United States v. Sparks , 711 F.3d 58 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 11-1134
UNITED STATES OF AMERICA,
Appellee,
v.
CRAIG SPARKS,
Defendant, Appellant.
No. 11-1143
UNITED STATES OF AMERICA,
Appellee,
v.
BENJAMIN MICHAUD,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Howard, Circuit Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.
*
Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
Jeffrey W. Langholtz for appellant Craig Sparks.
Roger A. Cox for appellant Benjamin Michaud.
Robert E. Richardson, Assistant United States Attorney, with
whom Carmen Ortiz, United States Attorney, was on brief, for
appellee.
March 26, 2013
STAHL, Circuit Judge. In December 2009, federal agents,
acting without a warrant, placed a global positioning system (GPS)
tracker on a car used by appellant Craig Sparks. The agents used
the tracker to locate the car at the scene of a bank robbery and
then to chase down the car on the highway after it fled. A search
of the car revealed evidence tying Sparks and his fellow appellant
Benjamin Michaud to the bank robbery, leading to their indictment.
Sparks and Michaud now appeal the district court's denial of their
motion to suppress that evidence, arguing that, under the Supreme
Court's recent decision in United States v. Jones, 132 S. Ct. 945(2012), the agents' use of the GPS tracker was a Fourth Amendment
"search" that required a warrant. We affirm without reaching that
question, because we conclude that the agents' conduct fits within
the good-faith exception to the exclusionary rule.
I. Facts & Background
The facts of this case are not disputed. The Federal
Bureau of Investigation (FBI) suspected Sparks of committing three
bank robberies in late 2009. Accordingly, in the early hours of
December 24, 2009, FBI agents affixed a GPS tracker to a black
Chrysler sedan registered to Sparks's mother but used by Sparks
himself. At the time, the Chrysler was parked in a private parking
lot used by tenants of two adjacent residential buildings,
including Sparks himself. The agents did not have a warrant to
place the tracker on the car.
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The GPS tracker enabled the agents to track the car's
location in real time by logging onto a website. The tracker had
its own battery and thus drew no power from the car. In fact, the
tracker's battery failed shortly after installation, prompting the
agents to replace the battery and reattach the tracker on December
29.
On January 4, 2010 (eleven days after the tracker's
initial installation), the agents, using the tracker, located the
Chrysler in Waltham, Massachusetts. When the agents reached the
car at approximately 12:15 p.m., it was parked near the
intersection of Ash and Crescent Streets, unoccupied but with the
engine running. The agents took up position nearby to watch the
car.
Roughly ten minutes later and two blocks away, two men
entered the Bank of America branch on Moody Street, wearing dark
clothing and ski masks and brandishing what appeared to be
handguns. They demanded money. After obtaining approximately
$10,676 in cash, they left the bank, and fled in a red SUV with the
license plate number 4205YN.
Moments later, the same red SUV pulled up across from the
Chrysler and two men in dark hooded sweatshirts, one of whom
carried a dark-colored bag, emerged. They ran to the Chrysler,
climbed in, and drove off. The watching agents tried to follow,
but became ensnarled in traffic. Thanks to the GPS tracker,
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however, they located the Chrysler heading north on Route 128 and
caught up to it. As the car passed through Lexington, a
Massachusetts State Police cruiser attempted to pull it over, but
the Chrysler's driver slammed on the brakes, sending the car into
a ditch along the side of the highway. The two occupants fled into
the woods, temporarily evading the agents' grasp.
A quick search of the car revealed two BB guns that
resembled the weapons brandished by the bank robbers. A
subsequent, more thorough search uncovered further incriminating
evidence, including clothing and latex gloves like those worn by
the robbers, a knife and a dagger, identification belonging to both
defendants, and a screwdriver. (The latter was relevant because
the red SUV's ignition had been "popped," allowing it to be started
with a screwdriver. The SUV turned out to have been stolen in
Charlestown.) Investigators also found, in the woods into which
the suspects fled, $1,381 in cash and a bag containing two dark
hooded sweatshirts.
