People v. LeFlore

2015 IL 116799

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 116799)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

KEITH LeFLORE, Appellee.

Opinion filed May 21, 2015.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Kilbride and Karmeier concurred in the

judgment and opinion.

Justice Burke dissented, with opinion, joined by Justices Freeman and Theis.

OPINION

¶1 Defendant, Keith LeFlore, was charged with aggravated robbery, robbery and

burglary in connection with an April 24, 2009, robbery of a gas station in Aurora,

Illinois. Defendant filed a pretrial motion to quash arrest and suppress evidence,

arguing that police improperly used a Global Positioning System (GPS) device

without a warrant to track the movements of a vehicle he used. The trial court

denied the motion. Following a jury trial, defendant was convicted of all charges,

and sentenced to 20 years in prison on the aggravated robbery charge. The appellate

court reversed and remanded. We allowed the State’s petition for leave to appeal.

Ill. S. Ct. R. 315 (eff. July 1, 2013).

¶2 BACKGROUND

¶3 In April 2009, Aurora police received a tip from the Crime Stoppers hotline that

defendant was committing burglaries on the west side of Aurora and bringing

“various items” into his apartment complex. The police located defendant’s address

at the apartment complex after a data search. Police also discovered that defendant

was on mandatory supervised release from prison. They also knew that in a recent

police encounter defendant had been arrested for fleeing in a red Kia Spectra with

license plate X743***. The Kia was registered to Stephanie Powell, who lived at

the same address as defendant.

¶4 On April 23, 2009, Aurora police detective Jeremy Shufelt placed a GPS device

under the rear bumper of the Kia while it was parked at the apartment complex

where defendant resided. Detective Shufelt did not obtain a warrant to place the

GPS device on the car’s exterior. Early the next morning, a local gas station located

a few minutes from defendant’s residence was held up. Tracking from the GPS

device showed that the Kia was parked near the gas station at the time it was robbed

around 4:40 a.m.

¶5 A surveillance camera captured the robbery on video. It showed that the robber

used what looked like a shotgun. He took the cash drawer and a carton of Newport

cigarettes from the cashier and fled. The video also showed that the robber was

wearing a pair of Steve Madden athletic shoes, which have a distinctive striping

pattern on them.

¶6 On the evening of the same day as the robbery, police conducted a parole search

of defendant’s residence. Defendant arrived at the apartment complex driving the

Kia at the same time the police were conducting their search of his residence.

Defendant was taken into custody for driving with a revoked license. He was

wearing Steve Madden athletic shoes. During the search, the police recovered a

hollow metal cane that had the rubber tip removed from the end.

¶7 When defendant was interviewed, the police told him that he had been under

surveillance, but they did not tell him about the use of the GPS device. The police

also told him that the apartment complex’s video camera showed him leaving early

in the morning. After the police placed the metal cane in the interview room,

defendant confessed, explaining that he made the cane look like a gun by removing

the rubber stopper at the end and placing a black grocery-type bag around the

center. The cashier from the store later picked defendant out of a photo lineup.

-2-

¶8 Defendant was eventually charged with aggravated robbery, robbery and

burglary in the circuit court of Kane County. Defendant filed a motion to quash his

arrest and suppress evidence, arguing that it was solely through information

received through the GPS tracking device that defendant became a suspect in the

robbery and therefore all the evidence against him should be suppressed. The trial

court denied the motion, finding that the use and “the existence” of the GPS device,

which did not interfere with defendant’s possessory interest in the vehicle, did not

constitute a search under either the federal or state constitutions. Relying upon

United States v. Knotts, 460 U.S. 276 (1983), United States v. Karo, 468 U.S. 705

(1984), and United States v. Garcia, 474 F.3d 994 (7th Cir. 2007), as controlling

authority, the court concluded that the fourth amendment was not violated because

“the information secured by the police was equal to what personal surveillance

would have revealed and [was] available from the observations that could have

been made on or about the public way or the publicly accessible locations.”

¶9 Defendant represented himself at his trial and the jury found him guilty of all

charges. The trial court entered judgment on the aggravated battery charge and

sentenced defendant to 20 years in prison. On appeal, defendant argued that the trial

court erred in denying his motion to quash arrest and suppress evidence, and that

the court erroneously allowed him to waive counsel without properly admonishing

him under Illinois Supreme Court Rule 401(a) (eff. July 1, 1984).

¶ 10 While this case was pending on appeal in the appellate court, the United States

Supreme Court decided United States v. Jones, 565 U.S. ___, ___, 132 S. Ct. 945,

948-49 (2012), which held that the attachment of a GPS tracking device and the

subsequent use of the device to monitor a vehicle’s movements on public streets

was a search under the fourth amendment because the placement of the device

constituted an unlawful trespass. Also while this case was pending on appeal, the

Supreme Court decided Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419

(2011). In Davis, the Court applied the good-faith exception to the exclusionary

rule to an automobile search conducted by a state police officer “in objectively

reasonable reliance on binding judicial precedent.” Id. at ___, 131 S. Ct. at

2428-29.

¶ 11 Prior to the oral argument before the appellate court in the present case, the

State submitted Jones as additional authority. 2013 IL App (2d) 100659, ¶ 83

(Birkett, J., concurring in part and dissenting in part). The parties were then

directed to address Davis and whether the good-faith exception applied. Id. At oral

-3-

argument, the State argued that Knotts and Karo were “binding precedent” at the

time the search was conducted, and defendant argued that those two cases were

distinguishable because they involved “beeper” tracking devices and not the more

advanced GPS technology used here. Id. ¶ 108.

¶ 12 A divided appellate court reversed defendant’s conviction based on Jones and

remanded for further proceedings to determine whether defendant borrowed the

vehicle with Powell’s consent so as to establish standing under Jones. Id. ¶ 29

(majority opinion). The appellate court majority accepted defendant’s argument

that the good-faith exception to the exclusionary rule was not applicable due to the

more advanced nature of GPS tracking. Id. ¶¶ 44-45. However, Justice Birkett in

his partial dissent determined, among other things, that the good-faith exception

applied and that the evidence that resulted from the GPS tracking should not be

excluded. He concluded that the trial court correctly ruled that Knotts and Karo

were “binding precedent” that controlled the outcome at the time the search was

conducted in April 2009. Id. ¶ 115 (Birkett, J., concurring in part and dissenting in

part). Finally, the appellate court was in unanimous agreement that the defendant’s

convictions must be reversed and the cause remanded for a new trial based on the

trial court’s failure to properly admonish defendant pursuant to Supreme Court

Rule 401(a) (Ill. S. Ct. R. 401(a) (eff. July 1, 1984). 2013 IL App (2d) 100659, ¶ 60.

¶ 13 We allowed the State’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July 1,

2013). Before this court, the State concedes that the appellate court correctly

determined that defendant must be retried based on the lack of proper

admonishments under Supreme Court Rule 401(a). The State contends, however,

that upon remand for a new trial, there is no need for the trial court to hold a new

suppression hearing. In that regard, three issues are raised before this court: (1)

whether the fourth amendment permitted police to place a GPS device on a car

associated with defendant, where defendant was on mandatory supervised release

from prison at the time and thus had a diminished expectation of privacy from that

of an ordinary citizen; (2) whether defendant is entitled to a remand to present new

evidence to establish his interest in the Kia so that he can avail himself of the

holding in Jones; and (3) whether the good-faith exception to the exclusionary rule

is applicable under the circumstances of this case so that the evidence compiled

against defendant as a result of the installation and use of the GPS device should not

be excluded. For the reasons that follow, we find that the good-faith exception to

the exclusionary rule is applicable and that a new suppression hearing is therefore

-4-

not warranted. Because this issue is dispositive, we find it unnecessary to address

the two other issues raised by the parties.

¶ 14 ANALYSIS

¶ 15 The fourth amendment to the United States Constitution provides that:

“[t]he right of the people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not be violated, and

no Warrants shall issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be searched, and the

persons or things to be seized.” U.S. Const., amend. IV.

¶ 16 In a similar fashion, the Illinois Constitution provides that:

“[t]he people shall have the right to be secure in their persons, houses,

papers and other possessions against unreasonable searches, seizures, invasions

of privacy or interceptions of communications by eavesdropping devices or

other means. No warrant shall issue without probable cause, supported by

affidavit particularly describing the place to be searched and the persons or

things to be seized.” Ill. Const. 1970, art. I, § 6.

This court interprets the search and seizure clause of the Illinois Constitution in

“limited lockstep” with its federal counterpart. People v. Caballes, 221 Ill. 2d 282,

314 (2006).

¶ 17 Searches conducted without a warrant are per se unreasonable under the fourth

amendment subject only to a few exceptions. Katz v. United States, 389 U.S. 347,

357 (1967). The Supreme Court created the exclusionary rule as a general deterrent

to future fourth amendment violations. Arizona v. Evans, 514 U.S. 1, 10 (1995).

Despite the exclusionary rule’s relationship to the fourth amendment, however,

there is no constitutional right to have the fruits of an illegal search or seizure

suppressed at trial. United States v. Katzin, 769 F.3d 163, 170 (3d Cir. 2014)

(en banc) (noting that the fourth amendment “ ‘says nothing about suppressing

evidence in violation of [its] command’ ” (citing Davis, 564 U.S. at ___, 131 S. Ct.

at 2426)). The judicially created doctrine of exclusion at times suppresses the

evidence and makes it unavailable for trial. However, even when a fourth

amendment violation has occurred, the evidence that resulted will not be

-5-

suppressed when the good-faith exception to the exclusionary rule applies. Katzin,

769 F.3d at 169-70.

¶ 18 In the present case, we need not determine whether Aurora police conducted an

unreasonable search in violation of Jones. Nor do we need to remand for further

proceedings to determine whether defendant had a sufficient possessory interest in

the Kia to avail himself of the holding in Jones. This is because even assuming that

the search violated the fourth amendment, the good-faith exception is applicable

and suppression is not warranted.

¶ 19 Defendant seeks to avoid that result by arguing that Aurora police do not fall

under the good-faith exception as explained in Davis because Knotts and Karo are

distinguishable cases that the officers could not have reasonably relied upon.

Defendant argues that both cases are distinguishable because they involved beeper

tracking and not GPS technology and did not involve a trespass of the device unto

the vehicle’s exterior without the consent of the owner. Defendant also argues that

police could not have reasonably relied upon Garcia, a Seventh Circuit Court of

Appeals case directly on point, because that case “is not binding precedent on

Illinois courts.” In defendant’s view, binding precedent only exists if it is from the

same jurisdiction in which the case is prosecuted, is followed by police to the

“letter,” and is on all fours with the case to be decided.

¶ 20 As we will explain more fully below, defendant’s reading of Davis is incorrect

and too narrow. Acceptance of the narrow interpretation of Davis proposed by

defendant would mean neglecting or ignoring the important principles that have

been set forth by the Supreme Court to help determine whether the good-faith

exception to the exclusionary rule should apply in any given case. We also note at

the outset that all of the federal circuits that have considered post-Jones whether the

good-faith exception applies in cases of warrantless GPS searches conducted

pre-Jones have rejected a narrow reading of Davis and have instead concluded that

the good-faith exception applies under circumstances identical to the present case.

E.g., United States v. Katzin, 769 F.3d 163 (3d Cir. 2014) (en banc) (although the

facts of Knotts and Karo differ from Jones, it is the rationale that underpins those

decisions that is considered binding appellate precedent and that it was objectively

reasonable for the officers to rely upon the precedent under Davis); United States v.

