Argued November 4, 2013
Appeal from the United States District Court for the Eastern District of Wisconsin. No. 06-CR-327 -- C.N. Clevert, Jr., Judge.
For UNITED STATES OF AMERICA, Plaintiff - Appellee: Jonathan H. Koenig, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Milwaukee, WI.
For HENRY R. BROWN, Defendant - Appellant: William S. Stanton, Attorney, LAW OFFICE OF WILLIAM S. STANTON, Chicago, IL.
Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.
Easterbrook, Circuit Judge.
A jury convicted Henry Brown of conspiring to distribute more than five kilograms of cocaine. Brown's recidivism led the judge to sentence him to life imprisonment. His principal contention on appeal is that the court should have prevented the prosecutor from introducing evidence traceable to information gleaned from a GPS (Global Positioning System) monitor that investigators attached to a car in 2006. The Supreme Court held in 2012 that the intrusion on the property interest of a car's owner is a " search," valid only if reasonable. United States v. Jones, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). Brown maintains that employing GPS location services is reasonable only with the support of a warrant issued on probable cause.
Jones did not hold--though five Justices suggested in concurring opinions--that monitoring a car's location for an extended time is a search even if the car's owner consents to installation of the GPS unit, so that no property rights have been invaded. 132 S.Ct. at 954-57 (Sotomayor, J., concurring), 957-64 (Alito, J., concurring, joined by Ginsburg, Breyer & Kagan, JJ.). An extension of Jones along the concurring opinions' lines is essential to Brown's position, since this GPS unit was installed without a trespass. A Jeep's owner decided to cooperate with the police in their investigation of his confederates and authorized the attachment of a tracker. The police thought that this step is as permissible as asking their informant to wear a concealed recording or broadcasting device; Brown, by contrast, maintains that monitoring a GPS locator requires probable cause and a warrant even if monitoring an informant's wire does not. We bypass that question, as well as other issues such as whether a person using someone else's car (or that person's co-conspirator) can protest the use of evidence derived from a device that shows no more than the car's location. No matter how these substantive issues come out, it would be inappropriate to use the exclusionary rule to suppress evidence derived from this GPS locator before the Supreme Court's decision in Jones. Until then, precedent would have led reasonable officers to believe that using GPS to track a car's location was not a search.
The exclusionary rule is designed to deter violations of the fourth amendment. The Supreme Court has concluded that the slight deterrent benefit of excluding evidence derived from searches that were proper when conducted--but held to be invalid in light of later precedent--does not justify the injury to the public weal when criminals go unpunished. Davis v. United States, 131 S.Ct. 2419, 2423-24, 180 L.Ed.2d 285 (2011), announced this rule: " searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule" even if that precedent is later held to be incorrect. Before Jones, " binding appellate precedent" in this circuit had established that installation of a GPS device, and the use of the location data it produces, are not within the scope of the fourth amendment. See United
States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011). It appears to follow that the exclusionary rule does not apply to the acquisition of GPS location data, within the Seventh Circuit, before Jones.
That proposition would be straightforward if the evidence had been derived from a GPS device after February 2, 2007, when Garcia created the " binding precedent" for this circuit. See, e.g., United States v. Sparks, 711 F.3d 58 (1st Cir. 2013); United States v. Andres, 703 F.3d 828 (5th Cir. 2013); United States v. Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012); United States v. Ransfer, 743 F.3d 766, (11th Cir. Jan. 28, 2014). All of these decisions conclude that Davis ...