In United States v. Aispuro-Haros, No. 11-2293 (D. N.M. 2012), the court ruled that pre-Jones use of a GPS device without a warrant was an unconstitutional search under Jones. However, despite a lack of precedent in the Tenth Circuit for the relevant time, the court held that the exclusionary rule does not apply.
The defendant is charged with crimes related to drug trafficking and filed to a motion to suppress due to law enforcement having tracked him with a GPS device without first obtaining a search warrant. The government conceded that the use of the device was unconstitutional, but argued that the exclusionary rule should not apply. The court agreed:
If the experienced, thoughtful, and knowledgeable jurists of the Seventh, Eighth, and Ninth Circuits did not know that the use of a GPS device on a vehicle constituted a warrantless search in violation of the Fourth Amendment, then it is not reasonable to assert that the officers involved in the underlying investigation in this case should have known that either.The D.C. Circuit's decision in Maynard had already been released at the time of the use, but the court excused that on account of it being the minority view. Maynard was later affirmed by the Supreme Court in Jones.
As has been explained many times on this blog, this approach to the application of the exclusionary rule to GPS use is the minority. Most trial courts within the Seventh and Ninth Circuits have not applied the exclusionary rule because of existing precedent allowing the use, whereas most courts in other circuits have suppressed the evidence.