In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

WESLEY TORRANCE KELLY,Petitioner,

v.

STATE OF MARYLAND, Respondent.

On Petition for Writ of Certiorari to theCourt of Appeals of Maryland

PETITION FOR WRIT OF CERTIORARI

Paul B. DeWolfe Public Defender

Juan P. Reyes Counsel of Record Assistant Public DefenderOffice of the Public DefenderAppellate Division6 Saint Paul StreetSuite 1302Baltimore, MD 21202(410) 767-4284jreyes@opd.state.md.us

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

NO.

i

QUESTION PRESENTED

Whether this Court’s decision in United States v.Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55(1983) can serve as the “binding appellate precedent”necessary under the good-faith exception to theexclusionary rule as defined by this Court in Davis v.United States, ____ U.S. _____, 131 S.Ct. 2419, 180L.Ed.2d 285 (2011) to specifically authorize theplacement and continuous tracking of a GlobalPositioning System device on the Petitioner’s privateproperty over an extended period of time in the absenceof any binding state or federal circuit precedentauthorizing this police action at the time of the search.

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iv

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISION INVOLVED . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 2

REASONS FOR GRANTING THE WRIT . . . . . . . . 8

A. This Court’s holdings in Davis v. United States,____ U.S. ____, 131 S.Ct. 2419, 180 L.Ed. 2d 285(2011) and United States v. Jones, 565 U.S. ___,132 S.Ct. 945, 181 L.Ed.2d 911 (2012) haveraised numerous and persistent questions withrespect to the proper application of the good-faith exception to the exclusionary rule wherepolice use advanced technology not specificallyauthorized by binding appellate precedent. . . . . 8

B. A split has developed among appellate courts atevery level with respect to how the Davis good-faith exception should be applied to warrantlessGPS placement and tracking pre-Jones. . . . . . . 11

C. Review of the present case is well suited toaddress the split of authority. . . . . . . . . . . . . . . 18

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

iii

APPENDIX

Appendix A Opinion in the Court of Appeals ofMaryland(December 23, 2013) . . . . . . . . . . App. 1

Appendix B Opinion in the Court of SpecialAppeals of Maryland(November 27, 2012) . . . . . . . . . App. 24

Appendix C Excerpts of Official Transcript ofProceedings, Motion to Suppress inthe Circuit Court for Howard County,Maryland(November 19, 2010) . . . . . . . . . App. 64

Appendix D Excerpts of Official Transcript ofProceedings, Motions Hearing in theCircuit Court for Anne ArundelCounty, Maryland(October 15, 2010) . . . . . . . . . . . App. 84

iv

TABLE OF AUTHORITIES

CASES

Arizona v. Evans, 514 U.S. 1, 115 S.Ct. 1185, 131 L.Ed.2d 34(1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 19

Davis v. United States, ____ U.S. _____, 131 S.Ct. 2419, 180 L.Ed.2d 285(2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 172 L.Ed.2d 496(2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Illinois v. Krull, 480 U.S. 340, 107 S.Ct. 1160, 94 L.Ed.2d 364(1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 19, 21

Kelly v. State, 208 Md. App. 218, 56 A.3d 523 (2012) . . . . . . 1, 7

Kelly v. State, 436 Md. 406, 82 A.3d 205 (2013) . . . . . . . . passim

New York v. Belton, 453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed 2d 768(1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 19

v

State v. Henry, 2012 Ohio 4748 (Ohio Ct. App., MontgomeryCounty Oct. 12, 2012) . . . . . . . . . . . . . . . . . . . . 12

State v. Mitchell, 685 Ariz. Adv. Rep. 7 (April 21, 2014) . . 14, 17, 18

State v. Sullivan, 2014 Ohio 1443, 2014 Ohio App. LEXIS 1328(Ohio Ct. App., Franklin County Apr. 3, 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17

Stone v. State, 178 Md. App. 428, 941 A.2d 1238 (2008) . . . . . . 6

United States v. Aguiar, 737 F.3d 251 (2d. Cir. 2013) . . . . . . . . . 13, 17, 18

United States v. Baez, 878 F. Supp. 2d 288 (D. Mass. 2012) . . . . . . . . . 11

United States v. Davis, 598 F.3d 1259 (11th Cir. 2010) . . . . . . . . . . 13, 24

United States v. Figueroa-Cruz, 914 F. Supp. 2d 1250 (N.D. Ala., 2012) . . . . . . . 14

United States v. Jones, 565 U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911(2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

vi

United States v. Katzin, 732 F.3d 187 (3d Cir. 2013), vacated by,rehearing en banc, granted by United States v.Katzin, 2013 U.S. App. LEXIS 24722 (3d Cir.Dec. 12, 2013) . . . . . . . . . . . . . . . . . . . . . 11, 12, 13

United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

United States v. Lee, 862 F. Supp. 2d 560 (E.D. Ky. May 22, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14

United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677(1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 22

United States v. Leon, 856 F. Supp. 2d 1188 (D. Haw. 2012) . . . . . . . . 11

United States v. Lopez, 951 F. Supp. 2d 657 (D. Del. 2013) . . . . . . . . . . 14

United States v. Lujan, ____ F.3d 2012 U.S. Dist. LEXIS 95804 (N.D.Miss. July 10, 2012) . . . . . . . . . . . . . . . . . . . . . . 12

United States v. Martin, 712 F.3d 1080 (2013) . . . . . . . . . . . . . . . . . . 15, 16

United States v. Ortiz, 878 F. Supp. 2d 515 (E.D. Pa. July 20, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 14, 16

United States v. Robinson, 903 F. Supp. 2d 766 (2012) . . . . . . . . . . . . . . . . 16

vii

United States v. Rose, 914 F. Supp. 2d 15 (D. Mass., Sept. 14, 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

United States v. Sparks, 711 F.3d 58 (1st Cir. 2013) . . . . . . . . . . . . . 13, 17

CONSTITUTION AND STATUTES

28 U.S.C.A. Section 1257(a) . . . . . . . . . . . . . . . . . . . 1

U.S. Const. amend IV . . . . . . . . . . . . . . . . . . . passim

OTHER AUTHORITY

Caleb Mason, New Police Surveillance Technologiesand the Good-Faith Exception, Nevada LawJournal (Vol. 13:60) (Fall 2012) . . . . . . . . . . 19, 22

1

Petitioner, Wesley Torrance Kelly by counsel, JuanP. Reyes, Assistant Public Defender, Office of thePublic Defender for the State of Maryland, respectfullyrequests that this Court issue a writ of certiorari toreview the judgment of the Court of Appeals ofMaryland entered on December 23, 2013 in WesleyTorrance Kelly v. State of Maryland, Court of Appeals,September Term, 2013, No. 26.

OPINIONS BELOW

The reported opinions of the Court of Appeals ofMaryland, Kelly v. State, 436 Md. 406, 82 A.3d 205(2013) and the Court of Special Appeals of Maryland,Kelly v. State, 208 Md. App. 218, 56 A.3d 523 (2012) arereproduced in the Appendix to this Petition. (App. 1)(App. 24). The relevant excerpts from thetranscriptions of the motions hearings held in therespective trial courts are also included in theAppendix. (App. 64) (App. 84).

JURISDICTION

The opinion of the Court of Appeals of Maryland,affirming the judgments of the Circuit Courts for AnneArundel County and Howard County, was issued onDecember 23, 2013. (App. 1). An application for anextension of time within which to file a petition for writof certiorari was presented to the Chief Justice who onMarch 12, 2014, extended the time for filing to andincluding May 22, 2014. The jurisdiction of this Courtis invoked under 28 U.S.C.A., Section 1257(a).

2

CONSTITUTIONAL PROVISION INVOLVED

CONSTITUTION OF THE UNITED STATES, Amendment IV

The right of the people to be secure in theirpersons, houses, papers, and effects, againstunreasonable searches and seizures, shall not beviolated, and no Warrants shall issue, but uponprobable cause, supported by Oath oraffirmation, and particularly describing theplace to be searched, and the persons or thingsto be seized.

STATEMENT OF THE CASE

1. A Global Positioning System (“GPS”) unit wasinstalled on Petitioner’s car by Howard Countydetectives on April 2, 2010 at the request of propertydetectives who had been investigating a burglary thathad occurred earlier in the year in Howard County andsuspected Mr. Kelly’s involvement. The tracker wasprogrammed such that Howard County police would benotified if and when Mr. Kelly’s vehicle, a ChevroletTrailblazer, came within Howard County. The GPStracking device was placed on Mr. Kelly’s vehicle on apublic street outside his residence at 1118 HarwallRoad in Woodlawn in Baltimore County.

2. The GPS device, like most modern cellularphones, had a cell phone component and a GPScomponent and both were used to determine thelocation of the target vehicle at any given time. Thedevice transmitted information, “just like a cell phonewould.” The self-powered device was installed on theexterior of the vehicle using magnets. Sergeant DuanePierce of the Howard County Police Departmentcrawled underneath the vehicle and attached the

3

device to the frame of the car. The GPS device wasprogrammed to continuously track and record thelocation of the vehicle and immediately began to do soupon installation. Officers had the option of reviewingthe location data at a later time and could also initiate“real time” tracking, which allowed them to track thevehicle as it moved. According to Sergeant Pierce,there were three methods of retrieving data from theGPS device: 1) connecting it to a computer afterdetachment from the vehicle, 2) obtaining the recordedinformation wirelessly while the device was stillattached to the vehicle, and 3) “live tracking.”

3. On April 5, 2010, shortly after 4:00 A.M., theGPS tracker notified Sergeant Pierce that Mr. Kelly’svehicle was approaching Howard County. He obtainedthe specific location and sent Detective Laffin toRiverwood Drive and Old Columbia Road in HowardCounty. As Detective Laffin drove towards the area, heobserved a vehicle matching the description of Mr.Kelly’s vehicle, but was not able to see who was drivingthe vehicle. Laffin continued to 7125 Riverwood Roadafter Sergeant Pierce informed him that the vehicle inquestion had stopped at that location. Laffin found adoor at the Advanced Programs, Inc. (“API”) building at7125 Riverwood Drive to be unsecured and observedpry marks and damage to the strike plate. Meanwhile,the alarm company monitoring the business alertedpolice to an alarm at that location. Detectives met withan API employee who informed them that there wereitems in brown cardboard boxes that had been stolenfrom the warehouse. Specifically, two Hewlett Packardprinter models, two API computer monitors and fourAPI boxes containing computer hard drives, keyboards,and computer mice had been taken.