The Lexington Police apprehended defendant Michaud later
that afternoon. He was found with roughly $9,284 in cash (bearing
money bands from the bank), two black ski masks, and white latex
gloves. He was also wearing mismatched shoes, the mates of which
were found in the Chrysler. Sparks proved somewhat harder to
catch; he was ultimately collared in Maine a few weeks later.
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After both defendants were indicted, Sparks moved to
suppress the evidence obtained as a result of the placement of the
GPS tracker on the Chrysler. United States v. Sparks, 750 F. Supp.
2d 384, 387 (D. Mass. 2010). Michaud entered a conditional guilty
plea and, with the district court's permission, joined Sparks's
suppression motion. See id. at 387 n.4. After thoroughly
considering the defendants' privacy interests in the parking lot
where the GPS tracker was installed, id. at 388-90, the exterior of
the car, id. at 390-91, and the information the tracker revealed
about their travel, id. at 391-96, the district court denied the
motion to suppress. The court concluded that the case was governed
by United States v. Knotts, 460 U.S. 276 (1983), which held that
using a radio-based tracking device to tail a suspect's car was not
a Fourth Amendment search, because "[a] person traveling in an
automobile on public thoroughfares has no reasonable expectation of
privacy in his movements from one place to another." Id. at 281.
Sparks thus entered a guilty plea of his own, and the government
agreed that both defendants could appeal the suppression issue
(with a caveat as to Michaud that is not relevant here). The
district court sentenced each defendant to 188 months' imprisonment
and five years' supervised release.
II. Analysis
After the district court denied the motion to suppress,
the Supreme Court decided United States v. Jones, which held that
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"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'" for Fourth Amendment purposes.
132 S. Ct. at 949 (footnote omitted). The Justices all agreed that
a search had occurred, but differed as to why. The five-Justice
majority held that a search occurred because "[t]he Government
physically occupied private property for the purpose of obtaining
information." Id. The majority opinion emphasized that the
government had committed a common-law trespass by installing the
tracker on the defendant's car. See id. at 949-50. Justice
Sotomayor provided the fifth vote for that position because she
agreed that a search occurs "at a minimum" where the government
obtains information via physical intrusion, id. at 954 (Sotomayor,
J., concurring), but wrote separately to caution that "physical
intrusion is now unnecessary to many forms of surveillance," and to
suggest that "some unique attributes of GPS surveillance . . . will
require particular attention" in future cases, id. at 955.
Finally, Justice Alito, joined by Justices Ginsburg, Breyer, and
Kagan, took issue with the majority's trespass-based approach but
nevertheless found that a search had occurred under the reasonable-
expectation-of-privacy test articulated in Katz v. United States,
389 U.S. 347 (1967). See 132 S. Ct. at 957-64 (Alito, J.,
concurring in the judgment).
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Jones thus establishes that the district court's reason
for denying the suppression motion in this case -- that "the
placement of the GPS device on the vehicle cannot be considered a
search," 750 F. Supp. 2d at 391 -- is no longer sound.
Consequently, this appeal turns on two questions that remain open
after Jones: whether the kind of search recognized in Jones and
conducted here requires a warrant (instead of mere probable cause
or reasonable suspicion), and, if so, whether the resulting
evidence can nevertheless avoid suppression under the good-faith
exception to the exclusionary rule articulated in Davis v. United
States, 131 S. Ct. 2419 (2011).1
Few courts (and no circuits that we know of) have
grappled with the warrant question so far, largely because the
searches at issue in recent cases occurred pre-Jones, allowing the
government to argue, and a number of courts to find, that the good-
1
The government does not dispute that Sparks, who did not
own the Chrysler but was its usual driver, has standing to
challenge the search here. See Jones, 132 S. Ct. at 949 n.2; cf.