Stephens, 764 F.3d 327, 338 (4th Cir. 2014) (“[w]ithout the benefit of hindsight ***

and with no contrary guidance from the Supreme Court or this Court, *** a

reasonably well-trained officer in this Circuit could have relied on Knotts as

-6-

permitting the type of warrantless GPS usage in this case”); United States v. Brown,

744 F.3d 474, 478 (7th Cir. 2014) (rehearing and rehearing en banc denied)

(observing that “all of the extant appellate precedent is on the side of applying

Davis” and its good-faith exception to “all pre-Jones GPS tracking,” even when

installation was nonconsensual and without a warrant (emphasis in original));

United States v. Aguiar, 737 F.3d 251, 261 (2d Cir. 2013) (found that at the time

police placed the GPS tracking device on the defendant’s car in 2009, law

enforcement could reasonably rely upon the binding appellate precedent of Knotts

and Karo); United States v. Sparks, 711 F.3d 58, 65 (1st Cir. 2013) (noting that

even though the circuit had not addressed warrantless GPS tracking prior to Jones,

the Supreme Court’s decision in Knotts was “sufficiently clear and apposite” to

trigger Davis’s good-faith exception); see also Kelly v. State, 82 A.2d 205, 214

(Md. 2013) (the state’s highest court determined that Knotts was sufficient binding

appellate precedent in Maryland to authorize GPS tracking at the time officers

installed the device to the defendant’s vehicle pre-Jones).

¶ 21 I. Exclusionary Rule and the Good-Faith Exception

¶ 22 We turn now to the guiding principles that should govern any analysis as to the

applicability of the exclusionary rule or its good-faith exception. There is no

constitutional right to have the evidence resulting from an illegal search or seizure

suppressed at trial. Katzin, 769 F.3d at 170 (quoting Davis, 564 U.S. at ___, 131 S.

Ct. at 2426). The mere fact of a fourth amendment violation does not mean that

exclusion necessarily follows. Id. Instead, application of the exclusionary rule has

been restricted to those “unusual cases” where it can achieve its sole objective: to

deter future fourth amendment violations. Id. (citing United States v. Leon, 468

U.S. 897, 909 (1984)). The Supreme Court has repeatedly expressed the notion that

“exclusion ‘has always been our last resort, not our first impulse.’ ” Herring v.

United States, 555 U.S. 135, 140 (2009).

¶ 23 In order for exclusion of the evidence to apply, the deterrent benefit of

suppression must outweigh the “substantial social costs.” Leon, 468 U.S. at 907.

“ ‘Exclusion exacts a heavy toll on both the judicial system and society at large,’

because it ‘almost always requires courts to ignore reliable, trustworthy evidence

bearing on guilt or innocence,’ and ‘its bottom-line effect, in many cases, is to

suppress the truth and set the criminal loose in the community without

-7-

punishment.’ ” Stephens, 764 F.3d at 335 (quoting Davis, 564 U.S. at ___, 131 S.

Ct. at 2427). “As this result conflicts with the ‘truth-finding functions of judge and

jury,’ United States v. Payner, 447 U.S. 727, 734 *** (1980), exclusion is a ‘bitter

pill,’ Davis, 131 S. Ct. at 2427, swallowed only as a ‘last resort,’ Hudson, 547 U.S.

at 591, 126 S. Ct. 2159.” Katzin, 769 F.3d at 171. In order for the exclusionary rule

to be appropriate then, the deterrent benefits must outweigh its heavy costs. Davis,

564 U.S. at ___, 131 S. Ct. at 2427.

¶ 24 Where the particular circumstances of a case show that police acted with an

“ ‘objectively “reasonable good-faith belief” that their conduct [was] lawful,’ ” or

when their conduct involved only simple, isolated negligence, there is no illicit

conduct to deter. Katzin, 769 F.3d at 171 (quoting Davis, 564 U.S. at ___, 131 S.

Ct. at 2427-28, quoting Leon, 468 U.S. at 909). In such a case, “ ‘the deterrence

rationale loses much of its force and exclusion cannot pay its way.’ ” (Internal

quotation marks omitted.) Id. (quoting Davis, 564 U.S. at ___, 131 S. Ct. at 2428,

quoting Leon, 468 U.S. at 907 n.6, 919). Thus, exclusion is invoked only where

police conduct is both “sufficiently deliberate” that deterrence is effective and

“sufficiently culpable” that deterrence outweighs the cost of suppression. Herring,

555 U.S. at 144; Katzin, 769 F.3d at 171.

¶ 25 The “pertinent analysis of deterrence and culpability is objective, not an inquiry

into the subjective awareness of arresting officers.” (Internal quotation marks

omitted.) Herring, 555 U.S. at 145. Thus, in determining whether the good-faith

exception applies, a court must ask “the objectively ascertainable question whether

a reasonably well trained officer would have known that the search was illegal in

light of all of the circumstances.” (Internal quotation marks omitted.) Id. (quoting

Leon, 468 U.S. at 922 n.23).

¶ 26 II. Davis’s Application to the Specific Circumstances Before It

¶ 27 In Davis, the Supreme Court applied the good-faith exception in one specific

instance: to an automobile search following an arrest conducted by a local

Greenville, Alabama, city police officer investigating a state DUI offense. The

question for the Court was whether the officer could have reasonably relied upon an

Eleventh Circuit Court of Appeals precedent as authority for his conduct in

deciding to search the vehicle. In that case, police found in the course of their

search a handgun in defendant’s jacket left inside the vehicle, and defendant was

-8-

subsequently prosecuted for a firearm charge in federal court. Davis held that

“searches conducted in objectively reasonable reliance on binding appellate

precedent are not subject to the exclusionary rule.” Davis, 564 U.S. at ___, 131 S.

Ct. at 2423-24. The Court explained that “[a]n officer who conducts a search in

reasonable reliance on binding appellate precedent does no more than ac[t] as a

reasonable officer would and should act under the circumstances. [Citation.] The

deterrent effect of exclusion in such a case can only be to discourage the officer

from do[ing] his duty.” (Internal quotation marks omitted.) Id. at ___, 131 S. Ct. at

2429. Of paramount importance to the Court’s holding was the lack of police

culpability:

“Under our exclusionary-rule precedents, [the] acknowledged absence of

police culpability dooms Davis’s claim. Police practices trigger the harsh

sanction of exclusion only when they are deliberate enough to yield

‘meaningfu[l]’ deterrence, and culpable enough to be ‘worth the price paid by

the justice system.’ [Citation.] The conduct of the officers here was neither of

these things. The officers who conducted the search did not violate Davis’s ***

rights deliberately, recklessly, or with gross negligence. [Citation.] Nor does

this case involve any ‘recurring or systemic negligence’ on the part of law

enforcement. [Citation.] The police acted in strict compliance with binding

precedent, and their behavior was not wrongful. Unless the exclusionary rule is

to become a strict-liability regimen, it can have no application in this case.

¶ 28 Indeed, in 27 years of practice under Leon’s good-faith exception, we have

‘never applied’ the exclusionary rule to suppress evidence obtained as a result of

nonculpable, innocent police conduct.” Id. at ___, 131 S. Ct. at 2428-29.

¶ 29 Thus, if it can be said in the present case that “binding appellate precedent”

existed on April 23, 2009, allowing for warrantless GPS use when Detective

Shufelt installed the device, then Davis controls without a doubt and the

exclusionary rule does not apply. However, even if it could be concluded that

“binding appellate precedent” did not exist in this case, it would not end the

inquiry. It would still be necessary to conduct the “good-faith inquiry” and consider

“whether a reasonably well trained officer would have known that the search was

illegal in light of all of the circumstances.” (Internal quotation marks omitted.)

Herring, 555 U.S. at 145. Clearly, application of the good-faith inquiry is not

limited to the specific circumstances addressed by the Supreme Court in Davis or

any other Supreme Court case. Stephens, 764 F.3d at 336. The Supreme Court has

-9-

found the exclusionary rule to be inapplicable in a variety of settings after

undertaking the good-faith analysis, and the fact that a court might apply the

good-faith exception in a new context not yet addressed by the Supreme Court does

not mean that it is creating a “new, freestanding exception” to the exclusionary rule.

Id. at 336 n.10; see also Davis, 564 U.S. at ___, 131 S. Ct. at 2428 (noting that

“[t]he Court has over time applied this ‘good-faith’ exception across a range of

cases”).

¶ 30 III. Exclusionary Rule Does Not Apply for Three Reasons

¶ 31 We find that application of the exclusionary rule to this case is not appropriate

for three reasons. First, the exclusionary rule does not apply because at the time of

Detective Shufelt’s conduct in April 2009, the United States Supreme Court’s

decisions in Knotts and Karo were “binding appellate precedent” that he could have

reasonably relied upon. Second, we find in the alternative that, pursuant to the

Supreme Court’s general good-faith analysis, the police conduct in relying on the

legal landscape that existed at the time was objectively reasonable and a reasonable

officer had no reason to suspect that his conduct was wrongful under the

circumstances. And third, this case fits squarely within the specific holding of

Davis, because United States v. Garcia, 474 F.3d 994, 996-97 (7th Cir. 2007), was

binding precedent as far as the Aurora police detective was concerned and he stood

in exactly the same shoes as the Alabama police officer in Davis that relied upon

binding Eleventh Circuit Court of Appeals precedent when he conducted a search

in the course of investigating a state law traffic offense. Accordingly, suppression

of the evidence is not warranted for each of these reasons.

¶ 32 IV. Knotts and Karo Were Binding Appellate Precedent

¶ 33 There is no question that decisions of the United States Supreme Court

interpreting fourth amendment law are binding precedent for Illinois police officers

and Illinois courts. We conclude that the Supreme Court cases of Knotts and Karo

clearly authorized the police conduct in this case. Even though the underlying facts

of those cases differ from the facts of the present case, it is the rationale that

underlies those cases that is relevant to our discussion. See Katzin, 769 F.3d at

173-74; Stephens, 764 F.3d at 337-38.

- 10 -

¶ 34 In Knotts, the police were investigating suspects relative to a conspiracy to

manufacture illegal drugs. Knotts, 460 U.S. at 278. The police arranged for one of

the suspects to voluntarily take into his vehicle a container of chloroform that,

unbeknownst to the suspect, contained a beeper. By tracking the signals emitted

from the beeper, police were able to locate it at defendant’s secluded manufacturing

site. The defendant sought to suppress the evidence that was obtained as a result of

the warrantless monitoring of the beeper. The Supreme Court held that the use of

the beeper to track a vehicle was not a search under the fourth amendment. Id. at

285. The Court explained that “[a] person traveling in an automobile on public

thoroughfares has no reasonable expectation of privacy in his movements from one

place to another,” and the beeper simply revealed what could have been seen by the

public through visual surveillance and it made no difference that the officers

“sensory faculties” were augmented by its use. Id. at 281, 282.

¶ 35 In Karo, the defendant ordered 50 gallons of ether (for use in cocaine

smuggling) from an informant. Karo, 468 U.S. at 708. After obtaining the

informant’s consent, federal agents substituted one of the informant’s cans of ether

with its own can, which contained a beeper. Defendant bought the can and took it

into his car. For the next several months, the agents monitored the beeper to

determine the location of the ether. One of the questions presented before the

Supreme Court was whether the warrantless installation of the beeper was legal. Id.

at 711.

¶ 36 The Court in Karo concluded that the warrantless installation of the beeper did

not violate the fourth amendment. Id. at 713. The Court found that the transfer of

the can with the beeper did not convey any information, and although there was a

potential that the defendant’s privacy could be invaded, the transfer itself infringed

no privacy interest. Id. at 712. Moreover, the Court found that the transfer was not a

seizure despite the “technical trespass on the space occupied by the beeper,” which

the Court referred to as “unknown and unwanted foreign object.” Id. The Court

then proceeded to “broadly discredit[ ] the relevance of trespass in the context of

electronic surveillance of vehicles: ‘[A] physical trespass is only marginally

relevant to the question of whether the Fourth Amendment has been violated, ... for

an actual trespass is neither necessary nor sufficient to establish a constitutional

violation.’ ” Katzin, 769 F.3d at 175 (quoting Karo, 468 U.S. at 712-13); see also

Aguiar, 737 F.3d at 261 (also noting that Karo discounted the importance of

trespass in placing a tracking device).

- 11 -

¶ 37 As the Court of Appeals, Second Circuit, explained in Aguiar:

“Karo’s de minimis treatment of the trespass issue gave no indication that the

issue of trespass would become the touchstone for the analysis in Jones.