4

After determining that a burglary had occurred atAPI, officers again utilized the GPS tracker to locateMr. Kelly’s vehicle at 8:30 A.M. at the Carroll ManorElementary School in Adamstown. Detectivesresponded to the area and observed the vehicle parkedin the parking lot of the school, which was underconstruction. At 10:30 A.M., the officers went onto theconstruction site to look inside of the vehicle.Detectives saw several large boxes in the back of thevehicle and a Hewlett Packard printer manual locatedin the front passenger seat. They left the site andcontinued their surveillance and observed a manmatching Mr. Kelly’s description enter the vehicle,open the rear door, and place a computer monitor inone of the boxes. He remained in the car for 20 minutesthen returned to the construction site. Mr. Kelly left inthe vehicle at approximately 2:30 P.M. and thedetectives followed him. The detectives followed him tohis residence at 1118 Harwall Road in Gwynn Oak,Maryland. He entered the house, and then left shortlythereafter. He drove to another residence at 3706 WestSaratoga Street, entered and exited with two computerboxes that he placed in his truck. Mr. Kelly was thenobserved visiting a number of local pawn shops in thearea that evening.

On April 6, 2010, officers resumed surveillancewhen Detective Pierce received a notification from theGPS unit indicating that the vehicle was moving. Officers found the vehicle at the Westview PromenadeCenter in Frederick, parked to the rear of the shoppingcenter behind several closed businesses. Detectivesobserved a black male matching Mr. Kelly’s descriptionwalking from the direction of the Verizon Wireless andWhite House Black Market stores before the suspect

5

spotted police and returned to his vehicle and left thearea. He proceeded to a commercial business park onPegasus Court in Frederick and was observed drivingand stopping in front of several closed businesses. Heexited the vehicle briefly then walked back and droveto the construction site at Carroll Manor ElementarySchool. Officers found evidence of two attemptedbreak-ins at the business park.

On April 12, 2010, at approximately 4:00 A.M.,Detective Pierce received an alert from the GPStracking unit that the vehicle was in motion andthereafter notified surveillance units to follow thevehicle. Sergeant Pierce notified officers that thevehicle was on Interstate 695 headed towards GlenBurnie. At 4:35 A.M., Sergeant Pierce notified theresponding officers that the vehicle was parked in theparking lot of the Chesapeake Square Shopping Center. Officers arrived to find the vehicle backed into aparking spot in front of the Casual Male clothing storeat 6710 Ritchie Highway in Glen Burnie in AnneArundel County. One of the detectives noticed that thefront door of the business had been smashed out andobserved the suspect enter the store with an emptyplastic bag and exit the store with a full bag of clothing. Officers then approached the vehicle and the suspectquickly entered the vehicle and exited the parking lotat a high rate of speed.

The suspect led officers on a high-speed chase andeventually eluded them. Sergeant Pierce utilized theGPS tracker to locate the vehicle parked in the alleybetween Wesley Avenue and Bellview Avenue. Thedriver had fled the scene prior to the officers’ arrivaland the vehicle was towed to the Howard County Police

6

Department Northern District. Search and seizurewarrants were prepared for both of Mr. Kelly’ssuspected residences and for the vehicle as well as thepawn shops that he had visited. Mr. Kelly was takeninto custody at 2:00 P.M. after leaving one of theresidences.

4. Petitioner was indicted in both Howard andAnne Arundel counties and moved to suppress any andall evidence obtained as the result of the warrantlessplacement and use of the GPS device on the car he wasdriving in both cases. Both lower courts denied themotions. Judge Pamela L. North, presiding in AnneArundel County, denied the motion due to the lack oflegal authority prohibiting the officer’s actions inplacing the GPS unit on the car. (App. 94). JudgeTimothy J. McCrone, presiding in Howard County,relied on United States v. Knotts, 460 U.S. 276, 103S.Ct. 1081, 75 L.Ed.2d 55 (1983) and Stone v. State, 178Md. App. 428, 941 A.2d 1238 (2008)1, in holding thatPetitioner had no reasonable expectation of privacy inhis location as he traveled on public roads and that theinstallation of the GPS device was not itself a search.(App. 81).

5. On December 1, 2010, in the Circuit Court forHoward County, Judge McCrone presiding, a juryconvicted Petitioner of theft and acquitted him ofburglary in the second degree. Judge McCrone

1 In Stone v. State, 178 Md. App. 428, 444, 941 A.2d 1238 (2008), anintermediate appellate court had occasion to discuss the use ofGPS and cellular phone devices when the defendant contendedthat the lower court had abused its discretion by limiting the cross-examination of an officer concerning the use of such devices tolocate the defendant and effectuate a stop.

7

sentenced Petitioner to ten years in the Division ofCorrection. On January 4, 2011, in a non-jury trial inthe Circuit Court for Anne Arundel County, JudgeWilliam C. Mulford convicted Petitioner of burglary inthe second degree and sentenced him to a concurrentten years in the Division of Correction. Subsequently,the cases were consolidated for the purposes of briefingand argument on appeal.

6. On appeal, Petitioner argued that: (1) theplacement and continuous tracking of the GPS deviceon Petitioner’s vehicle constituted an unreasonablesearch and that all of the evidence discovered as aresult of the illegal search should be suppressed and(2) that the good-faith exception to the exclusionaryrule did not apply under the circumstances because nobinding appellate precedent existed to authorize thedetective’s actions.

The Court of Special Appeals affirmed thejudgments in a reported opinion filed on November 27,2012, Kelly v. State, 208 Md. App. 218, 56 A.3d 523(2012). The Court of Special Appeals agreed that thepolice officers’ actions constituted a search butconcluded that the good-faith exception to theexclusionary rule applied and that the trial courts didnot err in denying the motions to suppress. (App. 63).

7. The Court of Appeals affirmed the decision of thelower court in Kelly v. State, 436 Md. 406 (2013). (App.1). The Court of Appeals held that this Court’s decisionin Knotts was “binding appellate precedent” as definedby this Court in Davis v. United States, ____ U.S. _____,131 S.Ct. 2419, 180 L.Ed.2d 285 (2011); that itauthorized the police to install and utilize GPStracking of Petitioner’s vehicle on public roads; and

8

that detectives acted in objectively reasonable relianceon that authority when they conducted their GPStracking of Petitioner’s vehicle. Id. at 426. The Courtof Appeals acknowledged that no Maryland appellatedecision had held expressly that the attachment anduse of a GPS tracking device was permissible under theFourth Amendment, but held that police officers couldhave reasonably relied on Knotts in affixing the GPStracking device to the vehicle of a person under theirinvestigation for the purpose of conductingsurveillance. Id. at 425-26.

REASONS FOR GRANTING THE WRIT

A. This Court’s holdings in Davis v. UnitedStates, ____ U.S. ____, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011) and United States v. Jones, 565U.S. ___, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012)have raised numerous and persistentquestions with respect to the properapplication of the good-faith exception to theexclusionary rule where police use advancedtechnology not specifically authorized bybinding appellate precedent.

On January 23, 2012, this Court issued its decisionin United States v. Jones, 565 U.S. ___, 132 S.Ct. 945,949, 181 L.Ed.2d 911 (2012), holding that “theGovernment’s installation of a GPS device on a target’svehicle, and its use of that device to monitor thevehicle’s movements, constitutes a ‘search’” within themeaning of the Fourth Amendment. Only six monthsearlier, in Davis v. United States, ____ U.S. ____, 131S.Ct. 2419, 2434, 180 L.Ed. 2d 285 (2011), this Courtheld that the good-faith exception to the exclusionaryrule applied when police conducted a search in

9

objectively reasonable reliance on “binding appellateprecedent.” At issue in Davis was the search incidentto arrest of the occupants of a vehicle that included thepassenger compartment of the vehicle. The search wasunconstitutional under Arizona v. Gant, 556 U.S. 332,129 S. Ct. 1710, 173 L. Ed. 2d 485 (2009), but Gant wasdecided after the searches occurred. Existing EleventhCircuit precedent prior to Gant explicitly held suchsearches to be constitutional under New York v. Belton,453 U.S. 454, 101 S. Ct. 2860, 69 L. Ed 2d 768 (1981).The Belton rule was clear and unambiguous and thelower courts, including the Eleventh Circuit, haduniformly interpreted it as a bright-line rule thatsearches of the interior of the car were per sepermissible incident to the arrest of the occupant. Where it was undisputed that the prior case lawauthorized the police action, this Court held applicationof the exclusionary rule would not be appropriate“when binding appellate precedent specificallyauthorizes a particular police practice,” and the policeconduct a search in “objectively reasonable reliance” onthat precedent. Davis,131 S.Ct. at 2429. But thelanguage in Davis was conspicuously specific and verynarrow. In discussing whether the police wereculpable, the majority in Davis noted that the “officers’conduct was in strict compliance with then-bindingCircuit law.” Id. at 2428-29. The opinion repeatedlyreferenced “binding” authority, see, e.g., id., at 2428,2429, 2431, 2434; and made no reference to“persuasive” or “generally accepted” authority.

In her concurrence, Justice Sotomayor emphasizedthat the majority’s holding was narrow, did not applywhere the law was unsettled, and suggested that theexclusionary rule would still have deterrent value

10

where existing case law in the relevant jurisdiction wasambiguous:

This case does not present the markedlydifferent question whether the exclusionary ruleapplies when the law governing theconstitutionality of a particular search isunsettled. As we previously recognized indeciding whether to apply a Fourth Amendmentholding retroactively, when police decide toconduct a search or seizure in the absence ofcase law (or other authority) specificallysanctioning such action, exclusion of theevidence obtained may deter Fourth Amendmentviolations….

