Eleventh Circuit Court of Appeals - Published Opinions

Friday, December 27, 2013

Smith: Warrantless GPS surveillance in good faith pre-Jones

In U.S. v. Smith, No. 12-11042 (Dec. 23, 2013), the Court rejected the argument that evidence should have been suppressed because it was obtained by warrantless GPS surveillance, finding that, at the time the officers installed GPS trackers on Smith’s vehicle they acted in reasonable reliance upon this Court’s then-binding precedent. After the GPS surveillance at issue in Smith’s case, the United States Supreme Court decided U.S. v. Jones, 132 S.Ct. 945 (2012), which held that placing a GPS tracking device on a suspect’s car constituted a “search” for purposes of the Fourth Amendment. Invoking Jones, Smith asked the Court to hold that the search in his case was unreasonable – an issue the Supreme Court had not reached in Jones. The Court noted that in Davis v. U.S., 131 S.Ct. 2419 (2011), the Supreme Court had held that the good faith exception to the exclusionary rule applies to searches conducted in objectively reasonable reliance on binding appellate precedent that is subsequently overruled. The Court noted that in U.S. v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc), the Court’s predecessor Court had held that the warrantless use of a beeper to track a suspect’s movements on public roads involved neither a search nor a seizure under the Fourth Amendment. The Court rejected Smith’s attempt to distinguish between a beeper and a GPS tracking device, citing other cases that had rejected this same argument, and stating: “Michael [in 1981] established the constitutionality of warrantless GPS surveillance.” The police officers were not mistaken in relying on Michael “as binding precedent.” The Court acknowledged conflict with U.S. v. Katzin, 732 F.3d 187 (3rd Cir. 2013). Turning to sentencing, the Court rejected the challenge to the district court’s reliance on acquitted conduct in enhancing Smith’s sentence, noting that even after Booker sentencing courts may consider such conduct in determining the appropriate sentence.