Moreover, Karo’s brushing off of the potential trespass fits logically with

earlier Supreme Court decisions concluding that ‘the physical characteristics of

an automobile and its use result in a lessened expectation of privacy therein.’ ”

Aguiar, 737 F.3d at 261 (quoting New York v. Class, 475 U.S. 106, 112 (1986)

(to examine the exterior of an automobile does not constitute a search)); see

also Cardwell v. Lewis, 417 U.S. 583, 591 (1974) (plurality opinion)

(warrantless taking of paint scrapings from the exterior of a vehicle does not

constitute an unlawful search). 1

¶ 38 We conclude that it was objectively reasonable for the police to rely upon

Knotts and Karo for the conclusion that warrantless installation and monitoring of

the GPS device was legal. We acknowledge that the facts are different here, but

again it was reasonable for Detective Shufelt to rely upon the legal principles set

forth by the Supreme Court. Here, police monitored the movement of the Kia by

GPS not by a beeper signal. But there is no legally significant difference between

the two technologies, and in both cases the devices were “unknown and unwanted

objects.” Moreover, the police surreptitiously affixed a GPS device to the underside

of the Kia’s bumper rather than surreptitiously “tricking him into unwittingly

taking the GPS device into his vehicle,” but otherwise the conduct of law

enforcement here “echoed that in Knotts and Karo.” Katzin, 769 F.3d at 176. Just

like in Karo, the attachment of the GPS device did not itself convey any

information or infringe any privacy interest apart from its use.

¶ 39 We fully agree with the conclusion reached by the United States Court of

Appeals, Third Circuit, in its en banc decision in Katzin in considering the same

issue under the identical facts presented here: “It would have been objectively

reasonable for a law enforcement officer to conclude that Karo’s sweeping

rejection of the trespass theory applied not only to the [federal] agents’ elaborate

ruse therein, but also to the unremarkable strategy of magnetically attaching a

battery-operated GPS unit onto the exterior of a vehicle. In sum *** the Supreme

1

It must be recognized that there would have been no merit to any argument raised before Jones

that a physical trespass to private property, standing alone, would constitute a search. See, e.g.,

Florida v. Riley, 488 U.S. 445, 459 n.3 (1989) (noting that Katz v. United States, 389 U.S. 347, 351

(1967), “made plain that the question whether or not the disputed evidence had been procured by

means of a trespass was irrelevant”).

- 12 -

Court’s rationale was broad enough to embrace the agents’ conduct, and their

reliance on this binding appellate precedent was objectively reasonable under

Davis.” Katzin, 769 F.3d at 175.

¶ 40 V. Conclusion That Knotts and Karo Are Binding Precedent for Pre-Jones GPS

Searches Is Supported by All of the Federal Court of Appeals Decisions to Address

the Issue

¶ 41 In the aftermath of Jones, all of the federal circuit court of appeals decisions to

directly consider whether Knotts and/or Karo are binding appellate precedent under

Davis—so that evidence obtained through warrantless GPS installation and use

pre-Jones should not be excluded—have answered the question in the affirmative

and have applied the good-faith exception. See United States v. Katzin, 769 F.3d

163, 173-75 (3d Cir. 2014); United States v. Stephens, 764 F.3d 327, 338 (4th Cir.

2014); United States v. Aguiar, 737 F.3d 251, 261-62 (2d Cir. 2013); see also

United States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014) (finding Knotts and Karo

are binding appellate precedent for purposes of consensual GPS installation and

subsequent monitoring; and stating that “all of the extant appellate precedent is on

the side of applying Davis[’s]” good-faith exception to all nonconsensual searches

conducted pre-Jones as well, and doubting the deterrent benefit of prohibiting

police from relying on out-of-circuit authority just because a particular circuit lacks

its own authority); United States v. Sparks, 711 F.3d 58, 65, 67 (1st Cir. 2013). 2

Thus, the First, Second, Third and Fourth Circuits all clearly hold that Knotts

and/or Karo are binding appellate precedent for purposes of Davis. Additionally,

many of the other circuits will likely not have much opportunity to address this

precise point because they already had decided cases before Jones was decided,

holding that warrantless attachment and use of a GPS device on a suspect’s vehicle

was acceptable under Knotts and/or Karo. Consequently, there would be no need to

consider Knotts and Karo specifically as supporting application of the good-faith

exception where their own circuit precedent had already existed. See, e.g., United

States v. Hernandez, 647 F.3d 216, 220-21 (5th Cir. 2011) (relying on Knotts and

its own prior precedent on beepers to hold that warrantless GPS attachment and

2

Sparks also relied upon its own pre-Jones precedent in United States v. Moore, 562 F.2d 106

(1st Cir. 1977), a case decided years before Knotts. Sparks did not delineate where its reliance on

Knotts ended and its reliance on Moore began, but Sparks relied upon Knotts as binding appellate

precedent for the same reasons we do. See Sparks, 711 F.3d at 65-67.

- 13 -

monitoring was not a search in a case decided before Jones); United States v.

Garcia, 474 F.3d 994, 996-97 (7th Cir. 2007) (same holding that warrantless GPS

installation and use was not a search); United States v. Marquez, 605 F.3d 604, 610

(8th Cir. 2010) (GPS installation and use requires only reasonable suspicion, not a

warrant); United States v. Pineda-Moreno, 591 F.3d 1212, 1215-17 (9th Cir. 2010)

(GPS installation and use is not a search); United States v. McIver, 186 F.3d 1119,

1126-27 (9th Cir. 1999) (holding that GPS installation was not a search); United

States v. Smith, 387 F. App’x 918, 921 (11th Cir. 2010) (per curiam) (installation of

a GPS device did not violate the fourth amendment because the defendant had no

reasonable expectation of privacy in the exterior of his vehicle). There is, then,

nearly a clean sweep across the federal circuits holding that Knotts and Karo are

controlling precedent for GPS searches pre-Jones, and there is not any definitive

authority to the contrary. Cf. United States v. Maynard, 615 F.3d 544 (D.C. Cir.

2010) (holding only that prolonged use of a GPS device, for 28 days, violated the

fourth amendment, a question it considered specifically reserved by Knotts).

¶ 42 The first of several such cases to squarely address, after Jones and Davis, the

issue of whether Knotts and Karo can be considered binding precedent for GPS

searches conducted before Jones was the Second Circuit’s decision in United States

v. Aguiar, which we have already quoted above. It will suffice to note that Aguiar

unequivocally held that Knotts and Karo were binding precedent at the time police

installed the GPS device on January 23, 2009, and then used it for the next 11 days.

Aguiar, 737 F.3d at 261. Aguiar concluded that those cases were sufficient

precedent for police to reasonably conclude that a warrant was not necessary. Id. In

reaching this conclusion, the court noted that all of the circuits to consider

warrantless GPS installation pre-Jones had concluded the same, and that no

unsettling authority existed among the circuits until at least August 2010 when the

District of Columbia Circuit in Maynard, 615 F.3d at 565, found only that

prolonged use of GPS tracking for 28 days, 24 hours a day, violated the fourth

amendment. 3 Aguiar further noted its conclusion that the officers relied in good

faith on Knotts in placing the GPS device on the defendant’s vehicle was reinforced

3

This was the case taken up by the Supreme Court, now captioned United States v. Jones, 565

U.S. ___, 132 S. Ct. 945 (2012), which brought forth a “tectonic shift” in the legal landscape, to hold

that the installation and use of the GPS device was an illegal search because of the trespass to the

vehicle’s exterior. In Maynard, the defendant apparently thought any question as to a possible

trespass due to the attachment of the GPS was so well settled that he did not raise it. Moreover,

Maynard rested its holding on the prolonged surveillance (28 days duration), a question it

considered left open by Knotts. Maynard, 615 F.3d at 558.

- 14 -

by the fact that many of its sister circuits had reached similar results. Aguiar, 737

F.3d at 262. The court further noted that “[t]hese [out-of-circuit] cases are not

binding precedent and thus do not control our analysis ***, but do support the

conclusion that relying on Knotts was objectively reasonable.” Id. 4

¶ 43 The next United States Court of Appeals decision to address whether Knotts

and Karo are binding precedent for GPS searches pre-Jones was rendered by the

Fourth Circuit in United States v. Stephens, 764 F.3d 327 (4th Cir. 2014). In

Stephens, federal and state law enforcement officers in the Baltimore area were

investigating the defendant, a convicted felon, for possible drug and firearm

charges. On May 13, 2011, a Baltimore police officer, acting without a warrant,

placed a GPS device under the rear bumper of the defendant’s vehicle. Three days

later, Baltimore city police tracked defendant in the vehicle. When the defendant

arrived at his destination, the officers searched the vehicle and found a loaded

handgun. The defendant was charged with state law crimes and remained in state

custody for about three months, until a federal grand jury indicted the defendant on

a federal firearm charge. The State of Maryland dismissed the charges after the

federal indictment. Id. at 330. The cause then proceeded in federal court. Defendant

then filed a motion to suppress based on Jones, which was denied by the district

court. Id.

¶ 44 The Fourth Circuit in Stephens affirmed the denial of the suppression motion.

Id. at 339. In so doing, it began by rejecting the defendant’s narrow view of the

good-faith inquiry. Id. at 337. It noted that “Davis merely establishes the

inapplicability of the exclusionary rule in one specific circumstance. Davis does

not, however, alter the general good-faith inquiry which, we reiterate, requires

consideration of whether a reasonably well-trained officer would have known that a

search was illegal in light of all of the circumstances.” Id. The court then stated that

in May 2011, when the search was conducted, which was before Jones, neither the

Supreme Court nor the Fourth Circuit had expressly approved or disapproved of

warrantless GPS usage. Id. It then noted that Knotts was “not exactly on point.” Id.

But that it was “ ‘widely and reasonably understood to stand for the proposition that

4

Aguiar stated that in the aftermath of Jones, there was a split in the circuits, as United States v.

Katzin, 732 F.3d 187, 210 (3d Cir. 2013), “adopted a much stricter rule” declining to apply the

good-faith exception because Knotts and Karo were distinguishable based on the lack of physical

intrusion in those cases. Aguiar, 737 F.3d at 260. However, the Third Circuit granted rehearing

en banc in Katzin, vacated its previous decision, and instead held that Knotts and Karo were indeed

binding appellate precedent under Davis.

- 15 -

the Fourth Amendment simply was not implicated by electronic surveillance of

public automotive movements’ [citation], and it was the ‘foundational Supreme

Court precedent for GPS-related cases’ [citation].” Id. at 338. The court continued:

“After Jones, we know that such an interpretation of Knotts is incorrect. Without

the benefit of hindsight, however, and with no contrary guidance from the Supreme

Court or this Court, we believe that a reasonably well-trained officer in this Circuit

could have relied upon Knotts as permitting the type of warrantless GPS usage in

this case.” Id.

¶ 45 The Stephens court found its conclusion to be undergirded by Maryland state

law precedent (see Kelly, 82 A.3d at 216) holding that Knotts was binding appellate

court precedent in Maryland under Davis, and therefore, “Maryland police officers

could ‘reasonably rely on Knotts, pre-Jones, in affixing a GPS tracking device to

the vehicle of a person under their investigation for the purpose of conducting

surveillance.’ ” Stephens, 764 F.3d at 338. The court noted that the fact that

defendant was later charged federally did not alter its determination. Id. The court

then rejected the defendant’s argument that Maryland state law was irrelevant

because the investigation was federal. Id. at 338 n.13. The court further noted that it

was a joint state and federal investigation (id.). Moreover, the court observed that

“ ‘in the initial stages of a criminal investigation, it may be anything but clear

whether the conduct being investigated violates state law, federal law, or both,’

[citation] and ‘the decision with respect to the court in which charges are to be

brought is often made by the Office of the United States Attorney and the state

prosecutor, not the investigating officer,’ [citation].” Id.