Id. at 2435.

Justice Breyer noted in his dissent that “to applythe term ‘binding appellate precedent’ often requiresresolution of complex questions of degree…[L]itigantswill now have to create distinctions to show thatprevious Circuit precedent was not ‘binding’ lest theyfind relief foreclosed even if they win theirconstitutional claim.” Davis, 131 S. Ct. at 2347 (Breyer,J., dissenting). Justice Breyer went on to predict theconfusion that would be forthcoming. “Suppose anofficer’s conduct is consistent with the language of aFourth Amendment rule that a court of appealsannounced in a case with clearly distinguishable facts? Suppose the case creating the relevant precedent didnot directly announce any general rule but involvedhighly analogous facts? What about a rule that allother jurisdictions, but not the defendant’s jurisdiction,had previously accepted? What rules can be developedfor determining when, where, and how these different

11

kinds of precedents do, or do not, count as relevant‘binding precedent?’” Id.

B. A split has developed among appellate courtsat every level with respect to how the Davisgood-faith exception should be applied towarrantless GPS placement and tracking pre-Jones.

As Justice Breyer predicted, the holding in Davishas prompted a surge in judicial decisions across thecountry regarding its application, post-Jones, to casesin which GPS monitoring began before Jones wasdecided. An analysis of the decisions reveals that thereis no consensus as to how and when Davis should applyunder these circumstances. Appellate courts at boththe State and Federal levels are openly divided as tohow to interpret this Court’s holding in Davis withrespect to “reasonable reliance on binding appellateprecedent” and how to apply that holding to the policeactions of warrantless placement and tracking of GPSdevices on a suspect’s private property. Some courtshave held that law enforcement can rely on non-binding appellate precedent from other circuits. SeeUnited States v. Baez, 878 F. Supp. 2d 288 (D. Mass.2012); United States v. Leon, 856 F. Supp. 2d 1188 (D.Haw. 2012). Others have held directly to the contrary,reading Davis to require actual binding appellateprecedent specifically authorizing the challenged policepractice in the jurisdiction’s state or federal circuitcourt. See United States v. Katzin, 732 F.3d 187 (3d Cir.2013), vacated by, rehearing en banc, granted by UnitedStates v. Katzin, 2013 U.S. App. LEXIS 24722 (3d Cir.

12

Dec. 12, 2013)2; United States v. Lee, 862 F. Supp. 2d560 (E.D. Ky. May 22, 2012); United States v. Ortiz,878 F. Supp. 2d 515 (E.D. Pa. July 20, 2012); UnitedStates v. Lujan, ____ F.3d ____, 2012 U.S. Dist. LEXIS95804 (N.D. Miss. July 10, 2012); State v. Henry, 2012Ohio 4748 (Ohio Ct. App., Montgomery County Oct. 12,2012).

Still others, including the Maryland Court ofAppeals in the case at bar, have held that this Court’sholding in Knotts3 can serve as “binding appellateprecedent,” such that law enforcement could rely solelyon Knotts, in good faith, to carry out the placement andcontinuous tracking of a GPS device on a citizen’s

2 Oral argument related to the en banc petition is now scheduledfor May 28, 2014.

3 In Knotts, a beeper was placed inside a container of chloroformand then sold to the defendant. The police followed the containeras it was driven from Minnesota to Wisconsin. This Courtemployed a reasonable expectation of privacy analysis, see Katz v.United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) todetermine whether the officers’ actions constituted a FourthAmendment search and held that a person traveling in anautomobile on public thoroughfares has no reasonable expectationof privacy in his movements from one place to another. Id. at 281.It found that the beeper surveillance amounted principally to thefollowing of an automobile on public streets and highways and itdetermined that such use should not be deemed a search forpurposes of the Fourth Amendment. However, in response to thedefendant’s warning that the ruling would make possible “twenty-four hour surveillance of any citizen of this country…withoutjudicial knowledge or supervision,” this Court stated that “if suchdragnet practices…should eventually occur, there will be timeenough then to determine whether different constitutionalprinciples may be applicable.” Id. at 284.

13

private vehicle over an extended period of time. SeeUnited States v. Aguiar, 737 F.3d 251 (2d. Cir. 2013)4;Kelly v. State, 436 Md. 406 (2013). Such reasoning hasin turn been rejected outright by a large contingent ofstate and federal courts. See United States v. Sparks,711 F.3d 58, 65 (1st Cir. 2013) (Knotts “did not addressthe issue of a beeper’s installation on the defendant’sproperty.”); Katzin, 732 F.3d at 207-208 (“Davisextends good faith protection only to acts that areexplicitly sanctioned by clear and well-settledprecedent, and neither Knotts nor Karo5 sanction thetype of intrusion [physical trespass] at issue in this

4 A petition for writ of certiorari was filed on May 12, 2014 in thiscase and presents the question: “Whether the good faith exceptionadopted by the Court in United States v. Davis applies to high-techsearches not previously sanctioned by binding appellateprecedent.” Petition for Writ of Certiorari, Aguiar v. United Statesof America, (May 12, 2014).

5 In United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d530 (1984) agents from the Drug Enforcement Agency planted abeeper in a can of ether that was to be delivered to Mr. Karo withthe consent of the seller of the shipment of ether. The monitoringof the beeper included monitoring in a private residence not opento visual surveillance. This Court addressed whether theinstallation of the beeper was a constitutional search andconcluded that it was not because at the time of the installation ofthe beeper, the can belonged to the DEA and “by no stretch of theimagination” could it be said that the defendant had any legitimateexpectation of privacy in it. Id. at 711. But, with respect to themonitoring of the beeper in a private residence, the Court held thatthe DEA engaged in an unreasonable search within the meaningof the Fourth Amendment where it surreptitiously employed anelectronic device to obtain information that it could not haveobtained by observation from outside the curtilage of the house. Id.at 715.

14

case.”); Lee, 862 F. Supp. 2d 560, 571 (E.D. Ky. Mar. 22,2012) (rejecting application of the good-faith exceptionwhere “Jones expressly distinguished [Knotts] because[it] did not involve a physical trespass.”); Ortiz, 878 F.Supp. 2d 515, 541 (E.D. Pa. July 20, 2012) (“Knotts andKaro were decided almost twenty years before theinvestigation in this case, addressed differenttechnology in a world that used technology verydifferently, and specifically stated that they did notreach the question of the constitutionality of installinga tracking device on a person’s property to performsurveillance.”); State v. Mitchell, 685 Ariz. Adv. Rep. 7,27 (April 21, 2014) (Knotts does not meet the Davis testwhere it did not address the use of GPS technology northe trespass issue).

Filling out the wide spectrum of opinions are thosecases that subscribe to some combination of SupremeCourt precedent and neighboring circuit consensus onthe issue to provide the requisite “binding appellateprecedent” or those excusing governmental conduct inthe absence of any precedent prohibiting it. UnitedStates v. Rose, 914 F. Supp. 2d 15 (D. Mass., Sept. 14,2012) (“in relying on the consensus of lower courts anda common-sense reading of Supreme Court doctrine,the agents here acted in good faith…”); United States v.Figueroa-Cruz, 914 F. Supp. 2d 1250, 1269 (N.D. Ala.,2012) (“The actual issue is whether the exclusionaryrule is properly applied to the governmental conduct inthe absence of any indication in this circuit thatsomething more was required before a tracking devicecould be attached to a vehicle…”); United States v.Lopez, 951 F. Supp. 2d 657, 663 (D. Del. 2013).

15

In United States v. Martin, 712 F.3d 1080 (2013),the United States Court of Appeals for the SeventhCircuit held that Davis did not apply to the GPStracking of the defendant’s vehicle by Iowa police,located in the Eighth Circuit, before the defendant’sarrest in Illinois, because the Eighth Circuit did nothave binding appellate precedent expressly authorizingtheir actions at the time.

On the limited remand, the district courtconcluded that pursuant to Davis v. UnitedStates, 131 S.Ct. 2419, 180 L.Ed. 2d 285 (2011),suppression was not warranted because of the“officer’s good faith reliance on then-existingprecedent.” With respect, we find that to be anunwarranted expansion of the Supreme Court’sdecision in Davis, and not one that we shouldadopt in the present case. Davis expanded thegood-faith rationale in United States v. Leon, 468U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984),only to a “search [conducted] in objectivelyreasonable reliance on binding appellateprecedent,” finding that this set of searches arenot subject to the exclusionary rule. See Davis,131 S. Ct. at 2434 (emphasis in original). AsJustice Sotomayor pointed out in her opinionconcurring in the judgment, Davis “d[id] notpresent the markedly different question whetherthe exclusionary rule applies when the lawgoverning the constitutionality of a particularsearch is unsettled.” The Supreme Court maydecide to expand Davis in the coming years, butuntil it does so, we are bound to continueapplying the traditional remedy of exclusionwhen the government seeks to introduce

16

evidence that is the “fruit” of an unconstitutionalsearch. We reject the government’s invitation toallow police officers to rely on a diffuse notion ofthe weight of authority around the country,especially where the amorphous opinion turnsout to be incorrect in the Supreme Court’s eyes.Here, as Martin points out in his supplementalbrief, there was no binding appellate precedentin the Eighth Circuit at the time that Iowa lawenforcement officials attached the GPS toMartin’s car.

Martin, 712 F.3d. at 1082. See also United States v.Robinson, 903 F. Supp. 2d 766, 783-84, (2012)(rejecting application of Davis good-faith exception andexplicitly agreeing with “the Ortiz line of cases” that“the holding in Davis extends only to ‘bindingprecedent.’”)

In two of the most recent appellate decisionsconcerning the proper application of Davis under thesecircumstances, two state appellate courts have alsoexplicitly rejected the notion that Knotts couldsomehow provide the “binding appellate precedent”needed to apply the Davis good-faith exception. InState v. Sullivan, 2014 Ohio 1443, 2014 Ohio App.LEXIS 1328 (Ohio Ct. App., Franklin County Apr. 3,2014), the court rejected application of the Davis good-faith exception in the context of warrantlessattachment and monitoring of a GPS device:

First, neither Knotts nor Karo involved aphysical trespass by the police onto the targetvehicle; rather, in both cases, the police placedthe beeper inside a container which was thenloaded into the target vehicle by the driver (with

17

the container owner’s permission). Second, therelatively unsophisticated beeper technology atissue in Knotts and Karo is significantlydifferent from the advanced technology utilizedin GPS tracking devices.