United States v. Gibson, -- F.3d ---, 2013 WL 538007, at *18-19
(11th Cir. Feb. 14, 2013). Michaud, on the other hand, seems to
have had no equivalent interest in the Chrysler. See Sparks, 750
F. Supp. 2d at 387 n.4. Regardless, his suppression claim would
fail for the reasons given below, so we need not consider whether
he could show some other basis to challenge the search. See Orin
S. Kerr, Does Fourth Amendment Standing Work Differently for Jones
Trespass Searches, Traditional Katz Searches, and Long-term Katz
Searches?, The Volokh Conspiracy (Feb. 14, 2012, 10:30 p.m.),
http://www.volokh.com/2012/02/14/does-fourth-amendment-standing-
work-differently-for-jones-trespass-searches-traditional-katz-
searches-and-katz-long-term-expectation-of-privacy-searches/.
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faith exception would apply even if the searches were
unconstitutional. E.g., United States v. Andres, 703 F.3d 828,
834-35 (5th Cir. 2013); United States v. Pineda-Moreno, 688 F.3d
1087, 1090 (9th Cir. 2012); see generally Caleb Mason, New Police
Surveillance Technologies and the Good-Faith Exception: Warrantless
GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60(2012). Those courts that have found GPS tracking to require a
warrant have typically reached that conclusion by rejecting the
government's attempts to fit GPS tracking within the Fourth
Amendment's automobile exception. See United States v. Ortiz, 878
F. Supp. 2d 515, 535-36 (E.D. Pa. 2012); United States v. Katzin,
No. 11-226, 2012 WL 1646894, at *6 (E.D. Pa. May 9, 2012), appeal
pending, No. 12-2548 (3d Cir. argued Mar. 19, 2013). Some have
also more broadly considered the balance of privacy and
governmental interests at stake, concluding that the scales tip in
favor of requiring a warrant. United States v. Ford, No. 11-CR-42,
2012 WL 5366049, at *8 (E.D. Tenn. Oct. 30, 2012); Ortiz, 878 F.
Supp. 2d at 530-33; see also Jones, 132 S. Ct. at 955 (Sotomayor,
J., concurring) (emphasizing the impact that GPS monitoring can
have on a person's privacy); United States v. Maynard, 615 F.3d
544, 562 (D.C. Cir. 2010) (same), aff'd sub nom. Jones, 132 S. Ct.
945. But see United States v. Robinson, No. 11-CR-00361-AGF, 2012
WL 4893643, at *16-17 (E.D. Mo. Oct. 15, 2012) (relying on pre-
Jones precedent to find that reasonable suspicion sufficed).
-8-
Here, we need not decide whether the government can show
that GPS tracking is exempt from "the basic rule" that warrantless
searches are per se unreasonable, Arizona v. Gant, 556 U.S. 332,
338 (2009), because we agree with the government's alternative
argument: even if the agents' use of the GPS tracker in this case
was unconstitutional, their conduct fits within the good-faith
exception to the exclusionary rule. Under that exception, as
recently explicated in Davis, "searches conducted in objectively
reasonable reliance on binding appellate precedent are not subject
to the exclusionary rule." 131 S. Ct. at 2423-24. In this case,
suppression would be inappropriate because the agents' attachment
and monitoring of the GPS tracker was authorized by settled,
binding circuit precedent.
A. The scope of Davis's good faith exception
The purpose of the exclusionary rule "is to deter future
Fourth Amendment violations." Id. at 2426; see United States v.
Leon, 468 U.S. 897, 916 (1984). But the rule's deterrent value
must be balanced against the cost it imposes in the form of
probative but discarded evidence. See Davis, 131 S. Ct. at 2427.
When the police comply with authoritative precedent, only to see
the law evolve after the fact, there is nothing to deter; the
police cannot modify their conduct to accord with cases not yet
decided. See id. at 2428-29, 2434. Thus, in Davis, where the
police conducted a vehicle search incident to arrest that strictly
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complied with binding circuit precedent applying the bright-line
rule of New York v. Belton, 453 U.S. 454 (1981), suppression of the
resulting evidence was not appropriate even though Arizona v. Gant
subsequently established that the vehicle search was unlawful. 131
S. Ct. at 2428. Under the same principle, if the warrantless
installation and monitoring of the GPS tracker in this case was
"objectively reasonable" under then-"binding appellate precedent,"
suppression is not warranted, even if it turns out that the agents
should have gotten a warrant first. Id. at 2423-24.