¶ 46 The most recent federal court of appeals case to hold that Knotts and Karo are

“binding appellate precedent” under Davis is United States v. Katzin, 769 F.3d 163

(3d Cir. 2014) (decided en banc on rehearing), where the court conducted an

excellent and exhaustive analysis of the issues. In Katzin, local police officers and

the FBI were investigating a series of burglaries of pharmacies in the greater

Philadelphia area. Id. at 167. On December 13, 2010, officers attached a GPS

device to the undercarriage of defendant’s van while it was parked on a public

street. Two days later the van was tracked to a certain pharmacy that was

burglarized at the time defendant’s van was there. The defendant was eventually

pulled over by state police and defendant was found with items consistent with the

burglary of the pharmacy. Id. at 168

- 16 -

¶ 47 For the same reasons noted above, Katzin found Knotts and Karo to be binding

precedent under Davis and law enforcement’s reliance upon it to be objectively

reasonable. Additionally, Katzin rejected a narrow reading of Davis by noting the

following:

“[I]f binding appellate precedent specifically authorizes the precise conduct

under consideration, then it will likely be binding appellate precedent ***

under Davis. However, this does not make the reverse syllogism true, namely,

that if a case is binding appellate precedent under Davis, then it must

specifically authorize the precise conduct under consideration. Davis’ holding

is broader: ‘[e]vidence obtained during a search conducted in reasonable

reliance on binding precedent is not subject to the exclusionary rule.’ [Citation.]

While reliance is likely reasonable when the precise conduct under

consideration has been affirmatively authorized by binding appellate precedent,

it may be no less reasonable when the conduct under consideration clearly falls

well within rationale espoused in binding appellate precedent, which authorizes

nearly identical conduct.

Accordingly, what is far more important to our conclusion is that, despite

these few dissimilarities [i.e., clandestinely installing a GPS to the exterior of

the van rather than clandestinely tricking him into unwittingly taking the beeper

device into his vehicle], the agents’ nearly identical conduct fits squarely within

the rationale of these decisions.” Id. at 176.

¶ 48 Katzin then found in the alternative that even if the factual dissimilarities

somehow disqualified Knotts and Karo from being binding precedent, which could

be reasonably relied upon under Davis, the inquiry would not end there. Katzin

noted that Davis was “but one application of the good faith exception,” although

undoubtedly the most analogous one. Id. at 177. Katzin further noted that “[e]ven

where Davis does not control, it is our duty to consider the totality of the

circumstances to answer the objectively ascertainable question whether a

reasonably well trained officer would have known that the search was illegal.”

(Internal quotation marks omitted.) Id. It further explained that:

“Davis did not begin, nor end, with binding appellate precedent. Rather,

binding appellate precedent informed—and ultimately determined—the

Supreme Court’s greater inquiry: whether the officers’ conduct was deliberate

and culpable enough that application of the exclusionary rule would ‘yield

- 17 -

meaningful[l] deterrence,’ and ‘be worth the price paid by the justice system.’

[Citation.] We must conduct the same analysis on the facts before us, even in

the absence of binding appellate precedent.” Id. at 178.

¶ 49 Katzin then reviewed the legal landscape as it existed at the time law

enforcement installed the GPS device in December 2010, which included Knotts

and Karo and several out-of-circuit decisions specifically upholding warrantless

GPS installation and tracking. The court found that “[g]iven the panoply of

authority authorizing their actions, we cannot conclude that a ‘reasonably well

trained officer would have known that the search was illegal,’ [citation] nor that the

agents acted with a ‘deliberate, reckless, or grossly negligent disregard for

[Appellees’] Fourth Amendment rights,’ [citation].” Id. at 184.

¶ 50 VI. Objectively Reasonable Good-Faith Belief

¶ 51 This brings us to our second reason for holding that the exclusionary rule is

inapplicable under the circumstances. We find in the alternative, as the court did in

Katzin, that, pursuant to the Supreme Court’s general good-faith analysis, the

detective’s conduct, in relying on the legal landscape that existed at the time the

search was conducted, was objectively reasonable, and he had no reason to suspect

that his conduct was wrongful under the circumstances. Therefore, the exclusionary

rule cannot be invoked here. It simply cannot be applied to a situation where it

offers little or no deterrent benefit and where there is not the least bit of culpability

that can be charged to the officer’s conduct in conducting a warrantless GPS search

in 2009.

¶ 52 As noted, “when the police act with an objectively reasonable good-faith belief

that their conduct is lawful ***, the deterrence rationale loses much of its force, and

exclusion cannot pay its way.” (Internal quotation marks omitted.) Davis, 564 U.S.

at ___, 131 S. Ct. at 2427-28 (quoting Leon, 468 U.S. at 907 n.6). We have already

discussed the rationale of Knotts and Karo and how they were widely and

reasonably understood to stand for the proposition that the fourth amendment was

simply not implicated by electronic surveillance of automotive movements.

Moreover, Karo’s “brushing off” and “discount[ing]” of the trespass theory

meshed logically with earlier Supreme Court decisions concluding that the physical

characteristics of an automobile and its use result in a lessened expectation of

privacy. Additionally, it must be conceded that there would have been no merit to

- 18 -

any argument raised prior to Jones that a physical trespass to the private property of

a vehicle’s exterior would have constituted a search. See supra ¶ 37 n.1. When all

of this is combined with the fact that there was no contrary federal circuit court or

Illinois precedent in existence—but rather all of the federal court of appeals

authority was in agreement, including the Seventh Circuit, one of the jurisdictions

in which the police officers in this case operated, specifically having concluded that

warrantless installation and use of a GPS device did not violate the fourth

amendment (Garcia, 474 F.3d at 996-98; McIver, 186 F.3d at 1126-27)—then the

circumstances are overwhelmingly in favor of concluding that suppression is not

warranted here.

¶ 53 Given the state of the law with which police officers were faced in 2009, there

is no merit to defendant’s intimation that the police in this case were risking that

their conduct would be held unconstitutional. To characterize the officer’s conduct

in such a manner is simply not a fair assessment in view of the legal landscape.

¶ 54 There is also no merit to the notion that the good-faith exception may never be

applied in a state prosecution where local police reasonably rely upon the legal

landscape in existence but there are no state law cases addressing the issue.

“Nothing in Davis itself supports such an interpretation.” Stephens, 764 F.3d at

337; see also Brown, 744 F.3d at 478 (questioning whether there is any deterrence

to be gained by telling police they may not “rely on decisions issued by several

circuits, just because the circuit covering the state in which an investigation is

ongoing lacks its own precedent”). And none of the Supreme Court precedent cited

by the parties supports the idea that police may not rely upon the “ ‘constitutional

norm’ ” that has been established by the legal landscape. See Katzin, 769 F.3d at

184 (quoting United States v. Peltier, 422 U.S. 531, 542 (1975) (where the Court

considered the “constitutional norm” established by the court of appeals when

determining whether an officer “had knowledge, or [could] properly be charged

with knowledge, that the search was unconstitutional under the Fourth

Amendment”)).

¶ 55 VII. Garcia Was Binding Appellate Precedent Under Davis

¶ 56 The third major point supporting our holding is that for purposes of Davis’s

good-faith inquiry, the Seventh Circuit Court of Appeals decision in United States

v. Garcia, 474 F.3d 994 (7th Cir. 2007), was “binding appellate precedent” for

- 19 -

Illinois police officers that they could have reasonably relied upon in 2009. In

Garcia, the defendant was a convicted felon who had served time for

methamphetamine offenses. Id. at 995. Shortly after his release from prison, police

received a tip from an informant that the defendant was selling meth and wanted to

start manufacturing it again. The police located defendant’s vehicle and secretly

placed a GPS device underneath the rear bumper. Evidence was subsequently

gathered as a result of the GPS tracking that showed that defendant had resumed the

manufacture of the illegal drug. Id. at 995-96. Garcia specifically rejected the

contention that the warrantless installation of the GPS device violated the fourth

amendment. Id. at 996-98. The court held that “[t]he defendant’s contention that by

attaching the *** tracking device the police seized his car is untenable.” Id. at 996.

And there is no search in the attachment either. Id. at 996-97. In so holding, Garcia

stated the following:

“But if police follow a car around, or observe its route by means of cameras

mounted on lampposts or of satellite imaging as in Google Earth, there is no

search. Well, but the tracking in this case was by satellite. Instead of

transmitting images, the satellite transmitted geophysical coordinates. The only

difference is that in the imaging case nothing touches the vehicle, while in the

case at hand the tracking device does. But it is a distinction without any

practical difference.” (Emphasis in original.) Id. at 997.

Thus, Garcia specifically authorized the police practice of attaching a GPS device

to a vehicle without a warrant in the Seventh Circuit, which geographically

includes Illinois.

¶ 57 Illinois law enforcement’s reliance upon Garcia fits squarely within the

specific holding of Davis, because it was “binding appellate precedent” in the

absence of any contrary Illinois state authority as far as the Aurora police detective

was concerned, who stood in exactly the same shoes as the Alabama police officer

in Davis that relied upon binding Eleventh Circuit Court of Appeals precedent

when he conducted a search in the course of investigating a state law traffic offense.

Accordingly, suppression of the evidence is not warranted.

¶ 58 In Davis, local police officers in Greenville, Alabama, conducted a routine

traffic stop that resulted in the arrest of the defendant, the driver of the vehicle, for a

state DUI offense. Davis, 564 U.S. at ___, 131 S. Ct. at 2425. The defendant was

handcuffed by police and placed in the back of the squad car. Id. at ___, 131 S. Ct.

- 20 -

at 2425. Police then searched the passenger compartment of the vehicle and found a

gun in the defendant’s jacket. Id. at ___, 131 S. Ct. at 2425. Defendant was

ultimately prosecuted in federal court on a firearm charge. Id. at ___, 131 S. Ct. at

2425-26.

¶ 59 Even after a defendant has stepped out of the vehicle and has been subdued by

police, the prevailing understanding among courts was that New York v. Belton, 453

U.S. 454 (1981), had set down a bright-line rule, authorizing searches incident to

arrest regardless of the location of the arrestee at the time of the search. Davis, 564

U.S. at ___, 131 S. Ct. at 2424. The federal district court in Davis denied the motion

to suppress based on Belton. However, while the case was pending on appeal, the

Supreme Court decided Arizona v. Gant, 556 U.S. 332 (2009), which upset the

prevailing interpretation of Belton. Before Gant, the Eleventh Circuit had been one

of many federal appeals courts to read Belton permissively so as to allow searches

of the vehicle even after the suspects were handcuffed and placed under arrest. See

United States v. Gonzalez, 71 F.3d 819, 822 (11th Cir. 1996) (allowing search

pursuant to Belton where the suspect was already arrested and handcuffed). When

the Davis case reached the Supreme Court, it consequently became necessary to

resolve the question of “whether to apply the exclusionary rule when the police ***

[rely upon] binding judicial precedent.” Davis, 564 U.S. at ___, 131 S. Ct. at 2428.

¶ 60 As noted, the Supreme Court found the Eleventh Circuit precedent in Gonzalez

to be “binding appellate precedent” for the local Alabama police officers who were

conducting a routine traffic stop and investigating a purely state traffic offense

when they decided to conduct a search in objectively reasonable reliance upon

Gonzalez. 5 Davis, 564 U.S. at ___, 131 S. Ct. at 2428. As we have emphasized

throughout this opinion, absolutely crucial to the decision in Davis was the lack of

police culpability. It is hard to fathom, then, how the Aurora police officer in the

present case—who could have reasonably relied upon Garcia as a case directly on

point, which was followed to “the letter”—could be considered to be in any

different position than the Alabama officers in Davis, who relied upon Gonzalez,

which was followed to the letter. There appears to be no principled basis on which

to distinguish Davis from the present case, and defendant has not offered one.

5

At the time the Alabama police officers conducted their search of the vehicle in Davis, the

Alabama Supreme Court had not specifically addressed the location of the arrestee at the time of

arrest. See Gundrum v. State, 563 So. 2d 27, 28 (Ala. Crim. App. 1990) (noting that its state supreme

court had not addressed the issue).

- 21 -

¶ 61 The only reason defendant offers for not applying the good-faith exception

based on reliance upon Garcia is that in the present case, “[t]here is no indication in

the record that police were doing anything other than investigating a state offense,

and [defendant] was ultimately charged in state court.” But that is the exact same

situation as Davis, where state police officers were investigating a state crime they

had no reason to believe would be prosecuted in federal court. As Davis itself

shows, in the initial stages of a criminal investigation, it is not clear whether the

conduct being investigated will end up supporting a violation of state law, federal

law, or both. Moreover, the decision as to which court to bring the charges, federal

or state, is almost certainly never made by the investigating officer. See Stephens,

764 F.3d at 338 n.13. Surely, the decision in Davis cannot be read to rest on the

fortuitous and conceptually irrelevant distinction that—after the search was already

undertaken and without knowing what it would produce—Davis’s weapon charge

could be prosecuted in federal court whereas the robbery charge here could not. We

decline the invitation to presume that the Supreme Court intended such an absurd

result.