Sullivan, 2014 Ohio 1443 at 73.

In State v. Mitchell, 685 Ariz. Adv. Rep. 7 (Ariz. Ct.App. Apr. 21, 2014), the court acknowledged thecurrent split in authority regarding this issue andrejected any notion that Knotts alone could triggerapplication of the good-faith exception:

Jurisdictions are divided on how apposite theauthority must be in order for the good-faithexception to apply. In Kelly v. State, forexample, the Maryland Court of Appealsconcluded that Knotts was apposite authority forthe purposes of the good-faith exception in a caseinvolving the installation of a GPS device.(internal citations omitted).; see also UnitedStates v. Aguiar, 737 F.3d 251, 261-62, (2d Cir.2013) (concluding that Knotts’ de minimistreatment of the beeper’s installation made thecase sufficiently apposite on the trespass issue). On the other hand, in United States v. Sparks,although the First Circuit applied the good-faithexception to GPS installation and tracking, itdid not consider Knotts sufficiently apposite onthe installation issue. 711 F.3d 58, 63, 65 (1st

Cir. 2013).

Mitchell, 685 Ariz. Adv. Rep. at 27-28. The MitchellCourt went on to conclude that Knotts was notsufficiently apposite on the trespass question and could

18

not trigger application of the good-faith exception. Id.at 29.

The United States Court of Appeals for the SecondCircuit took the opposing view in United States v.Aguiar, 737 F.3d 251, 261-262 (2d Cir. 2013), holdingthat Knotts can serve as “binding appellate precedent”:

In the context of statutory interpretation,‘binding precedent’ refers to the precedent of thisCircuit and the Supreme Court. (internalcitations omitted). Prior to Jones, our Circuitlacked occasion to opine on the constitutionalityof using electronic tracking devices attached tovehicles, either of the beeper or GPS variety. However, the Supreme Court did have occasionto address the issue in both Knotts and Karo,and we find that at the time the GPS trackingdevice was applied to Aguiar’s car in January2009, law enforcement could reasonably rely onthat binding appellate precedent….Moreover, wefind the beeper technology used in Knottssufficiently similar to the GPS technologydeployed by the government here.

Aguiar, 737 F.3d at 261.

As further discussed below, the Maryland Court ofAppeals followed suit.

C. Review of the present case is well suited toaddress the split of authority.

The facts of this case provide this Court with anideal vehicle to clarify the meaning of the term“binding appellate precedent.” As conceded by theCourt of Appeals in its opinion, no governing law

19

existed in Maryland at the time of the searchauthorizing the specific police practice at issue here,placement and continuous tracking of GPS device on aperson’s private property. Kelly, 436 Md. at 426(“Petitioner is correct that no Maryland appellatedecision has held expressly that the attachment anduse of a GPS tracking device is permissible under theFourth Amendment.”). Nonetheless, the Court ofAppeals affirmed the lower court’s decision based onKnotts. Its legal analysis cast Knotts in the role playedso effectively by Belton in Davis. But the cases are notanalogous in this context and Knotts cannot provide theshelter that Belton provided to pre-Gant automobilesearches incident to arrest.6 The reason, as espousedrepeatedly by courts across the country, is very simple:Knotts did not address the legal issues presented inJones. Not only did this Court explicitly leave the dooropen on the continuous and extended 24-hoursurveillance that is the subject of this case and was thesubject in Jones, but it did not address theconstitutionality of the placement of the device. Asdiscussed above, this Court explicitly acknowledgedthis fact in Jones:

The Government contends that several of ourpost-Katz cases foreclose the conclusion that

6 See Caleb Mason, New Police Surveillance Technologies and theGood-Faith Exception, Nevada Law Journal (Vol. 13:60) (Fall 2012)(“In the GPS tracker scenario, there was no Belton ---No SupremeCourt case expressly stating that warrantless, exception-less GPStracking was permissible because it was not a search. There werefive circuits with bright-line holdings that installation andmonitoring was not a search. There were also three states withexpress holdings from their highest courts. That leaves six circuitsand forty-seven states with no caselaw expressly on point.”)

20

what occurred here constituted a search. Itrelied principally on two cases in which werejected Fourth Amendment challenges to“beepers,” electronic tracking devices thatrepresent another form of electronic monitoring. The first case, Knotts, upheld against FourthAmendment challenge the use of a “beeper” thathad been placed in a container of chloroform,allowing law enforcement to monitor the locationof the container. We said that there had been noinfringement of Knotts’ reasonable expectation ofprivacy since the information obtained – thelocation of the automobile carrying the containeron public roads, and the location of the off-loaded container in open fields near Knotts’cabin – had been voluntarily conveyed to thepublic. But, as we have discussed, the Katzreasonable-expectation-of-privacy test has beenadded to, not substituted for, the common-lawtrespassory test. The holding in Knottsaddressed only the former, since the latter wasnot at issue. The beeper had been placed in thecontainer before it came into Knott’s possessionwith the consent of the then-owner. Knotts didnot challenge the installation, and we specificallydeclined to consider its effect on the FourthAmendment analysis.

Jones, 132 S. Ct. 951-52. (emphasis added).

21

In his concurrence, Justice Alito applied the moretraditional Katz7 analysis and specifically distinguishedKnotts as applicable only to short-term monitoring:

The best we can do in this case is to applyexisting Fourth Amendment doctrine and to askwhether the use of GPS tracking in a particularcase involved a degree of intrusion that areasonable person would not have anticipated.

Under this approach, relatively short-termmonitoring of a person’s movements on publicstreets accords with expectations of privacy thatour society has recognized as reasonable. SeeKnotts, 460 U.S., at 281-282, 103 S.Ct. 1081, 75L. Ed. 2d 55. But the use of longer term GPSmonitoring investigations of most offensesimpinges on expectations of privacy. For suchoffenses, society’s expectation has been that lawenforcement agents and others would not - - andindeed, in the main, simply could not monitorand catalogue every single movement of anindividual’s car for a very long period. In thiscase, for four weeks, law enforcement agentstracked every movement that respondent madein the vehicle he was driving. We need notidentify with precision the point at which thetracking of this vehicle became a search, for theline was surely crossed before the 4-week mark. Other cases may present more difficultquestions. But where uncertainty exists withrespect to whether a certain period of GPS

7 Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576(1967).

22

surveillance is long enough to constitute a FourthAmendment search, the police may always seeka warrant.

Jones, 132 S.Ct. at 964. (emphasis added).

While the members of this Court could not agree asto why the government’s actions constituted a search,the Court was unanimous in its opinion that Knotts didnot address circumstances where officers directly placea GPS device on private property and monitor thatdevice over an extended period of time. Thegovernment specifically advanced the argument thatKnotts controlled the facts in Jones, and this Courtunanimously rejected it. Consequently, to hold, as theMaryland Court of Appeals did, that Knotts couldsomehow qualify as “binding appellate precedent”under Davis, as a case that “specifically authorized” thepolice practice in question in Jones, completelycontradicts one of the only points of unanimity in theJones opinions. See Mason, Caleb, New PoliceSurveillance Technologies and the Good FaithException, supra at 78 (It would be “unlikely” thatKnotts and Karo would be considered binding precedentfor installation and monitoring of a GPS device afterthe “emphatic” holding in Jones.)

CONCLUSION

The law of good-faith can be traced from good-faithreliance on a defective warrant issued by a magistratejudge, United States v. Leon, 486 U.S. 897, 906; 104S.Ct. 3405, 82 L.Ed.2d 677 (1984) to good-faith relianceon subsequently invalidated statutes, Illinois v. Krull,480 U.S. 340, 349-50, 107 S.Ct. 1160, 94 L.Ed.2d 364(1987); to good-faith reliance on inaccurate court

23

records, Arizona v. Evans, 514 U.S. 1, 14, 115 S.Ct.1185, 131 L.Ed.2d 34 (1995); and finally to good-faithreliance on erroneous records in a police database ofoutstanding warrants. Herring v. United States, 555U.S. 135, 145, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). In each of those instances, the application of theexclusionary rule has no real deterrent value becausethe errant conduct was that of the judge, thelegislature, the court staff, or those charged withmaintaining a database, not with the officers whoreasonably relied on that information in executing asearch. The same cannot be said where lawenforcement officers erroneously determine that caselaw that is neither binding nor directly on point issufficient to authorize conduct later determined toviolate the Fourth Amendment. This is why this Courtso carefully chose its language in Davis, allowingapplication of the good-faith exception only wherebinding appellate precedent “specifically authorize[d]a particular police practice.” Davis, 131 S.Ct. at 2429.

A police officer’s role is law enforcement, not legalinterpretation, and a broad reading of Davis, such asthe one adopted by the Maryland Court of Appeals inthis case, encourages officers to push the limits ofestablished constitutional boundaries where the statusof the law is unclear. Under these circumstances, theexclusionary rule retains its deterrent value inprotecting constitutional freedoms from policeoverreaching. The Eleventh Circuit in Davis, affirmedby this Court, was particularly wary of this dangerwhen it stressed the importance of clear andunambiguous precedent:

24

We stress, however, that our precedent on agiven point must be unequivocal before we willsuspend the exclusionary rule’s operation. Wehave not forgotten the importance of the“incentive to err on the side of constitutionalbehavior,” and we do not mean to encouragepolice to adopt a “let’s-wait-until-it’s-decidedapproach” to “unsettled” questions of FourthAmendment law.

United States v. Davis, 598 F.3d 1259, 1266 (11th Cir.2010).

In short, the fears articulated by Justice Breyer inhis dissent in Davis concerning its susceptibility todivergent interpretations and the use of the majorityopinion to undermine the exclusionary rule have beenrealized. See Davis, 131 S.Ct. at 2436-2440. Courtsacross the country are split as to how to properly applyDavis and, at this point, it is clear that guidance fromthis Court concerning the correct interpretation andapplication of the good-faith exception created in Davisis necessary.

