The good faith exception to the exclusionary rule applies to evidence obtained during a period when binding Wisconsin appellate precedent permitted the warrantless installation of a global positioning system (GPS) device. Thus, even though the installation of the GPS device on the defendant’s vehicle was unconstitutional under United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), exclusion of the evidence obtained from the device is an inappropriate remedy.
In July 2011, as part of an investigation into suspected illegal drug activity, police twice affixed a GPS device to the exterior of Oberst’s vehicle while it was parked in the lot of a business. Police used the data they retrieved from the GPS device to help gather evidence that led to four drug-related charges filed against Oberst in early August 2011. (¶2). In January 2012, while Oberst’s case was pending, the Supreme Court issued its decision in Jones. Oberst then filed a motion to suppress the GPS evidence. (¶3).
The circuit court agreed the warrantless installation of the GPS device was unlawful under Jones, but it also concluded suppression was inappropriate because the police acted in reasonable reliance on binding Wisconsin precedent that held installation of a GPS devices isn’t a search. (¶3). Applying State v. Dearborn, 2010 WI 84, ¶51, 327 Wis. 2d 252, 786 N.W.2d 97, and Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419, 2423-24 (2011), the court of appeals agrees:
¶8 In this case, at the time that the officers installed the GPS device on Oberst’s car, binding appellate precedent in Wisconsin held that “no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use the device to track the vehicle while it is in public view.” State v. Sveum, 2009 WI App 81, ¶19, 319 Wis. 2d 498, 769 N.W.2d 53 (Sveum I). Because we determined that such circumstances did not constitute a search, we found police did not require a warrant prior to the installation of a GPS device. Id., ¶6. Although Jones overruled this holding from Sveum I while Oberst’s case was pending before the trial court, “the good faith exception precludes application of the exclusionary rule where officers conduct a search in objectively reasonable reliance upon clear and settled Wisconsin precedent that is later deemed unconstitutional by the United States Supreme Court.” Dearborn, 327 Wis. 2d 252, ¶4. The good faith exception to the exclusionary rule applies in this case, and the trial court properly denied Oberst’s motion to suppress.