (2009). "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
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'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 (1984) and Herring at 143-144.
{¶ 18} In Davis, the petitioner, Davis, sought to exclude evidence obtained in a search
following a routine traffic stop. Id. at 2425. After Davis had been arrested, placed in
handcuffs, and put in the back of a patrol car, the police searched the vehicle Davis had been
riding in and found a revolver. Id. At the time the search was conducted, officers were acting
in compliance with New York v. Belton, 453 U.S. 454, 459-460, 101 S.Ct. 2860 (1981), which
held "that when a policeman has made a lawful custodial arrest of the occupant of an
automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of the automobile." Davis was convicted on one count of possession of a
firearm, but he appealed his conviction arguing that the search was unconstitutional. Davis
at 2426. While his appeal was pending, the United States Supreme Court adopted a new
test in Arizona v. Gant, 556 U.S. 332, 343, 129 S.Ct. 1710 (2009), holding that an automobile
search incident to a recent occupant's arrest is constitutional if (1) the arrestee is within
reaching distance of the vehicle during the search or (2) the police have reason to believe
that the vehicle contains evidence relevant to the crime of arrest.
{¶ 19} The issue the United States Supreme Court faced in Davis was whether to
apply the exclusionary rule to suppress evidence obtained by police officers who, at the time
of the search, were acting in compliance with binding precedent that was later overruled.
Davis at 2423. The Court ultimately concluded that "searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject to the exclusionary rule."
Id. at 2423-2424. The Court's holding was predicated on a determination that "suppression
would do nothing to deter police misconduct in these circumstances" and "would come at a
high cost to both the truth and the public safety." Id. at 2423.
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C. Application of the Good Faith Doctrine to GPS Cases
{¶ 20} Following the Supreme Court's decision in Jones, courts across the country
have addressed the propriety of applying Davis to cases in which GPS monitoring began
before Jones was decided. "These decisions may be generally divided in two groups: (1)
[courts] with pre-Jones binding appellate precedent sanctioning the warrantless installation
and use of GPS devices, and (2) [courts] with no such binding appellate authority." United
States v. Guyton, E.D.La. No. 11-271, 2013 WL 55837, *3 (Jan. 3, 2013).
{¶ 21} Courts falling within the first category have had no problem applying Davis to
deny the suppression of evidence. See State v. Rich, 12th Dist. Butler No. CA2012-03-044,
2013-Ohio-857 (relying on Johnson I as binding appellate precedent within the Twelfth
District Court of Appeals); United States v. Smith, D.Nev. No. 2:11-cr-00058-GMN-CWH,
2012 WL 4898652 (Oct. 15, 2012) (relying on binding appellate precedent in the Ninth
Circuit); United States v. Amaya, 853 F. Supp.2d 818 (N.D.Iowa 2012) (relying on binding
appellate precedent in the Eighth Circuit); United States v. Nelson, S.D.Ga. No. CR612-005,
2012 WL 3052914 (July 25, 2012) (relying on binding appellate precedent in the Eleventh
Circuit).
{¶ 22} Courts falling within the second category, however, are divided on how Davis
should be applied. Some courts have construed Davis narrowly and hold that the good faith
exception is inapplicable in the absence of binding appellate precedent. See State v. Allen,
8th Dist. Cuyahoga Nos. 99289 and 99291, 2013-Ohio-4188; State v. Allen, 11th Dist. Lake
No. 2011-L-157, 2013-Ohio-434; State v. Henry, 2d Dist. Montgomery No. 11-CR-829, 2012-
Ohio-4748; United States v. Katzin, E.D.Pa. No. 11-226, 2012 WL 1646894 (May 9, 2012);
United States v. Lee, 862 F.Supp.2d 560 (E.D.Ky.2012); United States v. Lujan, N.D.Miss.