¶ 62 As a final matter, we address the dissent’s claim that we have made a “deeply

troubling departure” from the holding in People v. Krueger, 175 Ill. 2d 60 (1996),

and People v. Madison, 121 Ill. 2d 195 (1988), by recognizing the good-faith

exception of Davis. The dissent is clearly mistaken in its belief that Krueger and

Madison are at odds with the outcome in the present case.

¶ 63 In Krueger, this court first addressed the constitutionality of an Illinois statute

that allowed police to enter a home without first knocking and announcing their

office where a warrant had been issued pursuant to the no-knock provision

contained in the statute. Specifically, the statute allowed a no-knock entry if the

occupant of the building had possessed a firearm “within a reasonable time period.”

People v. Krueger, 175 Ill. 2d at 64; 725 ILCS 5/108-8(b)(2) (West 1994). This

court began by noting that the search and seizure clauses of both the federal and

state constitutions should be measured using the same standard. Krueger, 175 Ill.

2d at 65 (which held that any variance between the Supreme Court’s construction

of the fourth amendment and similar provisions in the Illinois Constitution must be

based on language in our state constitution, or the debates or committee reports of

the constitutional convention, that indicate that the provisions of our state

constitution are intended to be construed differently than the provisions of the

federal constitution after which they are patterned) (citing People v. Tisler, 103 Ill.

2d 226, 235-36 (1984)). Relying upon Wilson v. Arkansas, 514 U.S. 927 (1995),

- 22 -

and People v. Condon, 148 Ill. 2d 96, 101 (1992), Krueger found that although a

no-knock entry can be constitutionally permitted if exigent circumstances are

present, simple possession of firearms by the occupant without more does not

qualify. Krueger rejected the argument that it would decrease the danger to officers

to dispense with the usual requirements of knocking and announcing. Krueger, 175

Ill. 2d at 67-68. This court noted that in a situation where the occupant is not known

to be violent, it might actually increase the risk of harm to the officers when the

occupant is threatened by a completely unexpected and unannounced entry. Id. at

68-69.

¶ 64 After finding that the statutory provision in question was unconstitutional,

Krueger then turned to the question of whether the evidence seized from the

defendant’s home pursuant to the unconstitutional statute should be excluded from

trial. The State urged this court to adopt Illinois v. Krull, 480 U.S. 340 (1987),

where the Supreme Court applied the good-faith exception to the exclusionary rule

in the specific instance of a police officer having relied, in good faith, on a statute

that authorized a warrantless administrative search, but the statute was later

declared unconstitutional. Krueger, 175 Ill. 2d at 70-71. Krueger recognized that

Krull was controlling as a matter of federal constitutional law, but Krueger

nevertheless held that “the exclusionary rule arising out of our state constitution

(Ill. Const. 1970, art. I, § 6) continues to afford the protection abrogated by Krull.”

Id. at 73-74.

¶ 65 In departing from the lockstep doctrine of following Supreme Court decisions

in fourth amendment cases, Krueger referred to this state’s particular history with

respect to the exclusionary rule’s application to evidence obtained under an

unconstitutional statute:

“[Our] exclusionary rule has always been understood to bar evidence gathered

under the authority of an unconstitutional statute (see Brocamp, 307 Ill. 448,

(adopting the reasoning in Weeks for purposes of our state exclusionary rule);

Weeks, 232 U.S. at 394, 58 L. Ed. at 656, 34 S. Ct. at 345 (making it clear that

the federal exclusionary rule was intended to apply to evidence gathered by

officers acting under ‘legislative *** sanction’)), so long as that statute

purported to authorize an unconstitutional search or seizure (see Michigan v.

DeFillippo, 443 U.S. 31, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979) (recognizing a

substantive-procedural distinction not at issue here; specifically holding that

the fourth amendment exclusionary rule did not apply where an ordinance was

- 23 -

held unconstitutional on vagueness grounds)). Consequently, to adopt Krull’s

extended good-faith exception would drastically change this state’s

constitutional law.” Id. at 74-75.

¶ 66 From the foregoing, it is crystal clear that Krueger held only that the good-faith

exception as expressed in Krull—which dealt only with an officer’s reliance upon a

statute later declared unconstitutional—would not be recognized in Illinois for

purposes of our state constitution. Krueger therefore has no application to the

present case where an officer could have reasonably relied in objective good faith

on binding appellate judicial decisions and the constitutional norm that had been

established thereby. This is further borne out by Krueger’s heavy reliance upon

Justice O’Connor’s dissenting opinion in Krull arguing that “ ‘the core concern’ ”

of the framers of the fourth amendment was the enactment of unconstitutional

statutes by the legislative branch. Id. at 72 (quoting Krull, 480 U.S. at 362-63

(O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). Krueger

further noted that Justice O’Connor found this history illustrative of the fact that the

relevant state actors in Krull—legislators—often pose a serious threat to fourth

amendment values and that this presented a clear distinction from the situation in

United States v. Leon, 468 U.S. 897 (1984), where a judicial officer issues a warrant

that is not supported by probable cause. Krueger, 175 Ill. 2d at 72. We find that the

same threat to fourth amendment values that was of concern in Krueger is not

present when police reasonably rely in objective good faith on judicial precedent.

Nor is there any concern here of a “grace period” giving effect to the operation of

an unconstitutional legislative act.

¶ 67 Finally, Krueger expressly reaffirmed that this court would continue to accept

both the good-faith exception as expressed in Leon and the rationale used to support

it. Notably, Krueger did not imply that it would refuse to follow any further

expansion or a different articulation of the good-faith exception made by the

Supreme Court in future cases.

¶ 68 Given the actual rationale and holding of Krueger, it is no surprise that

defendant did not argue before this court that it controlled the outcome here. The

dissent’s treatment of it obviously misses the mark.

¶ 69 The same can be said for the dissent’s unsolicited reliance upon Madison. In

that case, the plain language of the statute required police to obtain a warrant before

searching and seizing evidence discovered during an administrative inspection.

- 24 -

Madison, 121 Ill. 2d at 201. The Madison court noted that the problem with the

State’s argument for application of the good-faith exception was that “[t]he officers

were acting in defiance of, not reliance on,” the plain words of the statute when they

conducted their warrantless search and seizure. Id. at 208. Such conduct cannot be

considered objectively reasonable, and therefore the dissent’s use of Madison to

support its position is puzzling. Madison would be instructive if, in the present

case, police had defied the plain language of an existing statute or judicial ruling

and substituted their own erroneous interpretation. But that of course is not the case

here. In trying to fit a square peg into a round hole, the dissent seems to purposely

ignore that the good-faith exception has an objective reasonableness component.

See Davis, 564 U.S. at___, 131 S. Ct. at 2423-24 (“searches conducted in

objectively reasonable reliance on binding appellate precedent are not subject to the

exclusionary rule”); see also Katzin, 769 F.3d at 176 (reliance is reasonable “when

the conduct under consideration clearly falls within rationale espoused in binding

appellate precedent, which authorizes nearly identical conduct”).

¶ 70 CONCLUSION

¶ 71 We hold that the good-faith exception applies and that the evidence obtained

against defendant should not be excluded. We find Knotts, Karo and Garcia to be

“binding appellate precedent” within the meaning of Davis and that Aurora police

could have reasonably relied upon such precedent in placing and using the GPS

device in 2009. In the alternative, we further find that it would have been

objectively reasonable for police to rely upon the legal landscape and the

constitutional norm that had been established at the time of the search that allowed

warrantless attachment and use of GPS technology. In so doing, we conclude that

there was a complete lack of police culpability in this case and that there would be

little or no deterrent value to suppressing the evidence. At the same time, the cost to

society of letting a clearly guilty repeat offender go free is too great and the

exclusionary rule cannot pay its way in this case. Finally, we caution that after

Jones law enforcement should beware of its holding and how it relates to GPS

attachment and monitoring.

¶ 72 For the foregoing reasons, we affirm the appellate court’s remand for a new

trial because of the Rule 401(a) violation. However, we reverse the portion of the

appellate court’s judgment that vacated the trial court’s order denying defendant’s

- 25 -

motion to quash arrest and suppress evidence. We also reverse the portion of the

appellate court’s judgment that remanded the cause for further proceedings on

defendant’s motion.

¶ 73 Appellate court affirmed in part and reversed in part.

¶ 74 Circuit court affirmed in part and reversed in part.

¶ 75 Cause remanded.

¶ 76 JUSTICE BURKE, dissenting:

¶ 77 In a deeply troubling departure from this court’s constitutional precedent, the

majority now recognizes for purposes of our state exclusionary rule the

“good-faith” exception to the federal exclusionary rule set forth by the United

States Supreme Court in Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419

(2011). Under Davis, when, in good faith, the police conduct an unconstitutional

search based on their objectively reasonable reliance on “binding appellate

precedent” which is later overruled, evidence resulting from the search is not

subject to the federal exclusionary rule. Id. at ___, 131 S. Ct. at 2423-24. Applying

Davis to the facts before this court, the majority holds that the good-faith exception

applies because binding appellate precedent at the time of the search authorized the

warrantless installation of a GPS device on the vehicle driven by defendant.

Alternatively, the majority holds that the evidence obtained from the GPS device is

not subject to suppression because the police reasonably relied upon persuasive,

nonbinding precedent from other jurisdictions. In applying the good-faith

exception, the majority unfortunately chooses not to resolve the issue at the heart of

this case—the constitutionality of warrantless GPS tracking of a suspect by the

police.

¶ 78 I disagree with the decision reached by the majority in several respects. First,

the majority’s extension of the good-faith exception in Davis to our state

exclusionary rule is directly at odds with People v. Krueger, 175 Ill. 2d 60 (1996),

where we refused to recognize a good-faith exception for searches conducted in

objectively reasonable reliance on a statute which is later held to be

unconstitutional. In Krueger, we held that the good-faith exception was

- 26 -

incompatible with the exclusionary rule arising out of our state constitution. We

interpreted our exclusionary rule as providing greater protection of a citizen’s right

to be free from unconstitutional searches and seizures than the federal exclusionary

rule. Id. at 73-76. For reasons similar to those set forth in Krueger, I would decline

the State’s request to recognize the Davis good-faith exception for searches

conducted in reasonable reliance on binding appellate precedent.

¶ 79 The majority’s alternative holding, based on a broad reading of dicta in Davis,

amply demonstrates why this court should reject Davis as contrary to the Illinois

exclusionary rule. The majority goes well beyond the holding in Davis and finds

that the good-faith exception applies to searches conducted in the absence of any

binding precedent where the police reasonably rely on the prevailing “legal

landscape.” The majority also invites the lower courts to conduct a general

“good-faith inquiry” which is not limited to the specific circumstances in Davis or

any other Supreme Court case. By reading into Davis a much broader good-faith

exception than the one delineated in the Court’s holding, the majority affords less

protection to the rights of Illinois citizens to be free from unconstitutional searches

and seizures than intended by the Supreme Court. The result will be the erosion,

and possible destruction, of the exclusionary rule in this state.

¶ 80 Lastly, I disagree with the majority that, at the time the police officers installed

the GPS device and used it to monitor the vehicle’s movements, there was any

relevant, binding authority which could have authorized their conduct. The case

law cited by the majority is either inapposite or was not binding on Illinois state

courts. For these reasons, I respectfully dissent.

¶ 81 BACKGROUND

¶ 82 In 2009, the Aurora police covertly installed a GPS device on a vehicle

defendant was known to drive for the purpose of tracking defendant’s movements

in the vehicle. The police did not obtain a warrant prior to installing the GPS

device. Location data from the GPS device was used to connect defendant to a gas

station robbery which took place approximately 24 hours after the device was

installed. Defendant was subsequently arrested and charged with aggravated

robbery, robbery, and burglary. His motion to quash arrest and suppress the

evidence gleaned from the GPS tracker was denied, and he was convicted of all

charges.