The parties offer competing visions of what "objectively
reasonable reliance on binding appellate precedent" means. Sparks
and Michaud posit that, to qualify, the precedent in question must
be binding in this circuit (i.e., issued by the Supreme Court or
this court) and sufficiently apposite that "reasonable minds" could
not dispute the propriety of the police practice in question. A
number of district courts in other circuits have adopted similar
readings of Davis in the GPS context. E.g., Robinson, 2012 WL
4893643, at *14; Katzin, 2012 WL 1646894, at *9. On the other
hand, the government suggests that, in the absence of directly
applicable circuit precedent, law enforcement officers may
reasonably rely on the decisions of appellate courts outside the
circuit. This view, too, has found favor with some district courts
in GPS cases, including in this circuit. E.g., United States v.
Gordon, No. 11-CR-20752, 2013 WL 791622, at *8 (E.D. Mich. Mar. 4,
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2013); United States v. Rose, No. 11-10062-NMG, 2012 WL 4215868, at
*4-5 (D. Mass. Sept. 14, 2012); United States v. Oladosu, 887
F. Supp. 2d 437, 442-48 (D.R.I. 2012).
The scope of Davis's reasonable-reliance-on-precedent
test turns on two subsidiary questions: what universe of cases can
the police rely on? And how clearly must those cases govern the
current case for that reliance to be objectively reasonable? As to
the first question, Davis itself establishes that the police
certainly may rely on binding circuit precedent. 131 S. Ct. at
2434. The Court's emphasis on the absence of police culpability
could be read to imply that good-faith reliance on out-of-circuit
appellate precedent is also acceptable. E.g., Rose, 2012 WL
4215868, at *5. That said, the Court did predict that "defendants
in jurisdictions in which [a given Fourth Amendment] question
remains open will still have an undiminished incentive to litigate
the issue," 131 S. Ct. at 2433, suggesting the opposite.2 In any
event, we need not consider today whether Davis can be extended to
reach reliance on non-binding authority, because we conclude that
2
We note that the federal and state appellate courts that
had already adopted a Davis-type reliance-on-precedent exception
before Davis was decided uniformly restricted that exception to
reliance on binding precedent. E.g., United States v. Davis, 598
F.3d 1259, 1266-67 (11th Cir. 2010), aff'd, 131 S. Ct. 2419.
Likewise, the two appellate courts to consider the question since
Davis have read Davis to require reliance on "the caselaw of the
jurisdiction." Briscoe v. Maryland, 30 A.3d 870, 883 (Md. 2011);
accord United States v. Debruhl, 38 A.3d 293, 298 (D.C. 2012); see
also Mason, supra, at 82.
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binding circuit precedent authorized the FBI agents' conduct in
this case. But before we explain that conclusion, we think it
helpful to briefly touch on the second question: how apposite must
the relied-on precedent be?
The Davis Court emphasized, and Davis himself did not
dispute, that the officers in that case "strict[ly]" and
"scrupulously" complied with circuit precedent. 131 S. Ct. at
2428, 2434. Thus, the Court was not faced with a situation where
the police conduct was "consistent with the language of a Fourth
Amendment rule . . . announced in a case with clearly
distinguishable facts," or where "the relevant precedent did not
directly announce any general rule but involved highly analogous
facts." Id. at 2437 (Breyer, J., dissenting). Nor does it appear
that any other circuit has yet considered the boundaries of
permissible reliance after Davis.
Before Davis was decided, however, a number of state and
federal courts (including the Eleventh Circuit, as affirmed in
Davis itself) had already adopted a Davis-type reliance-on-
precedent exception to the exclusionary rule. They unanimously
held -- and we agree -- that the exception is available only where
the police rely on precedent that is "clear and well-settled."