25

Respectfully Submitted,

Paul B. DeWolfe Public Defender

Juan P. Reyes Counsel of Record Assistant Public DefenderOffice of the Public DefenderAppellate Division6 Saint Paul StreetSuite 1302Baltimore, MD 21202(410) 767-4284jreyes@opd.state.md.us

Counsel for Petitioner

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the Court of Appeals ofMaryland(December 23, 2013) . . . . . . . . . . App. 1

Appendix B Opinion in the Court of SpecialAppeals of Maryland(November 27, 2012) . . . . . . . . . App. 24

Appendix C Excerpts of Official Transcript ofProceedings, Motion to Suppress inthe Circuit Court for Howard County,Maryland(November 19, 2010) . . . . . . . . . App. 64

Appendix D Excerpts of Official Transcript ofProceedings, Motions Hearing in theCircuit Court for Anne ArundelCounty, Maryland(October 15, 2010) . . . . . . . . . . . App. 84

App. 1

APPENDIX A

IN THE COURT OF APPEALSOF MARYLAND

No. 26

September Term, 2013

[Filed December 23, 2013] ______________________________WESLEY TORRANCE KELLY )

)v. )

)STATE OF MARYLAND )_____________________________ )

Barbera, C.J., Harrell Battaglia Greene Adkins McDonald Raker, Irma S. (Retired, Specially Assigned), JJ.

Opinion by Barbera, C.J.

For eleven days in April 2010, police conductedtracking of Petitioner Wesley Torrance Kelly’s vehicle,using a global positioning system (“GPS”) deviceattached to the vehicle’s exterior. As a result of thatGPS tracking, officers made observations and collectedinformation they used to obtain warrants to searchPetitioner’s home, a separate residence in downtown

App. 2

Baltimore, Petitioner’s vehicle, and three pawn shops.The State sought to use evidence obtained duringexecution of the warrants in separate prosecutions ofPetitioner for charges arising out of burglaries thatoccurred in Howard County and Anne Arundel County.

Petitioner filed pretrial motions in both the HowardCounty and the Anne Arundel County Circuit Courts tosuppress all evidence obtained as the result of what theofficers learned through their tracking of his vehicle,including evidence obtained pursuant to the executionof the search warrants. Petitioner argued that thetracking of his vehicle’s movements, as well as theinitial placement of the tracking device, violated theFourth Amendment, thereby requiring suppression ofall evidence resulting directly, or derived, from thetracking. In both cases, the motions were denied.Petitioner was convicted of various charges arising outof the two cases. He appealed both judgments ofconviction.

During the pendency of the appeal of thoseconvictions in the Court of Special Appeals, theSupreme Court of the United States decided the case ofUnited States v. Jones. 132 S. Ct. 945 (2012). In adecision that many believed to be a break from thelongstanding test for determining when police conductis deemed a “search” for Fourth Amendment purposes,1

1 For the 45 years preceding Jones, the reasonable expectation ofprivacy test, enunciated in Justice Harlan’s concurring opinion inKatz v. United States, 389 U.S. 347, 360 (1967), was thepredominant analysis courts employed when considering whethera search had taken place under the Fourth Amendment. In Katz,the Court “enlarged its then prevailing focus on property rights byannouncing that the reach of the Fourth Amendment does not

App. 3

the Supreme Court held in Jones that “theGovernment’s installation of a GPS device on a target’svehicle, and its use of that device to monitor thevehicle’s movements, constitutes a ‘search’” under theFourth Amendment. 132 S. Ct. at 949.

The Court of Special Appeals consolidated theappeals and, in a reported opinion, Kelly v. State, 208Md. App. 218 (2012), affirmed both judgments ofconviction. The Court recognized that the GPS trackingof Petitioner’s vehicle fell within the purview of thenew law announced in Jones and, pursuant to theholding of that case, was a search conducted inviolation of the Fourth Amendment. Kelly, 208 Md.App. at 243. The Court of Special Appeals reasonedthat then-applicable law in Maryland, namely UnitedStates v. Knotts, 460 U.S. 276 (1983), permitted thetracking of a vehicle on the public streets.2 Kelly, 208Md. App. at 248. From that legal premise, the Court ofSpecial Appeals further reasoned that, under Davis v.

‘turn upon the presence or absence of a physical intrusion.’” Jones,132 S. Ct. 945, 955 (2012) (Sotomayor, J. concurring). JusticeScalia’s opinion for the Court in Jones revived that common-lawtrespassory test, which, he explained, was augmented, notdisplaced, by the reasonable expectation of privacy test. 132 S. Ct.at 952.

2 As we shall see, the Supreme Court held in Knotts that policemonitoring of a signal put out by a beeper, which the policelawfully had placed on a container transported on the publicstreets, was neither a search nor a seizure within thecontemplation of the Fourth Amendment, because such monitoringdid not invade any legitimate expectation of privacy therespondent had in the movement of the vehicle on the publicstreets. 460 U.S. at 285.

App. 4

United States, 131 S. Ct. 2419, 2423-24 (2011), in whichthe Supreme Court held that “searches conducted inobjectively reasonable reliance on binding appellateprecedent are not subject to the exclusionary rule,”Petitioner was not entitled to suppression of theevidence obtained as the result of that unlawful search.Kelly, 208 Md. App. at 248.

For the reasons that follow, we affirm the judgmentof the Court of Special Appeals.

I.

The following facts were adduced at the separatesuppression hearings held in the Howard County andAnne Arundel County cases.3

Suspecting Petitioner’s involvement in a series ofcommercial burglaries, officers of the Howard CountyPolice Department Property Crimes Section requestedthat officers of the Repeat Offender ProactiveEnforcement (“ROPE”) Section assist in conductingsurveillance of Petitioner. In response to this request,the ROPE Section began conducting covert visualsurveillance of Petitioner. Additionally, on April 2,2010, Sergeant Duane Pierce attached a GPS trackingdevice to Petitioner’s Chevrolet Trailblazer, which atthe time was parked down the road from Petitioner’shome at 1118 Harwall Road, a public street inBaltimore County.

3 In material respect, the evidence adduced at each of thesehearings was identical.

App. 5

Sergeant Pierce explained the mechanics of the GPStracking device the ROPE Section used. He describedthe GPS tracker as

an electronic device that is much like aneveryday cell phone, it has a cell phonecomponent and it also has a GPS component init, and those two devices communicate with bothsatellites and the cellular portion to determinewhere that unit is and it will give you a latitudeand longitude [of] . . . where that unit iscurrently at.

Sergeant Pierce referred to the device as “self-contained,” meaning that it is powered by a battery anddoes not in any way interfere with the operation of thevehicle. The device is attached to the frame of a vehicleby magnets. It is activated prior to installation and,once activated, stores location data to its own internalmemory.

Officers may access this historical data and mayalso activate what Sergeant Pierce referred to as “live-tracking,” which displays the tracker’s location in realtime.4 As “livetracking” drains the device’s batterymore rapidly than regular operation, Sergeant Piercetestified that he only activated this mode when officersneeded Petitioner’s close-to-present location. Thetracking device may be programmed to send alerts to adesignated cell phone. Sergeant Pierce explained thathe initially programmed the device to send an alert tohis cell phone whenever Petitioner’s vehicle approached

4 Sergeant Pierce clarified that the tracking device displays itslocation on a two- to five-second delay.

App. 6

Howard County.5 Later, he re-programmed the deviceto send an alert to his cell phone whenever Petitioner’svehicle went into motion. From the time of itsinstallation on April 2 until April 5, 2010, the trackingdevice recorded to its internal memory the locations ofPetitioner’s vehicle. During that period, detectives didnot access that historical data nor did they engage in“live-tracking.”

On April 5, 2010, at approximately 4:00 a.m., theGPS tracking device notified Sergeant Pierce thatPetitioner’s vehicle had entered Howard County.Sergeant Pierce dispatched the ROPE detectives to theapproximate location of Petitioner’s vehicle andactivated “live-tracking” to update them on thevehicle’s movements. Advised that the vehicle was inthe area of Riverwood Drive and Old Columbia Road,Detective James Laffin was the first officer to catchsight of the vehicle. Detective Laffin did not follow thevehicle; instead, he stopped to check the businesses inthe area for signs of burglary. The other respondingofficers followed Petitioner’s vehicle until it enteredMontgomery County. Detective Darshan Luckeyobserved that a man matching Petitioner’s descriptionwas driving the vehicle.

At the site of Advanced Programs, Inc. (“API”), 7125Riverwood Road in Columbia, Detective Laffin notedthat the building’s entrance appeared to be“unsecured,” with pry marks and damage to the door.He called for officers to respond and investigate the

5 Sergeant Pierce clarified that the tracking device has thecapability to recognize a box approximating the shape of thecounty, not the precise boundaries of the jurisdiction.

App. 7

apparent burglary. Detective Matthew Mergenthalermet with an employee of API and obtained a list, withserial numbers, of all inventory that was missing fromthe building. That list included two Hewlett Packardprinters, two computer monitors, and four boxescontaining hard drives, keyboards, and computermouses.

Detectives had to use the GPS device to re-locatethe vehicle later that morning. They learned that thevehicle was parked in the parking lot of Carroll ManorElementary School, which Detectives Luckey andLaffin observed upon arrival to be a construction sitewhere Petitioner was working. Two hours after theirarrival, the detectives approached the vehicle to seewhat was inside of it. Detective Luckey observed“several large boxes” in the back and a HewlettPackard printer manual on the front passenger seat.Shortly thereafter, the detectives observed Petitionerapproach the vehicle. He removed a box from thevehicle, placed “an object that appeared to be acomputer monitor” in the box, and replaced the box inthe vehicle. He then sat in the vehicle driver’s seat for20 minutes before returning to work.