- 27 -

¶ 83 While defendant’s appeal was pending in the appellate court, the United States

Supreme Court decided United States v. Jones, 565 U.S. ___, 132 S. Ct. 945

(2012). The Jones Court held that the government’s installation of a GPS device on

a suspect’s vehicle, and its use of the device to monitor the vehicle’s movements,

constitutes a search under the fourth amendment (U.S. Const., amend. IV). Jones,

565 U.S. at ___, 132 S. Ct. at 949. Taking Jones into consideration, the appellate

court below held that a fourth amendment search took place when the police

attached the GPS device to the vehicle and used it to track defendant’s movements.

2013 IL App (2d) 100659, ¶ 13. Accordingly, the appellate court vacated the trial

court’s order denying defendant’s motion to quash arrest and suppress evidence.

The court then remanded the matter for a new suppression hearing to determine

whether defendant had a sufficient possessory interest in the vehicle to raise a

constitutional claim under Jones. Id. ¶ 29. 6

¶ 84 Addressing the State’s appeal of that judgment, the majority now declines to

consider whether defendant had a sufficient possessory interest in the vehicle to

challenge the search under Jones, or even whether an unconstitutional search took

place in the first instance. Supra ¶ 18. Instead, the majority finds that the good-faith

exception in Davis applies because the police installed the GPS device in

objectively reasonable reliance on the “legal landscape” in existence at that time,

or, alternatively, on binding appellate precedent authorizing the installation. Supra

¶ 31. The majority thus finds that defendant is not entitled to a new suppression

hearing because, even if an unconstitutional search took place, any evidence

resulting from the search would be admitted upon retrial.

¶ 85 ANALYSIS

¶ 86 I. The Davis Good-Faith Exception Is Incompatible With Our State

Exclusionary Rule

¶ 87 The United States Supreme Court first recognized a limited “good-faith”

exception to the federal exclusionary rule in United States v. Leon, 468 U.S. 897

(1984). In Leon, the Supreme Court held that the fourth amendment exclusionary

rule does not bar evidence obtained by a police officer who reasonably relies, in

6

The appellate court also reversed defendant’s convictions and remanded the matter for a new

trial based on improper Illinois Supreme Court Rule 401(a) admonishments. The majority affirms

this part of the appellate court’s judgment.

- 28 -

objective good faith, on a search warrant issued by a neutral and detached

magistrate, but which is later found to be unsupported by probable cause. Id. at

919-22. The Court reasoned that application of the exclusionary rule in this

situation would not serve the primary purpose of the rule, which is to deter future

police misconduct. Id. at 918-21. This court recognized the Leon good-faith

exception for purposes of the state exclusionary rule in People v. Stewart, 104 Ill.

2d 463, 477 (1984); see also People v. Turnage, 162 Ill. 2d 299 (1994) (applying

Leon).

¶ 88 The Supreme Court extended Leon to a warrantless search for the first time in

Illinois v. Krull, 480 U.S. 340 (1987). Krull held that the federal exclusionary rule

does not bar evidence seized by a police officer who reasonably relies, in objective

good faith, on a statute authorizing a warrantless administrative search, where the

statute is later held to be unconstitutional. Id. at 349-50. In People v. Krueger, 175

Ill. 2d 60 (1996), however, this court declined to recognize Krull’s expansion of the

Leon good-faith exception as a matter of state constitutional law.

¶ 89 In Krueger, police officers executed a search warrant issued pursuant to a

“no-knock” statute (725 ILCS 5/108-8(b) (West 1994)), which this court held was

unconstitutional under both the fourth amendment and article I, section 6, of the

Illinois Constitution of 1970. Krueger, 175 Ill. 2d at 69-70. The State argued that

we should reverse the circuit court’s suppression order pursuant to the Krull

good-faith exception. We rejected the State’s argument, holding that the

exclusionary rule arising from article I, section 6, provides greater protection from

unconstitutional searches and seizures than the federal exclusionary rule. Id. at

73-74. We observed that this court has the authority to interpret state constitutional

provisions more broadly than the Supreme Court interprets similar provisions of

the federal constitution. Id. at 74 (citing People v. Perry, 147 Ill. 2d 430, 436

(1992)). We also noted that the exclusionary rule is a judicially created remedy

with a long history in Illinois, traced back to People v. Brocamp, 307 Ill. 448

(1923). In Brocamp, this court adopted an independent state exclusionary rule

almost 40 years before Mapp v. Ohio, 367 U.S. 643 (1961), made the federal

exclusionary rule applicable to the states. Krueger, 175 Ill. 2d at 74-75. See also

Illinois v. Gates, 462 U.S. 213, 221-22 (1983); id. at 251 (White, J., concurring) (a

state court may rest a decision to modify its state exclusionary rule on adequate and

independent state grounds).

- 29 -

¶ 90 In rejecting Krull as a matter of state law, we balanced the legitimate aims of

law enforcement against the right of our citizens to be free from unreasonable

governmental intrusion. We found that the citizens’ rights prevailed, holding:

“[w]e are not willing to recognize an exception to our state exclusionary rule

that will provide a grace period for unconstitutional search and seizure

legislation, during which time our citizens’ prized constitutional rights can be

violated with impunity. We are particularly disturbed by the fact that such a

grace period could last for several years and affect large numbers of people.

This is simply too high a price for our citizens to pay. We therefore conclude

that article I, section 6, of the Illinois Constitution of 1970 prohibits the

application of Krull’s extended good-faith exception to our state exclusionary

rule.” Krueger, 175 Ill. 2d at 75-76.

¶ 91 Our decision in Krueger relied on the reasoning set forth in Justice O’Connor’s

dissent in Krull. See id. at 72-73. Justice O’Connor criticized the Krull majority’s

extension of the Leon good-faith exception, arguing that this newly created

exception was not supported by the rationale in Leon. Id. at 72 (citing Krull, 480

U.S. at 361 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens,

JJ.)). First, she observed that, in contrast to a search authorized by a facially valid

warrant later found to be defective, there was a “ ‘powerful historical basis for the

exclusion of evidence gathered pursuant to a search authorized by an

unconstitutional statute.’ ” Id. (quoting Krull, 480 U.S. at 362 (O’Connor, J.,

dissenting, joined by Brennan, Marshall and Stevens, JJ.)). Second, Justice

O’Connor argued that legislators were much more likely to pose a threat to fourth

amendment protections than a neutral magistrate issuing a search warrant in a

specific case. She noted:

“ ‘Judicial authorization of a particular search does not threaten the liberty of

everyone, but rather authorizes a single search under particular circumstances.

The legislative act, on the other hand, sweeps broadly, authorizing whole

classes of searches, without any particularized showing. A judicial officer’s

unreasonable authorization of a search affects one person at a time; a

legislature’s unreasonable authorization of searches may affect thousands or

millions and will almost always affect more than one. Certainly the latter poses

a greater threat to liberty.’ ” Id. at 72-73 (quoting Krull, 480 U.S. at 365

(O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)).

- 30 -

¶ 92 Moreover, Justice O’Connor observed that the majority’s decision was at odds

with the retroactivity principles in Griffith v. Kentucky, 479 U.S. 314 (1987), which

held that “ ‘basic norms of constitutional adjudication’ and fairness to similarly

situated defendants” required that opinions announcing new constitutional rules in

criminal cases apply to all cases pending on direct review at the time the new rule is

declared. Krull, 480 U.S. at 368 (O’Connor, J., dissenting, joined by Brennan,

Marshall and Stevens, JJ.) (quoting Griffith, 479 U.S. at 322). Justice O’Connor

pointed out that, under the novel approach taken by the Krull majority, “ ‘no

effective remedy is to be provided in the very case in which the statute at issue was

held unconstitutional.’ ” Krueger, 175 Ill. 2d at 73 (citing Krull, 480 U.S. at 368

(O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)). As

Justice O’Connor noted, “the lack of a remedy leaves no incentive for the aggrieved

defendant to challenge the statute as unconstitutional.” Id. (citing Krull, 480 U.S. at

369 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.)).

¶ 93 The same flaws identified by this court in Krueger with respect to the Krull

good-faith exception are inherent in the good-faith exception for police searches

“conducted in objectively reasonable reliance on binding appellate precedent”

(Davis, 564 U.S. at ___, 131 S. Ct. at 2423-24), applied by the majority in the case

at bar. Under both good-faith exceptions, the police are said to have reasonably

relied on existing authority (an authorizing statute in Krull; binding appellate

authority in Davis), which is later found to be unconstitutional or overruled by

subsequent case law. In both situations, there is a “grace period,” which could last

several years, during which the State is free to perform unconstitutional searches

and seizures with impunity. See Krueger, 175 Ill. 2d at 75; Krull, 480 U.S. at 361

(O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.). Just as in

Krull, the Davis good-faith exception has the potential to affect thousands of people

by authorizing a whole class of searches, in contrast to a single search authorized by

a defective search warrant. See Krueger, 175 Ill. 2d at 72-73; Krull, 480 U.S. at 365

(O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens, JJ.).

Moreover, under both Krull and Davis, the lack of a remedy leaves no incentive for

a defendant to challenge a statute as unconstitutional or to seek to overturn case law

authorizing an unconstitutional search. See Krueger, 175 Ill. 2d at 73; Krull, 480

U.S. at 368 (O’Connor, J., dissenting, joined by Brennan, Marshall and Stevens,

JJ.); see also Davis, 564 U.S. at ___, 131 S. Ct. at 2438 (Breyer, J., dissenting,

joined by Ginsburg, J.) (criticizing the Davis majority for adopting a good-faith

exception at odds with retroactivity principles and arguing that a defendant has

- 31 -

little incentive to challenge court precedent). Finally, unlike Leon, which “simply

instructs courts that police officers may rely upon a facially valid search warrant,”

the good-faith exceptions in Krull and Davis are difficult for courts to administer

because it is “not apparent how much constitutional law the reasonable officer is

expected to know.” Krull, 480 U.S. at 366-67 (O’Connor, J., dissenting, joined by

Brennan, Marshall and Stevens, JJ.); see also Davis, 564 U.S. at ___, 131 S. Ct. at

2437 (Breyer, J., dissenting, joined by Ginsburg, J.) (application of the Davis

good-faith exception will result in “complex legal argument and police force

confusion”).

¶ 94 This court noted in Krueger that Krull had been severely criticized by fourth

amendment scholars. See Krueger, 175 Ill. 2d at 76 (citing 1 Wayne R. LaFave,

Search and Seizure § 1.3(h), at 96-99 (3d ed. 1996)). Davis also has received sharp

criticism from legal scholars for its potential to erode, or even nullify, the federal

exclusionary rule. See 1 Wayne R. LaFave, Search and Seizure § 1.3(h), at 132-46

(5th ed. 2012); George M. Dery III, “This Bitter Pill”: The Supreme Court’s

Distaste for the Exclusionary Rule in Davis v. United States Makes Evidence

Suppression Impossible to Swallow, 23 Geo. Mason U. Civ. Rts. L.J. 1, 19-23

(2012); James J. Tomkovicz, Davis v. United States: The Exclusion Revolution

Continues, 9 Ohio St. J. Crim. L. 381, 400-02 (2011); David A. Moran, Hanging

On By a Thread: The Exclusionary Rule (or What’s Left of It) Lives for Another

Day, 9 Ohio St. J. Crim. L. 363, 375-80 (2011). Several state courts already have

rejected Davis on state law grounds. See, e.g., Brown v. State, 767 S.E.2d 299,

302-03 (Ga. Ct. App. 2014); State v. Anderson, 445 S.W.3d 895, 912 (Tex. App.

2014); State v. Koivu, 272 P.3d 483, 518-19 (Idaho 2012).

¶ 95 The majority’s recognition of the Davis good-faith exception in this case is

totally at odds with Krueger, where this court held that our state exclusionary rule

provides greater protection of our citizens’ constitutional rights than the federal

exclusionary rule. I cannot see a way to reconcile today’s decision with Krueger. I

would find that Krueger precludes this court from adopting the Davis good-faith

exception for purposes of our state exclusionary rule, and thus, that defendant is

entitled to a new suppression hearing.