United States v. Davis, 598 F.3d 1259, 1266 (11th Cir. 2010),
aff'd, 131 S. Ct. 2419; see also United States v. McCane, 573 F.3d
1037, 1042 (10th Cir. 2009) (search was "wholly consistent with and
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supported by" precedent); State v. Baker, 229 P.3d 650, 663 (Utah
2010) (precedent was "settled"); State v. Dearborn, 786 N.W.2d 97,
107 (Wis. 2010) (officers relied on "clear and settled law").
Indeed, the circuits that recognized the exception pre-Davis
stressed that their "precedent on a given point must be
unequivocal" for suppression to be withheld. Davis, 598 F.3d at
1266; accord United States v. Curtis, 635 F.3d 704, 714 n.28 (5th
Cir. 2011); United States v. Buford, 632 F.3d 264, 276 & n.9 (6th
Cir. 2011). We do not think Davis undermined their position. See
Mason, supra, at 64, 69 (arguing that Davis approved of the
Eleventh Circuit's approach below and therefore "the officer's
conduct must have been expressly authorized by clearly established
law" for Davis to apply). Rather, this emphasis on the clear
application of the precedent to the case at hand is consistent with
Davis's focus on deterrence; where judicial precedent does not
clearly authorize a particular practice, suppression has deterrent
value because it creates an "incentive to err on the side of
constitutional behavior." Davis, 598 F.3d at 1266-67 (quoting
United States v. Johnson, 457 U.S. 537, 561 (1982)) (internal
quotation marks omitted); see Davis, 131 S. Ct. at 2435 (Sotomayor,
J., concurring in the judgment); Wayne A. Logan, Police Mistakes of
Law, 61 Emory L.J. 69, 86-87 (2011); Mason, supra, at 71-72.3
3
The requirement that the precedent be clear and well-
settled is also consistent with the other circumstances in which
the Court has applied the good-faith exception. In particular,
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B. Davis's good faith exception applies here
The foregoing principles require us to find that
suppression would be improper here. This is certainly a closer
question in this circuit than in those that had directly addressed
the propriety of warrantless GPS tracking prior to Jones. E.g.,
Pineda-Moreno, 688 F.3d at 1090. Nevertheless, we think the
Supreme Court's decision in Knotts, 460 U.S. 276, and ours in
United States v. Moore, 562 F.2d 106 (1st Cir. 1977), are
sufficiently clear and apposite to trigger Davis here.
In Moore, we considered the government's warrantless
installation and use of "beepers" (battery-powered radio
transmitters) to track the movements of the defendants' vehicles on
public roads. 562 F.2d at 110-13. We concluded that "[w]hile a
driver has no claim to be free from observation while driving in
public, he properly can expect not to be carrying around an
uninvited device that continuously signals his presence." Id. at
112. Balancing these considerations and the needs of law
enforcement, we held that "while the lessened expectancy of privacy
associated with motor vehicles justifies the use of beepers without
a warrant to track vehicles, this can be done only if the officers
have probable cause at the time." Id. at 112-13. Importantly for
reliance on a clear and well-defined judicial rule that is later
abrogated is analogous to reliance on a subsequently invalidated
statute, Davis, 598 F.3d at 1267, a circumstance that triggers the
good-faith exception under Illinois v. Krull, 480 U.S. 340 (1987).
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present purposes, we focused almost exclusively on the defendants'
privacy interests in their movements, dismissing "the trespass
involved in affixing the beepers to the underbody of the vehicles"
as "so minimal as to be of little consequence." Id. at 111.
