A few months ago, I mentioned that an Alabama federal district court denied the suppression of GPS evidence because a 1981 circuit ruling allowed "the warrantless installation of an electronic tracking device ... to the exterior of a vehicle parked in a public place ... where the agents possess reasonable suspicion." United States v. Michael, 645 F.2d 252, 256-59 (5th Cir. 1981) (en banc). A Mississippi court refused to uphold the use of GPS under the same case.
In United States v. Nelson, 2012 U.S. Dist. LEXIS 103944 (S.D. Ga. 2012), a Georgia magistrate denied a motion to suppress after applying Michael and the Davis good faith rule. The GPS device had been placed on the defendant's vehicle on January 14, 2012 - just weeks before the Supreme Court's decision in United States v. Jones. The court held:
The record in this case establishes that when Agent Klarer installed the GPS device on Nelson’s vehicle he relied upon established FBI policy that conformed with binding Eleventh Circuit precedent. Even assuming that reasonable suspicion was a necessary predicate for the warrantless installation of the device, (and it is not clear that even reasonable suspicion was required under then-existing Eleventh Circuit precedent), Nelson did not dispute the government’s assertion at the hearing that the agents reasonably believed that Nelson was involved in the kidnappings at the time they placed the tracker on his vehicle. In any event, the Court finds that the agents had developed sufficient information to furnish reasonable suspicion that Nelson was involved in the kidnappings: he had ties to Marshlick (having dated Marshlick’s wife’s niece), he was the first person Downs encountered after his release by the kidnappers, he knew details about the Downs kidnapping that Downs had not revealed to him during their brief encounter, and he was a suspect in numerous other crimes (including the assault of his former girlfriend and the torching of her mother’s home). Because Agent Klarer acted in compliance with binding appellate precedent when he attached the GPS locator to Nelson’s vehicle, the exclusionary rule has no application in this case.Michael was decided prior to the modern day Eleventh Circuit's creation, making it binding authority on today's Fifth and Eleventh Circuits.