- 32 -

¶ 96 II. The Majority’s “Good-Faith Inquiry” and “Legal Landscape” Theories Are

Not Supported by the Narrow Holding in Davis

¶ 97 Even if I agreed that the Davis good-faith exception should be extended to the

exclusionary rule arising out of article I, section 6, of the Illinois Constitution, I

could not sign on to the majority’s alternative holding in this case. The majority

finds that the good-faith exception in Davis is not limited to “objectively

reasonable reliance on binding appellate precedent.” See Davis, 564 U.S. at ___,

131 S. Ct. at 2423-24. According to the majority, in the absence of any binding

precedent authorizing the actions of the police:

“[i]t would still be necessary to conduct the ‘good-faith inquiry’ and consider

‘whether a reasonably well trained officer would have known that the search

was illegal in light of all of the circumstances.’ [Citation.] Clearly, application

of the good-faith inquiry is not limited to the specific circumstances addressed

by the Supreme Court in Davis or in any other Supreme Court case. [Citation.]

The Supreme Court has found the exclusionary rule to be inapplicable in a

variety of settings after undertaking the good-faith analysis, and the fact that a

court might apply the good-faith exception in a new context not yet addressed

by the Supreme Court does not mean that it is creating a ‘new, freestanding

exception’ to the exclusionary rule. [Citations.]

***

*** [W]e find in the alternative that, pursuant to the Supreme Court’s

general good-faith analysis, the police conduct in relying on the legal landscape

that existed at the time was objectively reasonable and a reasonable officer had

no reason to suspect that his conduct was wrongful under the circumstances.”

Supra ¶ 29.

¶ 98 I disagree with both aspects of the majority’s alternative holding: (1) that the

Supreme Court’s good-faith decisions contemplate a general “good-faith inquiry”

not limited to the specific circumstances in those decisions; and (2) that, in the

absence of binding appellate precedent, the good-faith exception applies to a search

conducted in objectively reasonable reliance on the existing “legal landscape.”

¶ 99 First, the authority the majority cites for the proposition that the “good-faith

inquiry” is not limited to the specific circumstances in Davis, or in any other

Supreme Court case, is a decision of the United States Court of Appeals for the

- 33 -

Fourth Circuit (United States v. Stephens, 764 F.3d 327, 338 (4th Cir. 2014)),

which, obviously, is not binding on this court. See In re May 1991 Will County

Grand Jury, 152 Ill. 2d 381, 398 (1992). I do not find the reasoning in that case to

be persuasive. The Supreme Court has, thus far, taken great care to limit application

of the good-faith exception to specific, atypical searches involving reasonable

reliance by the police. See United States v. Leon, 468 U.S. 897 (1984)

(later-invalidated warrant); Illinois v. Krull, 480 U.S. 340 (1987) (subsequently

overturned statute); Arizona v. Evans, 514 U.S. 1 (1995) (error in court-maintained

database); Herring v. United States, 555 U.S. 135 (2009) (error in

police-maintained database); Davis v. United States, 564 U.S. ___, 131 S. Ct. 2419

(2011) (later-reversed binding appellate precedent). In my view, these decisions

should be read narrowly and their holdings limited to the particular factual

scenarios before the Court. Warrantless searches generally are considered per se

unreasonable unless they fall within “ ‘a few specifically established and

well-delineated exceptions.’ ” People v. Galvin, 127 Ill. 2d 153, 169-70 (1989)

(quoting Katz v. United States, 389 U.S. 347, 357 (1967)). The majority’s adoption

of a “general good-faith analysis” (supra ¶ 31) under which evidence resulting

from an unconstitutional search will be admitted in the absence of gross negligence

by the police, regrettably turns the exception into the rule. See United States v.

Katzin, 769 F.3d 163, 189-90 (3d Cir. 2014) (en banc) (Greenaway, J., dissenting,

joined by McKee, C.J., and Ambro, Fuentes, and Smith, JJ.).

¶ 100 Under the majority’s reasoning, police officers are authorized to conduct

warrantless searches based solely on their own good judgment about the existence

of probable cause, and, if they are wrong, the evidence will almost never be

suppressed. The alarming scope of the majority’s alternative holding is exactly why

this court rejected the Krull good-faith exception in Krueger. We feared that the

good-faith exception would weaken our state exclusionary rule by leaving citizens

without a remedy for constitutionally invalid searches and seizures. The dissenters

in Davis echoed this concern with respect to the federal exclusionary rule.

“[A]n officer who conducts a search that he believes complies with the

Constitution but which, it ultimately turns out, falls just outside the Fourth

Amendment’s bounds is no more culpable than an officer who follows

erroneous ‘binding precedent.’ Nor is an officer more culpable where circuit

precedent is simply suggestive rather than ‘binding,’ where it only describes

how to treat roughly analogous instances, or where it just does not exist. Thus,

if the Court means what it now says, if it would place determinative weight

- 34 -

upon the culpability of an individual officer’s conduct, and if it would apply the

exclusionary rule only where a Fourth Amendment violation was ‘deliberate,

reckless, or grossly negligent,’ then the ‘good faith exception’ will swallow the

exclusionary rule. ***

Any such change (which may already be underway) would affect not ‘an

exceedingly small set of cases,’ [citation] but a very large number of cases,

potentially many thousands each year. [Citation.] And since the exclusionary

rule is often the only sanction available for a Fourth Amendment violation, the

Fourth Amendment would no longer protect ordinary Americans from

‘unreasonable searches and seizures.’ [Citations.] It would become a

watered-down Fourth Amendment, offering its protection against only those

searches and seizures that are egregiously unreasonable.” (Emphasis in

original.) Davis, 564 U.S. at ___, 131 S. Ct. at 2438-40 (Breyer, J., dissenting,

joined by Ginsburg, J.).

¶ 101 The majority’s expansion of the Davis good-faith exception also runs afoul of

this court’s holding in People v. Madison, 121 Ill. 2d 195 (1988), abrogated on

other grounds by Horton v. California, 496 U.S. 128 (1990). In Madison, 121 Ill.

2d at 207-08, police officers conducted a warrantless inspection of a salvage yard

pursuant to an authorizing provision in the Illinois Vehicle Code (Ill. Rev. Stat.

1983, ch. 95½, ¶ 5-403). The officers then seized 26 incomplete certificates of

vehicle title without first obtaining a search warrant, despite statutory language

stating that a warrant was required. The owner of the salvage yard was charged with

possession of the incomplete titles. At trial, the defendant’s motion to suppress the

evidence was granted, and the case was dismissed. The appellate court affirmed.

This court affirmed the lower courts. Madison, 121 Ill. 2d at 211. We first held that

the plain language of section 5-403 of the Vehicle Code required police officers to

obtain a warrant before seizing evidence in the course of a valid administrative

search. Id. at 200-06. Because the officers seized the titles without a warrant, the

evidence was illegally obtained and subject to suppression. The State next argued

that the evidence, even if illegally obtained, was not subject to the exclusionary rule

because the officers relied, in good faith, on their own interpretation of the statute.

We rejected the State’s invitation to extend the good-faith exceptions in Leon and

Krull to these circumstances. We said that the officers were acting in defiance of,

not reliance on, the language in the authorizing statute. Id. at 208. Moreover, we

held:

- 35 -

“to adopt the extension of the good-faith exception proposed by the State would

essentially eviscerate the exclusionary rule as it is currently enforced. Police

officers would be encouraged to defy the plain language of statutes as written in

favor of their own interpretations in conducting searches and seizures. Such a

proposal, giving the police unlimited authority to conduct searches and seizures

until specifically restricted by the legislature or the courts, is fundamentally at

odds with the central purpose of deterring police misconduct which underlies

the exclusionary rule.” Id.

¶ 102 Thus, this court in Madison expressly refused to recognize an extension of the

good-faith exception, reasoning that such an extension would eviscerate our state

exclusionary rule by encouraging police officers to rely on their own interpretations

of statutes rather than seek to obtain a warrant. In contravention of what we said in

Madison, the majority now recognizes a general exception to the exclusionary rule,

whereby an officer’s interpretation of a statute or case law, if made in “good faith,”

would prevent the exclusion of evidence. Today’s decision is a radical departure

from our settled case law in both Krueger and Madison, which the majority does

not reconcile.

¶ 103 Under the second part of the majority’s alternative holding, the majority rules

that, in the absence of binding appellate precedent authorizing a search, Davis

allows a good-faith exception for searches conducted in reasonable reliance on the

“legal landscape” that existed at the time the search was conducted. Supra ¶¶ 31,

51. The majority identifies only two cases decided prior to April 23, 2009, which

might have justified the officers’ actions at the time of the search. See supra ¶ 52

(citing United States v. Garcia, 474 F.3d 994, 996-98 (7th Cir. 2007), and United

States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999)). These two nonbinding

decisions were, in the majority’s view, sufficient to comprise the prevailing “legal

landscape” upon which the police could have reasonably relied in conducting their

warrantless search. 7

¶ 104 The majority’s “legal landscape” theory is directly at odds with Davis, which

contains multiple, repeated references to the officers’ reasonable reliance on

7

The majority states that the Supreme Court’s “beeper” cases, United States v. Knotts, 460 U.S.

276 (1983), United States v. Karo, 468 U.S. 705 (1984), were “widely and reasonably understood to

stand for the proposition that the fourth amendment was simply not implicated by electronic

surveillance of automotive movements.” Supra ¶ 52. However, most of the federal court opinions

referenced by the majority were decided after the search in this case took place, and, thus, could not

have been relied upon by the Aurora police.

- 36 -

“binding” precedent. Davis recognized a narrow exception, whereby “searches

conducted in objectively reasonable reliance on binding appellate precedent are not

subject to the exclusionary rule.” Davis, 564 U.S. at ___, 131 S. Ct. at 2423-24. The

Court found that the officers’ search of the defendant incident to his arrest

“followed the Eleventh Circuit’s Gonzalez precedent to the letter.” Id. at ___, 131

S. Ct. at 2428. The Court emphasized that the officers strictly complied with

“then-binding Circuit law” and “scrupulously adhered to governing law” in the

Eleventh Circuit. Id. at ___, ___, 131 S. Ct. at 2428, 2434. Furthermore, in the

course of explaining that its acceptance of a good-faith exception would not deter

defendants from challenging existing fourth amendment doctrine in future cases,

the Court noted that “defendants in jurisdictions in which the question remains

open will still have an undiminished incentive to litigate the issue.” (Emphasis

added.) Id. at ___, 131 S. Ct. at 2433. See also Davis, 564 U.S. at ___, 131 S. Ct. at

2435 (Sotomayor, J., concurring in the judgment) (noting that “[t]his case does not

present the markedly different question whether the exclusionary rule applies when

the law governing the constitutionality of a particular search is unsettled”). Davis

thus recognized that its holding was limited to jurisdictions which clearly

authorized the officers’ conduct.

¶ 105 The majority’s alternative holding is an alarming and unwarranted expansion of

the carefully circumscribed good-faith exception in Davis. There are no references

in Davis to “generally accepted authority,” “legal landscape,” or persuasive or

well-reasoned precedent. See United States v. Ortiz, 878 F. Supp. 2d 515, 539-40

(E.D. Pa. 2012). See also United States v. Martin, 712 F.3d 1080, 1081-82 (7th Cir.

2013) (per curiam) (where there was no binding appellate precedent in the Eighth

Circuit at the time that Iowa law enforcement officers attached a GPS device to the

defendant’s car, the court declined to expand Davis to allow police to rely on “a

diffuse notion of the weight of authority around the country”). Accordingly, the

majority’s holding that the Davis good-faith exception applies based on the

officers’ objectively reasonable reliance on the “legal landscape” is a deliberate

misreading of Davis.