In the afternoon, Petitioner left the schoolconstruction site in his vehicle, and the officersfollowed. They followed him first to his home onHarwall Road. They then followed him to a residenceon Saratoga Street in Baltimore City, which he enteredwith a key.6 He came out of that residence carryingtwo “computer boxes,” which he placed in his vehicle.The officers next followed him to the intersection of

6 That location was, apparently, Petitioner’s brother’s residence.

App. 8

Hollins and Stockton Streets in Baltimore City, wherethey observed him exit his vehicle to speak for a fewmoments with a group of people.

The officers then followed Petitioner to the GoldTrading Center Pawn Shop in Baltimore City. Theyobserved him park in front of the shop, remove a “bigbox” from his vehicle, and enter the shop. Theyobserved him walk between the shop and the vehicletwo times, carrying boxes of different sizes back andforth. Officers next followed Petitioner to Shine Corner,Inc., another pawn shop in Baltimore City. Theyobserved him enter the shop carrying three “large . . .boxes.” When he emerged from the shop, the officersfollowed Petitioner back to the Saratoga Streetresidence. They observed him carry “two large HewlettPackard computer boxes, one small box that was openon the top and one long skinny type of box” inside theresidence. The officers next followed him to theEdmondson Village Pawn Shop in Baltimore City. Theyobserved Petitioner enter the shop carrying“paperwork.” When he emerged from the shop, theofficers followed Petitioner back to his home onHarwall Road, then terminated visual surveillance forthe day.

On April 6, 2010, at approximately 4:30 a.m., theGPS tracking device notified Sergeant Pierce thatPetitioner’s vehicle was moving. Sergeant Pierceinformed ROPE Section detectives that Petitioner’svehicle was traveling on Interstate 170 toward HowardCounty, and the officers caught up to the vehicle, whichthey followed to the Westview Promenade ShoppingCenter in Frederick. Detective Luckey observedPetitioner walking around one of the buildings,

App. 9

carrying a plastic bag. Detective Laffin exited hisvehicle to follow Petitioner on foot, but when Petitionersaw the detective he returned to his vehicle and droveaway.

The detectives followed Petitioner to a commercialbusiness park on Pegasus Court in Frederick, wherethey observed him stop his vehicle outside multipleclosed businesses. Detective Laffin observed Petitionerwalk from one of the buildings to his vehicle and driveaway. Detectives Luckey and Kuczynski followedPetitioner while Detectives David Abuelhawa andLaffin stayed behind to check businesses for signs ofburglary. Noting two attempted break-ins, they calledthe Frederick County Sheriff’s Department toinvestigate.

Sergeant Pierce testified that, between April 6 and12, 2010, detectives may have checked the voltage onthe tracking device to ensure that the device’s batterywas not drained, but they did not access historical datanor activate “live-tracking” for the purpose of locatingPetitioner. On April 12, 2010, at approximately 4:12a.m., the GPS tracking device notified Sergeant Piercethat Petitioner’s vehicle was moving. He informed thedetectives that the vehicle was traveling on Interstate695 toward Glen Burnie, and they attempted to catchup to the vehicle. Sergeant Pierce informed thedetectives that the vehicle was located in the parkinglot of the Chesapeake Square Shopping Center, and thedetectives proceeded to the shopping center parking lot,where they observed the vehicle parked in front of theCasual Male XL store. Detective Abuelhawa exited hisvehicle to follow Petitioner on foot. In doing so,Detective Abuelhawa noted that the front door to the

App. 10

Casual Male XL store had been “smashed out” andobserved Petitioner enter the store with an emptyplastic bag and exit the store with the bag full ofclothing.

Detective Abuelhawa instructed the other detectivesin the parking lot to “do a vehicle take down.” Theother detectives pulled their vehicles besidePetitioner’s, but he quickly got into his vehicle anddrove off. Observing that the rear hatch of Petitioner’svehicle was open and that neither headlights nortaillights were illuminated, Detective Luckeyattempted to stop Petitioner’s vehicle, but Petitioner’svehicle sped up in response. The ROPE Sectiondetectives pursued the vehicle from Ritchie Highwayinto Baltimore City. When the officers lost sight ofPetitioner’s vehicle, Sergeant Pierce informed them ofits location using GPS, twice, before the officers foundthe vehicle, abandoned, in an alley.

Property Crimes Section detectives prepared searchwarrant applications for Petitioner’s home, theSaratoga Street residence, Petitioner’s vehicle, and thethree pawn shops. ROPE Section officers conductedvisual surveillance of Petitioner’s home while WarrantSection officers conducted visual surveillance of theSaratoga Street residence. Warrant Section officerstook Petitioner into custody that afternoon as he leftthe Saratoga Street residence.

Upon execution of the warrants, officers recoveredfrom Petitioner’s vehicle a shirt from Casual Male XL.From Gold Trading Center, officers seized a HewlettPackard printer and a computer monitor. From theSaratoga Street residence, officers seized computerunits. The serial numbers of these items matched the

App. 11

serial numbers of the items API reported as missing toDetective Mergenthaler.7

Petitioner was charged in the Circuit Court forHoward County with second-degree burglary, theft,and malicious destruction of property in connectionwith the burglary of Advanced Programs and in theCircuit Court for Anne Arundel County with second-degree burglary, theft, and malicious destruction ofproperty in connection with the Casual Male XLburglary. In both cases, he filed motions to suppress allevidence obtained as the result of the GPS tracking.

The Anne Arundel County Proceedings

On October 15, 2010, the Circuit Court for AnneArundel County held a hearing on Petitioner’s motionto suppress. Counsel for Petitioner argued that theofficers’ act of installing the GPS device on the exteriorof Petitioner’s vehicle itself amounted to a search.Further, he argued, officers’ subsequent tracking of thevehicle using the device was also a search. Although“[a] person traveling in an automobile on publicthoroughfares has no reasonable expectation of privacyin his movements from one place to another,” Knotts,460 U.S. at 281, Petitioner’s counsel argued that the“cumulative effect” of observing public movements overthe long term is “greater than the parts.” He arguedthat the GPS tracking was so “intertwined” with thevisual surveillance that Petitioner was entitled not onlyto suppression of any GPS data the State might seek to

7 All items that the officers seized from Petitioner’s residence weremerely “indicia of occupancy.” They recovered nothing from theEdmondson Village Pawn Shop or Shine Corner, Inc.

App. 12

introduce, but also the observations the detectivesmade as a result of their use of the GPS technology, aswell as the evidence seized pursuant to the six searchwarrants. The Circuit Court denied the motion tosuppress, explaining its ruling:

I just need something. I need some case, somelaw, something that says it would be illegal forthe police under these circumstances to put theGPS unit on the truck. And I feel like withoutthat I can’t take any next step toward theconclusion that you want to reach, although Icertainly sympathize with your situation. Itseems like just sort of as an average personwould really be—feel that that’s [a] personal[affront] you might say to have something placedon the car without their knowledge and forsomeone to be aware of their movements insociety seems, you know, a little suspect, butwithout having any law to say that that’s thecase, and my understanding is there is nowarrant requirement for the GPS, so if there’sno warrant requirement and they didn’t have awarrant I don’t see a problem under current law. . . .

On January 4, 2011, Petitioner pled not guilty tosecond-degree burglary but waived his right to a jurytrial and was convicted on an agreed upon statement offacts. The Circuit Court sentenced Petitioner to tenyears’ incarceration.

The Howard County Proceedings

On November 19, 2010, the Circuit Court forHoward County held a hearing on Petitioner’s motion

App. 13

to suppress. The State argued that Petitioner had noreasonable expectation of privacy in his movements onpublic streets and that the “addition of technology toassist” officers in their observations of thosemovements was insignificant to the analysis; thus,there had been no search. Counsel for Petitioner8

acknowledged the clear holding of Knotts, but shecontended that the expectation of privacy “changes”depending upon the duration of the surveillance; aperson would not, she asserted, “expect the public . . .to notice [his] movements” for that long a period, “toput together the evidence of the behavior, the patterns,the habits.” Thus, counsel argued, officers’ long-termsurveillance amounted to a search, and Petitioner wasentitled to “suppression of all items and all informationreceived as a result of the use of” the GPS technology.The Circuit Court denied the motion to suppress,explaining its ruling:

I believe that the Stone [v. State, 178 Md. App.428 (2008),] case is the Maryland case that’s onpoint and that is supported by U.S. v. Knotts, forthe proposition that the first question is, is therea reasonable expectation of privacy that societyis prepared to recognize under the Katz test.And Stone stands for the proposition that aperson traveling in an automobile on a publicthoroughfare has no reasonable expectation ofprivacy in his movements from one place toanother. And that by driving on the public roadsone voluntarily conveys, to anyone wishing tolook, his progress and his route and therefore

8 Petitioner was represented by different attorneys in the twocases.

App. 14

there’s no reasonable expectation of privacy andtherefore there’s no Fourth Amendmentimplications. It is not a search under the FourthAmendment to install this device magneticallyto the bottom frame of the automobile.

On December 1, 2010, after a two-day trial,Petitioner was convicted by a jury of theft. The CircuitCourt sentenced him to ten years’ incarceration.

The Appeal

Petitioner appealed his convictions to the Court ofSpecial Appeals, where the cases were consolidated forthe purpose of appeal. Relying on the good-faithexception to the exclusionary rule announced in Davis,131 S. Ct. at 2423-24 (“searches conducted inobjectively reasonable reliance on binding appellateprecedent are not subject to the exclusionary rule”), theCourt of Special Appeals affirmed the suppressioncourts’ rulings. Kelly, 208 Md. App. at 248. Ourbrethren on the intermediate appellate court, relyingon Davis and a decision of this Court applying Davis,Briscoe v. State, 422 Md. 384 (2011), concluded thatofficers could reasonably rely on “the rationale ofKnotts, i.e., that the owners of vehicles did not have areasonable expectation of privacy in their movement ona public highway,” to authorize warrantless GPStracking. Kelly, 208 Md. App. at 248.

We granted a petition for a writ of certiorari toanswer the following questions, as Petitioner has posedthem:

1. Did the trial courts err in denyingPetitioner’s motions to suppress evidenceobtained as a result of the warrantless

App. 15

placement and subsequent tracking of aglobal positioning system (“GPS”) device onPetitioner’s vehicle over a period of 11 days?