No. 2:11CR11-SA, 2012 WL 2861546 (July 11, 2012). Other courts interpret Davis to require
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a case-by-case inquiry into whether law enforcement acted with an objectively reasonable
good faith belief that their conduct was lawful. See Guyton, 2013 WL 55837; United States
v. Oladosu, 887 F.Supp.2d 437 (D.R.I.2012); United States v. Baez, 878 F.Supp.2d 288(D.Mass. 2012); United States v. Leon, 856 F. Supp.2d 1188 (D.Haw.2012); United States v.
Rose, 914 F.Supp.2d 15 (D.Mass.2012); United States v. Lopez, 895 F.Supp.2d 592(D.Del.2012).
{¶ 23} The question before this court is whether the Davis good faith exception applies
here, where prior to our decision in Johnson I there was no Ohio Supreme Court or Twelfth
District case law authorizing the warrantless installation and monitoring of a GPS device. We
believe that a case-by-case approach examining the culpability and conduct of law
enforcement is more appropriate given the preference expressed in Davis for a cost-benefit
analysis in exclusion cases as opposed to a "reflexive" application of the doctrine to all cases
involving a Fourth Amendment violation. Davis, 131 S.Ct. at 2427 ("We abandoned the old,
'reflexive' application of the [exclusionary] doctrine, and imposed a more rigorous weighing of
its costs and deterrence benefits").
{¶ 24} In analyzing whether the Butler County Sheriff's Office acted with a "deliberate,"
"reckless," or "grossly negligent" disregard for Johnson's Fourth Amendment rights, we find
that in addition to examining the specific actions taken by Detective Hackney and the sheriff's
office, it is also necessary to examine the legal landscape as of October 23, 2008, the date
the GPS device was placed on Johnson's vehicle.
{¶ 25} At the March 3, 2009 hearing, Hackney testified that the GPS device was
placed on Johnson's vehicle without first attempting to obtain a warrant. Hackney explained
that he had previously installed GPS devices on suspects' vehicles in other cases without
having obtained a warrant. Prior to placing such GPS devices, Hackney had consulted with
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assistant prosecutor Dave Kash about the legality of using GPS devices.1 Hackney further
stated that he had talked with his fellow officers, his supervisors, and with other law
enforcement agencies about the use of GPS devices. He explained 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."
{¶ 26} Hackney's belief that a warrant was unnecessary was not unfounded given the
legal landscape that existed at the time the GPS device was placed on Johnson's car. As 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. Courts that had considered the issue of electronic monitoring determined that
the United States Supreme Court's decision in United States v. Knotts, 460 U.S. 276, 103
S.Ct. 1081 (1983) controlled. In Knotts, the Supreme Court held that there was no Fourth
Amendment violation where officers used an electronic beeper, which had been hidden
inside of a chemical container prior to the container coming into the defendant's possession,
to track a defendant's movements as he traveled on public roads with the container in his car.
The Supreme Court held that a defendant "traveling in an automobile on public thoroughfares
has no reasonable expectation of privacy in his movements from one place to another." Id.2
at 281.
{¶ 27} Subsequent to the United States Supreme Court's decision in Knotts, the Ninth
Circuit determined in United States v. McIver, 186 F.3d 1119, 1126-1127 (9th Cir.1999), that
1. At the March 3, 2009 hearing, Hackney specified that he had talked to Dave Kash about a "[y]ear and a half
[to] two years" ago about the legality of using a GPS device without a warrant.
2. Compare United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081 (1983), with United States v. Karo, 468 U.S.
705, 104 S.Ct. 3296 (1984), where the Supreme Court determined that the monitoring of an electronic beeper in
a private residence constitutes a search requiring a warrant as the location of the beeper was not open to visual
surveillance.
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the placement of a magnetic electronic tracking device on the undercarriage of a vehicle did
not violate the Fourth Amendment. In McIver, law enforcement placed a magnetized tracking
device on the undercarriage of the defendant's vehicle while the vehicle was parked in the
defendant's driveway. Id. at 1123. The transmitter sent a signal to a monitoring unit used by
police officers that informed officers when the transmitter was nearby and in what direction
the transmitter was traveling. Id. The defendant challenged the constitutionality of using the
tracking device, arguing the use of the device constituted both an illegal search and seizure.