¶ 106 The majority’s alternative holding is troubling for the additional reason that it

signifies this court’s abandonment of its duty to decide constitutional issues and

shifts such decisionmaking to the police. Based on its application of the Davis

good-faith exception, the majority declines to consider the important constitutional

issues raised in this appeal. At the time of the search in this case, there was no

binding precedent in Illinois with respect to warrantless, surreptitious GPS

- 37 -

installation and monitoring. And because the majority refuses to address the

constitutionality of GPS surveillance, there still is none. I fear that the majority’s

expansion of the good-faith doctrine will inevitably lead to the avoidance of

meaningful analysis of the constitutionality of searches and seizures, particularly

those involving new technology.

¶ 107 III. Knotts, Karo, and Garcia Were Not “Binding” Authority

Under Davis

¶ 108 My final point of disagreement is with the majority’s application of the Davis

good-faith exception to the police officers’ objectively reasonable reliance on

United States v. Knotts, 460 U.S. 276 (1983), United States v. Karo, 468 U.S. 705

(1984), and United States v. Garcia, 474 F.3d 994 (7th Cir. 2007). None of these

cases constitutes “binding” precedent within the meaning of Davis.

¶ 109 Knotts held that the use of a covert beeper device to monitor a vehicle’s

movements during a single journey did not amount to a 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.” Knotts, 460 U.S. at

281-82, 285. The beeper was placed in a chloroform container with the consent of

the container’s owner before being transferred to the defendant. Id. at 278. The

Court expressly left open the question of whether the warrantless installation of the

device converted the subsequent tracking into a search. Id. at 279 n.*. See also id. at

286 (Brennan, J., concurring in the judgment, joined by Marshall, J.) (“I think this

would have been a much more difficult case if respondent had challenged, not

merely certain aspects of the monitoring of the beeper ***, but also its original

installation.”). Thus, Knotts did not “specifically authorize[ ]” the “particular police

practice” (emphasis omitted) (Davis, 564 U.S. at ___, 131 S. Ct. at 2429) in this

case—the installation of the GPS device on the Kia, and officers could not have

reasonably relied on Knotts in their decision to install the device without a warrant.

¶ 110 Karo addressed the government’s placement of a beeper device in a container

of ether, which was sold to the respondents by a government informant and used to

monitor them without respondents’ knowledge. The Court held that the

respondents had no legitimate expectation of privacy in the container because, at

the time of the beeper’s placement, the respondents did not own the container.

Karo, 468 U.S. at 711. Because the container’s owner consented to the beeper

- 38 -

placement, the actual installation of the beeper violated no one’s fourth amendment

rights. Id. The Court went on to hold that the transfer of the beeper-laden can to the

respondents did not constitute a search because it conveyed no information that

respondents wished to keep private and, thus, infringed no privacy interests. Id. at

712. Nor did the transfer constitute a seizure, because there was no “meaningful

interference with an individual’s possessory interests” in the property. (Internal

quotation marks omitted.) Id. As in Knotts, the Karo Court “did not consider a

scenario in which the government installs a tracking device on property that already

belongs to the defendant.” United States v. Sparks, 711 F.3d 58, 65 n.4 (1st Cir.

2013).

¶ 111 Neither Knotts nor Karo stands for the proposition that the warrantless

installation of a tracking device onto a privately owned vehicle without the owner’s

consent is lawful under the fourth amendment. Therefore, the police in this case

could not have reasonably relied on either of these cases to conclude that the

nonconsensual installation of the GPS device was constitutionally authorized.

Significantly, United States v. Jones, 565 U.S. ___, 132 S. Ct. 945 (2012), in which

the Court found that installation of a GPS device was a search, did not overrule

either Knotts or Karo but distinguished them on the basis that neither case involved

the nonconsensual installation of a tracking device onto private property. In other

words, the Supreme Court expressly rejected the reading of those cases which the

majority adopts here. See id. at ___, 132 S. Ct. at 951-52 (holding that a trespassory

installation of a tracking device was not at issue in Knotts because the beeper was

placed in the container with the consent of the then-owner, and Knotts did not

challenge that installation); id. at ___, 132 S. Ct. at 952 (holding that the installation

of the beeper in Karo was with the consent of the original owner; moreover,

because “Karo accepted the container as it came to him, beeper and all, [he] was

therefore not entitled to object to the beeper’s presence. [Citation.] Jones, who

possessed the Jeep at the time the Government trespassorily inserted the

information-gathering device, is on much different footing.”)

¶ 112 The fact that the Jones Court distinguished Knotts and Karo, but did not

overrule them, takes this case out of the Davis good-faith exception. In Davis, the

police officers’ search followed binding Circuit precedent “to the letter,” and,

although that precedent was later overturned, the officers’ conduct at the time of the

search “was in strict compliance with then-binding Circuit law and was not

culpable in any way.” Davis, 564 U.S. at ___, 131 S. Ct. at 2428. The complete

absence of police culpability or deliberate misconduct “doom[ed] Davis’s claim”

- 39 -

because exclusion of the evidence would not yield any meaningful deterrence. Id.

at ___, 131 S. Ct. at 2428-29. Under the Court’s reasoning, where binding appellate

authority “specifically authorizes a particular police practice” (emphasis in

original) (id. at ___, 131 S. Ct. at 2429), exclusion of the evidence does not serve

the purpose of deterring unconstitutional police conduct because the sole

responsibility for the fourth amendment violation lies with the appellate judiciary

and not with the police. When the police conduct a search in reliance on precedent

that does not specifically authorize the particular practice, however, the

exclusionary rule does provide meaningful deterrence. It deters law enforcement

officers from taking the fourth amendment inquiry into their own hands by

extrapolating from, or analogizing to, existing case law, instead of seeking a

warrant from a neutral magistrate. See United States v. Katzin, 769 F.3d 163,

191-92 (3d Cir. 2014) (en banc) (Greenaway, J., dissenting, joined by McKee, C.J.,

and Ambro, Fuentes, and Smith, JJ.). The exclusionary rule also encourages law

enforcement officials to “err on the side of constitutional behavior” in the face of

unsettled or equivocal fourth amendment law. See Davis, 564 U.S. at ___, 131 S.

Ct. at 2435 (Sotomayor, J., concurring in the judgment); State v. Mitchell, 323 P.3d

69, ¶ 31 (Ariz. Ct. App. 2014). “[T]he Davis requirement of ‘binding appellate

precedent’ means that government agents should not be and need not be vested with

discretion in predicting or anticipating how the law will develop and how it should

be applied. *** The solution is simple: the import of Davis is that officers acting

without clearly applicable binding appellate guidance should err on the side of

caution and obtain a warrant.” United States v. Ortiz, 878 F. Supp. 2d 515, 542

(E.D. Pa. 2012).

¶ 113 In contrast to Davis, where binding precedent explicitly authorized the officers’

actions and the officers were not culpable in any way because they followed the

Eleventh Circuit precedent “to the letter” (Davis, 564 U.S. at ___, ___, 131 S. Ct. at

2428, 2429), here there was no binding precedent which specifically authorized the

police officers’ conduct. See, e.g., id. at ___, 131 S. Ct. at 2437 (Breyer, J.

dissenting, joined by Ginsburg, J.) (Davis did not address officers’ reliance on a

decision with “clearly distinguishable” or “highly analogous” facts); United States

v. Sparks, 711 F.3d 58, 64 (1st Cir. 2013) (Davis good-faith exception applies only

to precedent that is “clear and well-settled”). Thus, there is no basis for holding that

the police reasonably relied on Knotts or Karo as authorization for their installation

of the GPS device without first obtaining a warrant or permission from the

vehicle’s owner.

- 40 -

¶ 114 The majority also holds that Davis applies because the Aurora police acted in

objectively reasonable reliance on the Seventh Circuit’s decision in United States v.

Garcia, 474 F.3d 994 (7th Cir. 2007). Garcia held that the warrantless installation

of a GPS tracking device on a vehicle in order to obtain information about a

suspect’s movements in the vehicle was not a fourth amendment “search.” Id. at

996-98. Unlike the Eleventh Circuit precedent relied on by the police in Davis,

however, Garcia was not “binding appellate precedent” on Illinois state courts, the

jurisdiction in which the Aurora police were operating and in which defendant was

prosecuted.

¶ 115 The applicable body of case law upon which a law enforcement officer may

reasonably rely consists of those decisions that are binding on the jurisdiction in

which the officer operates. See Hudson v. Michigan, 547 U.S. 586, 599 (2006)

(noting that officers are expected to learn and abide by “what is required of them”

by courts having jurisdiction over them). The Davis good-faith exception thus is

not available unless there exists binding precedent within the particular jurisdiction

governing the law enforcement officials. See United States v. Aguiar, 737 F.3d 251,

261 (2d Cir. 2013) (holding that “binding appellate precedent” within the meaning

of Davis refers only to precedent of the Second Circuit and the United States

Supreme Court); United States v. Barraza-Maldonado, 732 F.3d 865, 867 (8th Cir.

2013) (“[f]or the good faith exception to apply, officers performing a particular

investigatory action—such as GPS tracking—must strictly comply with binding

appellate precedent governing the jurisdiction in which they are acting”).

¶ 116 Where state courts are silent on the constitutionality of a particular police

practice, law enforcement officers who engage in that practice without first

obtaining a search warrant from a neutral magistrate must knowingly accept the

risk that their conduct will be found unconstitutional. First, they risk that a state

court may decide to depart from federal case law in interpreting a federal

constitutional provision. 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, 76 (2012). Decisions of a United States court of appeals,

while persuasive, are not binding on state courts. In re May 1991 Will County

Grand Jury, 152 Ill. 2d 381, 398 (1992) (citing People v. Fields, 135 Ill. 2d 18, 72

(1990)); see also People v. Eyler, 133 Ill. 2d 173, 225 (1989) (“[u]ntil the Supreme

Court of the United States has spoken, State courts are not precluded from

exercising their own judgments on Federal constitutional questions”). Second, the

police risk that a state court may interpret a constitutional provision in its own state

- 41 -

constitution more strictly than a corresponding provision in the federal constitution.

See In re May 1991 Will County Grand Jury, 152 Ill. 2d 381, 390 (1992). In fact,

this court has held that the Illinois Constitution of 1970 “offers greater protection

against the invasion of an individual’s privacy rights than does the Federal

Constitution.” Id. Thus, in a posture of state silence and federal approval of a

particular search, the exclusionary rule serves its intended purpose: to “deter future

Fourth Amendment violations.” Davis, 564 U.S. at ___, 131 S. Ct. at 2426; see also

id. at ___, 131 S. Ct. at 2435 (Sotomayor, J., concurring in the judgment) (“when

police decide to conduct a search or seizure in the absence of case law (or other

authority) specifically sanctioning such action, exclusion of the evidence obtained

may deter Fourth Amendment violations” (emphasis added)); 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, 76 (2012).

¶ 117 Of course, the police can avoid the harsh consequence of the evidence being

excluded by obtaining a warrant in the first place, rather than gambling that the

search will not eventually be held unconstitutional by a court in that jurisdiction.8

In this case, the officers were state police officers investigating a state crime and

had no reason to believe that the case would be prosecuted in federal court. 9

Accordingly, the officers could not have presumed, in reliance on Garcia, that the

warrantless installation of the GPS device was constitutional.

¶ 118 For the foregoing reasons, I respectfully dissent.

¶ 119 JUSTICES FREEMAN and THEIS join in this dissent.

8

A warrant is now statutorily required in Illinois before the police may use a GPS to track a

person’s movements. Effective August 26, 2014, the Freedom From Location Surveillance Act

requires a law enforcement agency to obtain a court order supported by probable cause before using

an electronic device to obtain “current or future location information pertaining to a person or his or

her effects.” Pub. Act 98-1104, § 10 (eff. Aug. 26, 2014).

9

The majority emphasizes that the Aurora police detective “stood in exactly the same shoes” as

the Alabama police officer in Davis, who conducted a search in the course of investigating a state

traffic offense and was found to have relied on federal appellate precedent. Supra ¶¶ 31, 52. At the

time of the search in Davis, however, Alabama state case law expressly authorized the search. State

v. Gargus, 855 So. 2d 587, 590 (Ala. Crim. App. 2003); see 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, 77 n.101 (2012). By contrast, prior to the search in this case, no

Illinois state court had addressed the constitutionality of GPS installation or tracking.

- 42 -