2. Did the Court of Special Appeals incorrectlyinterpret and apply the Supreme Court’sholding in Davis v. United States, ___ U.S.___, 131 S. Ct. 2419, 180 L.Ed.2d 285 (2011)and this Court’s holding in Briscoe v. State,422 Md. 384, 30 A.3d 870 (2011), when itheld that the good faith exception to theexclusionary rule applied to thecircumstances in the case at bar where no“binding appellate precedent” existed thatauthorized the placement and continuoustracking of a GPS device for the purposes ofestablishing probable cause to arrest?

II.

In reviewing the rulings of the suppression courts,we rely solely upon the record developed at thesuppression hearings. Lee v. State, 418 Md. 136, 148(2011). We view the evidence and inferences that maybe drawn therefrom in the light most favorable to theparty who prevails on the motion, here, the State. Id.We defer to the factual findings of the suppressioncourts, “and uphold them unless they are shown to beclearly erroneous.” Id. (quoting State v. Luckett, 413Md. 360, 375 n.3 (2010)). We, however, make anindependent appraisal of the constitutionality of asearch, “by reviewing the relevant law and applying itto the facts and circumstances of this case.” Lee, 418Md. at 148-49 (quoting Luckett, 413 Md. at 375 n.3).

App. 16

The Fourth Amendment, applied to the statesthrough the Fourteenth Amendment, protects againstunreasonable searches and seizures. See, e.g., Lewis v.State, 398 Md. 349, 360-61 (2007) (citations omitted).Searches conducted without a warrant arepresumptively unreasonable. Henderson v. State, 416Md. 125, 148 (2010). The remedy for an unlawfulsearch is the suppression of evidence obtained as aresult of that search. Mapp v. Ohio, 367 U.S. 643, 655(1961). This remedy is known as the “exclusionaryrule.”

Courts, however, do not redress every FourthAmendment violation by applying the exclusionaryrule. United States v. Calandra, 414 U.S. 338, 348(1974). This is because the text of the FourthAmendment does not provide for the suppression ofevidence. Davis, 131 S. Ct. at 2426; Arizona v. Evans,514 U.S. 1, 10 (1995). Suppression is not an individualright, but rather a judicial creation with the expresspurpose of deterring future misconduct on the part oflaw enforcement officers. Herring v. United States, 555U.S. 135, 139-40, 141 (2009). Accordingly, courts willnot suppress evidence where law enforcement officersact with a reasonable good-faith belief that theirconduct is lawful. United States v. Leon, 468 U.S. 897,909 (1984). This principle is known as the “good-faithexception” to the exclusionary rule. The good-faithexception applies to a variety of situations. See, e.g.,Arizona v. Evans, 514 U.S. at 4, 14 (applying the good-faith exception to evidence seized pursuant to an arresteffected in reliance on outdated computer record ofwarrant where incorrect information resulted fromclerical error on the part of court employee); see alsoHerring, 555 U.S. at 140, 144 (extending application of

App. 17

the Evans exception to error on the part of policeemployee); Illinois v. Krull, 480 U.S. 340, 343, 345, 349(1987) (applying the exception to evidence seized insearch conducted in good-faith reliance on a statuteauthorizing warrantless administrative searches, laterfound unconstitutional).

If, as occurred during the pendency of the appeal inthe present case, the Supreme Court announces a newrule of criminal procedure, then that new rule applies“to all cases, state or federal, pending on direct reviewor not yet final.” Griffith v. Kentucky, 479 U.S. 314, 328(1987). Thus, absent application of the good-faithexception to the exclusionary rule, criminal defendantsare permitted, on appeal, to “invoke . . . newlyannounced rule[s] of substantive Fourth Amendmentlaw as a basis for seeking relief.” Davis, 131 S. Ct. at2431. The Supreme Court has made plain by itsholding in Davis that “searches conducted in objectivelyreasonable reliance on binding appellate precedent arenot subject to the exclusionary rule.” 131 S. Ct. at 2423-24. See also Briscoe, 422 Md. 384, 391 (applying Davis).

The State does not disagree with Petitioner that, byoperation of the Supreme Court’s recent Jones decision,the warrantless tracking of Petitioner’s vehicle violatedthe Fourth Amendment. Petitioner and the State partcompany, however, over the question of whethersuppression of the fruits of that tracking is required; inother words, whether, as in Davis and Briscoe, theofficers who conducted the GPS tracking of Petitioner’svehicle reasonably relied on then-binding precedent inMaryland.

Petitioner argues that the Davis good-faith ruledoes not apply in this case because, here, unlike in

App. 18

Briscoe, there is no binding, pre-Jones precedent inMaryland permitting warrantless tracking of publicvehicular travel. The State counters that the Davisgood-faith exception does apply, because bindingprecedent in Maryland at the time of the search,namely Stone, 178 Md. App. 428, specificallyauthorized the GPS tracking conducted in the presentcase. For reasons we shall explain, we agree with theState that there was binding appellate precedent inMaryland authorizing GPS tracking at the time officersinstalled the device on Petitioner’s vehicle, but we findthat authority in the Supreme Court’s Knotts case, onwhich the Court of Special Appeals relied in Stone.

III.

We accept at the outset of our analysis the State’sconcession that, under Jones, the Howard Countydetectives’ attachment and use of the GPS device inthis case is a search under the Fourth Amendment.Jones, 132 S. Ct. 945, 949 (“the Government’sinstallation of a GPS device on a target’s vehicle, andits use of that device to monitor the vehicle’smovements, constitutes a ‘search’”). By retrospectiveapplication of Jones, therefore, the tracking ofPetitioner’s vehicle without a proper warrant violatedthe Fourth Amendment. Our task is to examineMaryland law pre-Jones to determine whether therewas binding appellate precedent in Marylandauthorizing the officers to attach the GPS device toPetitioner’s vehicle and track the vehicle with thistechnology without a warrant. If so, then, under Davis

App. 19

and Briscoe, the evidence obtained as a result of thistracking is not subject to the exclusionary rule.9

The parties’ dispute focuses upon what may serve as“binding appellate precedent,” as the term was used inDavis. In Briscoe, we drew the following rule fromDavis: “operation of the exclusionary rule is suspendedonly when the evidence seized was the result of asearch that, when conducted, was a ‘police practice’specifically authorized by the jurisdiction’s precedentin which the officer operates.” 422 Md. at 406.Petitioner considers this Court to have adopted a“narrow” interpretation of Davis by making thisstatement in Briscoe.

For support of that contention, Petitioner seizesupon the phrase “specifically authorized” and arguesthat this language requires the precedent on whichofficers rely to approve precisely the action they wishto take, and the technology they plan to use, for thesearch to fall under the ambit of Davis. Petitionerfurther maintains that a “broad” interpretation ofDavis would encourage law enforcement officers to“push the limits of established constitutionalboundaries where the status of the law is unclear.”Petitioner points to Justice Sotomayor’s concurringopinion in Davis, in which she cautioned againstapplying the Davis good-faith exception in cases where

9 The State argues that, in the event this Court holds that theDavis good-faith exception does not apply in this case, suppressionis still inappropriate because “the evidence admitted against[Petitioner] was sufficiently attenuated from an unlawful use ofthe GPS device.” Wong Sun v. United States, 371 U.S. 471, 487-88(1963). In light of our conclusion on the question of theapplicability of Davis, we need not address this argument.

App. 20

officers rely on unsettled law. 131 S. Ct. at 2435. Healso cites cases in which courts have rejected Davisarguments where there was an absence of precedent onthe specific practice of GPS tracking, e.g., United Statesv. Martin, 712 F.3d 1080, 1082 (7th Cir. 2013), orwhere law enforcement officers relied on “persuasive orwell-reasoned precedent, . . . a growing trend indecisions, or . . . situations in which a plurality,majority, or even overwhelming majority of circuitsagree,” United States v. Ortiz, 878 F.Supp.2d 515, 539(E.D. Pa. 2012).

As it is the State’s position that there does existbinding appellate authority in Maryland particularlyallowing the use of GPS tracking, the State does notdevote much of its argument to delineating the boundsof the Supreme Court’s holding in Davis. The Stateargues, however, that adopting Petitioner’sinterpretation of Davis would undermine the purposeof the good-faith exception to the exclusionary rule by“requir[ing] too much of officers in the field” whoshould not be expected to concern themselves with“byzantine nuances of Fourth Amendment doctrine.”

The State has the better part of the argument. Wedid not adopt in Briscoe a more narrow rule than thatundergirding the Davis decision itself—the policepractice at issue must have been specifically authorizedby the jurisdiction’s precedent. Maryland courts, ofcourse, must and do follow the precedent established bythe caselaw of the United States Supreme Court, inresolving Fourth Amendment claims. At the time of thesearch at issue in this case, Knotts provided theprevailing Fourth Amendment law, binding onMaryland, that allowed the use of a mechanical device,

App. 21

attached to the exterior of a vehicle, to track thatvehicle’s movements in public.

In Knotts, the Court employed a reasonableexpectation of privacy analysis, see Katz v. UnitedStates, 389 U.S. 347, 360 (1967), to determine whetherofficers had conducted a search under the FourthAmendment, by attaching a beeper to a container ofchloroform in order to track the vehicle in which thecontainer had been placed. Knotts, 460 U.S. at 277,281. The Court held that there had been no searchunder the Fourth Amendment, as “[a] person travelingin an automobile on public thoroughfares has noreasonable expectation of privacy in his movementsfrom one place to another.” Id. at 281, 285. The Courtcontinued, a person traveling on public streets“voluntarily convey[s] to anyone who want[s] to lookthe fact that he [is] traveling over particular roads in aparticular direction, the fact of whatever stops hema[kes], and the fact of his final destination when heexit[s] from public roads onto private property.” Id. at281-82.