Id. at 1126. The Ninth Circuit disagreed, finding that no search occurred as the defendant
failed to produce evidence demonstrating that he intended to shield the undercarriage of his
vehicle from inspection by others or that placing the device permitted officers to pry into a
hidden or enclosed area. Id. at 1127. The court further concluded that a seizure had not
occurred as the defendant was not deprived of dominion and control of his vehicle and there
was no evidence that use of the tracking device caused any damage to the electric
components of the vehicle. Id.
{¶ 28} Thereafter, in 2007, the Seventh Circuit issued a decision in United States v.
Garcia, 474 F.3d 994 (7th Cir.2007), addressing the warrantless placement and subsequent
monitoring of a GPS device on a defendant's motor vehicle. In Garcia, the Seventh Circuit
found the use of GPS devices analogous to the Supreme Court's sanction of beeper
technology in Knotts. Id. at 996-997. The court concluded that the Fourth Amendment
"cannot sensibly be read to mean that police shall be no more efficient in the twenty-first
century than they were in the eighteenth" and concluded that scientific enhancement allowing
police to monitor a suspect on a pubic road was not a search requiring the authorization of a
warrant. Id. at 998.
{¶ 29} Following the placement of the GPS device on Johnson's vehicle and the
Seventh Circuit's decision in Garcia, numerous other courts upheld the warrantless
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attachment and monitoring of a GPS device on a suspect's vehicle prior to the United States
Supreme Court's decision in Jones. See United States v. Pineda-Moreno, 591 F.3d 1212(9th Cir.2010); United States v. Marquez, 605 F.3d 604 (8th Cir.2010); United States v.
Hernandez, 647 F.3d 216 (5th Cir.2011). It was not until August 6, 2010, more than 21
months after the GPS device was placed on Johnson's vehicle, that the D.C. Circuit Court
broke with the majority of other jurisdictions by holding that the use of a GPS tracking device
for 28 days violated a defendant's reasonable expectation of privacy and was a violation of
the defendant's Fourth Amendment rights. United States v. Maynard, 615 F.3d 544(D.C.Cir.2010).
{¶ 30} Given that, at the time Hackney attached the GPS device to Johnson's car, the
United States Supreme Court had sanctioned the use of beeper technology without a warrant
in Knotts, at least one circuit court had applied the rationale expressed in Knotts and
determined that the warrantless placement and subsequent monitoring of a GPS device on a
vehicle was not a violation of a defendant's Fourth Amendment rights, and Hackney acted
only after consulting with fellow officers, other law enforcement agencies, and a prosecutor,
we find that the Butler County Sheriff's Office acted "with an objectively 'reasonable good-
faith belief' that their conduct [was] lawful." Davis, 131 S.Ct. at 2427, quoting Leon, 468 U.S.
at 909. Taking into account the steps taken by law enforcement and the legal landscape that
existed at the time the GPS device was attached to Johnson's vehicle, we find that law
enforcement did not exhibit a deliberate, reckless, or grossly negligent disregard for
Johnson's Fourth Amendment rights in attaching and monitoring the GPS device without the
authorization of a warrant. Suppression under the facts of this case would therefore fail to
yield appreciable deterrence. As such, the deterrence value does not outweigh the social
costs exacted by application of the exclusionary rule, which would require the court "to ignore
reliable, trustworthy evidence bearing on guilt or innocence." Id.- 14 -
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{¶ 31} We therefore find that the good faith exception to the exclusionary rule applies
in this case. The evidence obtained from the attachment and subsequent use of the GPS
device is not subject to exclusion.
III. CONCLUSION
{¶ 32} Having found that suppression of the evidence would not yield appreciable
deterrence and that law enforcement acted with an objectively reasonable good faith belief
that their conduct was lawful, we find no error in the trial court's denial of Johnson's motion to
suppress.
{¶ 33} Johnson's sole assignment of error is overruled.
{¶ 34} Judgment affirmed.
S. POWELL and RINGLAND, JJ., concur.
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