As the Moore court predicted, id. at 110, the issue of
beeper surveillance eventually reached the Supreme Court. In
Knotts, the Court held that "[a] person traveling 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. For
that reason, the use of a beeper to track the defendant's movements
on public roads involved "neither a 'search' nor a 'seizure' within
the contemplation of the Fourth Amendment." Id. at 285. Knotts
thus abrogated Moore's probable-cause requirement for beeper
surveillance, but it did not address the issue of a beeper's
installation on the defendant's property, see id. at 286 (Brennan,
J., concurring in the judgment), leaving undisturbed Moore's
conclusion that the trespass involved in attaching a beeper to a
car was "of little consequence."4
After Knotts and Moore, then, two points were settled in
this circuit. First, using a beeper to monitor a person's
4
Likewise, United States v. Karo, 468 U.S. 705 (1984),
held that no search or seizure occurred where the government
installed a beeper in an article that was later transferred to the
defendant (although subsequently monitoring the beeper inside a
private home was a search); like Knotts, Karo did not consider a
scenario in which the government installs a tracking device on
property that already belongs to the defendant. See id. at 712.
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movements in a car on public roads did not implicate the Fourth
Amendment, because there was no privacy interest to be infringed.
Id. at 281, 285 (majority opinion). Second, the trespass involved
in attaching a beeper to a car was, by itself, so insignificant as
to be essentially irrelevant for Fourth Amendment purposes. Moore,
562 F.2d at 111-12; see also United States v. Karo, 468 U.S. 705,
712-13 (1984) (noting that "a physical trespass is only marginally
relevant to the question of whether the Fourth Amendment has been
violated"). The question is thus whether the FBI's reliance on
these clear and settled principles to install a GPS tracker instead
of a beeper, and then to monitor it for over a week, was
objectively reasonable. We think it was.5
First, we conclude that Moore's dismissal of the initial,
trespassory installation of the beeper as essentially immaterial
would not apply any differently to the installation of a GPS
tracker. Indeed, the defendants have offered us no reason to
conclude that the act of affixing a GPS tracker to the
undercarriage of a car is, by itself, any different from installing
a beeper in the same fashion. Thus, Moore squarely supported the
agents' attachment of the GPS tracker to the Chrysler when it
5
A skeptic might wonder whether the agents in this case
actually had Moore and Knotts in mind when they attached the GPS
tracker to the Chrysler in December 2009, but we do not believe
(and the defendants do not argue) that Davis requires the
government to show actual, as well as objectively reasonable,
reliance. See Krull, 480 U.S. at 355.
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happened (although Jones has since abrogated Moore's conclusion on
the trespass question, see 132 S. Ct. at 949).
The closer question is whether Knotts clearly and
expressly authorized the subsequent monitoring of the GPS tracker
for eleven days. Like the officers in Knotts, the FBI agents in
this case used an electronic tracking device to follow the
movements of a car. But they did two things differently: they used
a GPS unit instead of a beeper, and they tracked the car for eleven
days instead of a number of hours. Do either of these differences
place the agents' conduct beyond the scope of what Knotts clearly
permitted?
On this record, we think the fact that the device was a
GPS tracker rather than a beeper does not render Knotts
inapplicable. Certainly, a GPS tracker is more capable than a
beeper,6 "but nothing inheres in the technology to take it out of
Knotts's holding." United States v. Cuevas-Perez, 640 F.3d 272,
278 (7th Cir. 2011) (Flaum, J., concurring), cert. granted and
judgment vacated, 132 S. Ct. 1534 (2012). And the defendants have
not identified anything about this particular GPS device -- except
6
Compare Renée McDonald Hutchins, Tied Up in Knotts? GPS
Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 414-21
(2007) (describing the development and capabilities of GPS
technology), with Clifford S. Fishman, Electronic Tracking Devices
and the Fourth Amendment: Knotts, Karo, and the Questions Still
Unanswered, 34 Cath. U. L. Rev. 277, 281-82 (1985) (describing
beeper technology circa 1985); see also People v. Weaver, 909
N.E.2d 1195, 1199 (N.Y. 2009) (distinguishing GPS technology from
the beeper in Knotts).
