The "Davis" Good Faith Rule and Getting Answers to Questions "Jones" Left Open

June 13, 2013

The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than beginning to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, these courts are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based on the new exception to the exclusionary remedy that the Supreme Court laid out in the 2011 case of Davis v. United States. When courts narrowly apply the Davis rule, they deny suppression remedies and avoid new Fourth Amendment analysis when binding appellate precedent specifically authorized the investigation. That approach will cease to be controlling as soon as courts consider surveillance investigations taking place after the Jones decision issued. When courts apply the Davis rule broadly, however, they deny the exclusionary remedy based on the culpability of the investigating officer or even more amorphous criteria. If broad applications persist, it will take a very long time indeed to get answers to the questions Jones left open. During that time, the constitutional right to privacy in location data will remain undeveloped and unprotected.