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for the duration of its use, discussed below -- that could
meaningfully distinguish it from the beeper in Knotts. See United
States v. Hernandez, 647 F.3d 216, 221 (5th Cir. 2011) (upholding
the warrantless use of a GPS tracker that functioned essentially
like the beeper in Knotts); see also Knotts, 460 U.S. at 282, 284(emphasizing that technological enhancement and increased police
efficiency do not make otherwise-lawful surveillance suspect under
the Fourth Amendment). Thus, Knotts clearly authorized the agents
to use a GPS-based tracking device in the place of a beeper. See
Andres, 703 F.3d at 835 (finding "any possible technological
differences between a 1981 'beeper' and the GPS device used in this
case" insufficient to make the government's pre-Jones reliance on
a Fifth Circuit beeper precedent unreasonable for good-faith
purposes).
That brings us to the duration of the monitoring: eleven
days here, versus less than a day in Knotts -- not a trivial
difference. But Knotts gave scant reason to think that the
duration of the tracking in that case was material to the Court's
reasoning. Rather, the Court appeared to apply a blanket rule that
"[a] person traveling in an automobile on public thoroughfares has
no reasonable expectation of privacy in his movements from one
place to another"; no such expectation attaches to information that
is, like one's public movements, "voluntarily conveyed to anyone
who wanted to look." 460 U.S. at 281. Knotts did note that
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abusive "dragnet type" surveillance might be governed by "different
constitutional principles," id. at 284, but there was no suggestion
in the Knotts opinion that this rather brusque dismissal of the
defendant's Orwellian warnings imposed a concrete temporal
limitation on the case's apparently unqualified holding. Indeed,
at the time of the search in this case, Knotts was widely and
reasonably understood to stand for the proposition that the Fourth
Amendment simply was not implicated by electronic surveillance of
public automotive movements, because the latter was merely a more
efficient "substitute . . . for an activity, namely following a car
on a public street, that is unequivocally not a search within the
meaning of the amendment." United States v. Garcia, 474 F.3d 994,
996-97 (7th Cir. 2007); see also Gordon, 2013 WL 791622, at *8
(concluding that "Jones represents an unexpected development that
has shifted law enforcement's understanding of" Knotts and Karo);
Mason, supra, at 65 (until Jones, "everyone thought" the "key fact"
in Knotts and Karo "was that the cars were being monitored while
they were on public roads, where anyone could see them").
Ultimately, then, Knotts and Moore authorized the agents'
conduct here. Knotts's apparent bright-line rule that the Fourth
Amendment is unconcerned with police surveillance of public
automotive movements is analogous to Belton's bright-line rule
authorizing officers to search the passenger compartment of an
arrestee's car. See Davis, 132 S. Ct. at 2424. Thanks to Jones
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and Gant, respectively, both rules have turned out not to be as
categorical as they seemed, but that is not a reason to penalize
the police for applying them faithfully before those clarifications
occurred. Id. at 2428. As the Eleventh Circuit did in Davis with
regard to the pre-Gant Belton rule, we emphasize that the apparent
clarity of the pre-Jones Knotts rule is "critical to our decision."
Davis, 598 F.3d at 1267. Also crucial is the fact that Moore
plugged the gap left by Knotts and Karo: until Jones, it was the
law of this circuit that the trespass involved in installing a
tracking device on a car was, by itself, immaterial for Fourth
Amendment purposes. Moore, 562 F.2d at 111-12.
In sum: at the time of the GPS surveillance in this case,
settled, binding precedent in the form of Knotts and Moore
authorized the agents' conduct. Davis thus precludes suppression
of the resulting evidence, even if the agents' actions violated the
Fourth Amendment (which we do not decide). Accordingly, we affirm
the district court's ruling, albeit on different grounds. See
United States v. Sanchez, 612 F.3d 1, 4 (1st Cir. 2010).
III. Conclusion
Davis's good-faith exception is not a license for law
enforcement to forge ahead with new investigative methods in the
face of uncertainty as to their constitutionality. "The
justifications for the good-faith exception do not extend to
situations in which police officers have interpreted ambiguous
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precedent or relied on their own extrapolations from existing
caselaw." Davis, 598 F.3d at 1267. The good-faith exception is,
however, properly applied in cases like this one (or Davis itself),
where new developments in the law have upended the settled rules on
which the police relied. Accordingly, we affirm the district
court's denial of Sparks and Michaud's motion to suppress.
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