No decision of this Court or the Court of SpecialAppeals, since the Supreme Court’s issuance of Knottsand throughout the many years leading up to theSupreme Court’s issuance of Jones, has limited theapplication of Knotts to the use of beepers, or, morerecently, extended its application to the use of GPSdevices, to track vehicular movements in public.Indeed, the Court of Special Appeals, in Stone, reliedexplicitly on Knotts in stating that police tracking of avehicle’s travels using GPS technology “could not be aFourth Amendment violation.” 178 Md. App. at 448.

App. 22

Petitioner asserts that neither Knotts nor Stone canbe read to authorize specifically the use of GPStracking, as those cases did not address theconstitutionality of the installation of the GPS trackingdevice or of “continuous tracking over an extendedperiod of time to gather evidence of criminality.” Weagree with, and therefore adopt, as our answer to thatconcern, the Court of Special Appeals’s statement that“binding precedent does not require that there be aprior appellate case directly on point, i.e., factually thesame as the police conduct in question.” Kelly, 208 Md.App. at 248.

At the time of the search at issue in this case,without the benefit of Jones, we would have appliedKnotts—which, as the Court of Special Appeals foundin Stone, was at the time, and had been since 1983,Maryland law—to resolve the question of theconstitutionality of GPS tracking of a vehicle on publicroads. We can expect no more from law enforcementofficers. Petitioner is correct that no Marylandappellate decision has held expressly that theattachment and use of a GPS tracking device ispermissible under the Fourth Amendment.Nevertheless, just as the Court of Special Appealsapplied Knotts, pre-Jones, when considering therelevance of testimony on the subject of GPS trackingof a vehicle on public streets in Stone, so too couldpolice officers reasonably rely on Knotts, pre-Jones, inaffixing a GPS tracking device to the vehicle of aperson under their investigation for the purpose ofconducting surveillance.

We therefore hold that, before Jones, bindingappellate precedent in Maryland, namely Knotts,

App. 23

authorized the GPS tracking of a vehicle on publicroads. The Howard County detectives acted inobjectively reasonable reliance on that authority whenthey conducted their GPS tracking of Petitioner’svehicle, and the Davis good-faith exception to theexclusionary rule applies. Petitioner is not entitled tothe suppression of evidence. Consequently, we affirmthe judgment of the Court of Special Appeals.

JUDGMENT OF THE COURT OFSPECIAL APPEALS AFFIRMED;COSTS TO BE PAID BYPETITIONER.

App. 24

APPENDIX B

REPORTEDIN THE COURT OF SPECIAL APPEALS

OF MARYLAND

Nos. 2479 & 2679

September Term, 2010

[Filed November 27, 2012] ______________________________WESLEY TORRANCE KELLY )

)v. )

)STATE OF MARYLAND )_____________________________ )

Woodward, Watts,Eyler, James R.

(Retired, specially assigned),

JJ.

Opinion by Eyler, James R., J.

This is an appeal by Wesley Torrance Kelly,appellant, from convictions in the Circuit Court forHoward County and the Circuit Court for AnneArundel County. The cases were consolidated onappeal.

In Anne Arundel County, the court convictedappellant of burglary in the second degree, committed

App. 25

on April 12, 2010, and sentenced him to ten-years’imprisonment. In Howard County, a jury convictedappellant of theft, committed on April 5, 2010, and thecourt sentenced him to ten-years’ imprisonment.

In both cases, appellant contends the courts erred indenying his motions to suppress evidence allegedlyobtained as a result of a Global Positioning System(GPS) device placed on his vehicle on April 2, 2010, bypolice officers without a warrant. On January 23, 2012,the Supreme Court decided United States v. Jones, 132S. Ct. 945 (2012), holding that placement of a GPSdevice on a vehicle located on a public thoroughfareconstitutes a search. Jones applies to the cases beforeus; nevertheless, based on the good faith exception tothe exclusionary rule, we shall affirm the judgments.

Factual and Procedural Background

On December 1, 2010, appellant was convicted inAnne Arundel County. On January 4, 2011, appellantwas convicted in Howard County. After appeal andbriefing in this Court, the parties requested that thecases be stayed pending the Supreme Court’s decisionin Jones. This Court granted the request. After theSupreme Court’s decision was issued on January 23,2012, the parties filed new briefs.

The issue in both cases is the denial of a motion tosuppress evidence. Consequently, the material evidenceis that introduced at the hearings on the motions tosuppress.

In summary, a series of commercial burglariesoccurred in Howard County on February 22, 2010,February 24, 2010, March 2, 2010, March 29, 2010,April 5, 2010, and in Anne Arundel County on April 12,

App. 26

2010. Howard County police officers beganinvestigating the incidents on February 22, 2010. Thefirst burglary was of a dental office from which, interalia, a signed blank bank check was taken. OnFebruary 27, 2010, the check was cashed, with thename of a payee, Nicole Cromwell, and an amounthaving been added. After reviewing surveillance tapeat the bank where the check was cashed, police officersidentified Ms. Cromwell through a computer check.Police officers also learned from the tape that Ms.Cromwell had been dropped off at the bank by a greenChevrolet Trailblazer. On March 5, 2010, officersobtained an arrest warrant for Ms. Cromwell. OnMarch 9, officers arrested Ms. Cromwell. Shecooperated and identified a person named “Tony” as theperson who gave her the check. She also provided aresidence address for Tony, an apartment at 3706 W.Saratoga Street. Police officers conducted surveillanceof that residence, noted the presence of the Trailblazer,conducted a computer check of the Trailblazer, anddetermined it was owned by appellant. Police officersobtained a photograph of appellant and showed it toMs. Cromwell, who identified appellant as Tony, theperson who gave her the check.

Subsequently, on April 2, 2010, police officers placeda GPS tracking device on the exterior of appellant’sTrailblazer. The device was on the vehicle from April 2through April 12. The device tracked and recordedmovement of the vehicle, producing six hundred pagesof data. Police officers did not monitor the device at alltimes but used it to locate appellant on at least threeoccasions. Based on the information obtained prior toplacement of the device and additional informationobtained after placement of the device, police officers,

App. 27

on April 12, 2010, obtained search warrants forappellant’s Trailblazer, two residences, and three pawnshops. A search of those locations producedincriminating evidence.

A more detailed recitation follows.

Anne Arundel County Suppression Hearing

On October 15, 2010, the Anne Arundel Countycircuit court held a hearing. Sergeant Duane Pierce, adetective with the Howard County Police Department,testified that, sometime prior to April 2, 2010, hebecame involved in the surveillance of appellantbecause appellant was a suspect in commercialburglaries. Sergeant Pierce determined that appellantlived at 1118 Harwall Road in Gwynn Oak. On April 2,2010, Sergeant Pierce attached, with a magnet, a GPSdevice to the exterior of appellant’s vehicle. At thattime, the vehicle was located on a public street, parkednear appellant’s residence. Sergeant Pierce stated thedevice was basically “an ordinary cell phone” with GPSand cellular components. In addition to monitoring thesignal from the GPS device, officers conducted visualsurveillance of appellant’s vehicle at various times, thefirst being on April 5. On April 12, Sergeant Pierce wasmonitoring the GPS device, and he was alerted thatappellant’s vehicle was moving. Sergeant Piercedirected units to the location of the vehicle as revealedby the device, which was the Chesapeake SquareShopping Center, on Ritchie Highway, south of theInterstate 695 Beltway.

Corporal David Abuelhawa, a detective with theHoward County Police Department, testified that hewas involved in visual surveillance of appellant’s

App. 28

vehicle on April 5, 6, and 12. On April 12, after beingalerted by Sergeant Pierce, Corporal Abuelhawaresponded to the location of appellant’s vehicle atChesapeake Square Shopping Center. After observingappellant’s vehicle parked in front of a clothing store,Corporal Abuelhawa called for back up. CorporalAbuelhawa observed appellant kick the glass out of thefront door to the store, enter the store, and exit with abag full of clothing. Appellant placed the bag in hisvehicle. When a police officer approached appellant,appellant fled the scene.

Detective Matthew Mergenthaler, a detective withthe Howard County Police Department, testified thaton April 12, he obtained a search warrant forappellant’s vehicle. The documents relating to thewarrant were admitted into evidence.

Detective Mergenthaler included the followinginformation in the affidavit in support of the requestfor a warrant. Detective Mergenthaler was assigned toinvestigate a series of commercial burglaries of medicaloffices and computer stores that had occurred fromFebruary 22, 2010 through April 5, 2010 in HowardCounty.

The burglary on February 22 was of a dental office.Among other things, a signed blank bank check wasreported missing. Detective Mergenthaler determinedthat the stolen check had been made payable to NicoleCromwell and cashed. A review of the bank’ssurveillance footage from the time of the transactionrevealed a white female matching the description ofNicole Cromwell, as determined from a computer checkwith the Maryland Motor Vehicle Administration. Thesurveillance footage also revealed that the female had

App. 29

been dropped off by someone driving a greenTrailblazer.

On March 5, 2010, Detective Mergenthaler obtainedan arrest warrant for Nicole Cromwell and, on March9, arrested her. Ms. Cromwell stated that she hadobtained the check from someone named “Tony” whodrove the Trailblazer depicted in the surveillance tapeand who resided at 3706 W. Saratoga Street. Detectivesconducted surveillance of the residence and determinedthat the Trailblazer described by Ms. Cromwell wasregistered to appellant. They obtained a photo ofappellant and showed it to Ms. Cromwell whoidentified him as Tony.

With respect to the April 5 burglary, when policeofficers arrived at the scene of the burglary, theynoticed a Trailblazer in the area that matched, byappearance, appellant’s vehicle. The scene of theburglary was a computer warehouse from whichcomputer equipment had been taken. Shortly after theburglary, detectives located appellant, observed aprinter manual on the front seat of his vehicle, andobserved appellant place what appeared to be acomputer monitor in a box. Detectives followedappellant while he visited three different trading storesor pawn shops, and in each instance, he entered withboxes and returned to his vehicle with boxes. Theyfollowed appellant to a residence at 3706 W. SaratogaStreet, which he entered carrying boxes.

On April 12, while conducting visual surveillance ofappellant in his Trailblazer, they followed him to alocation on Ritchie Highway, the Chesapeake SquareShopping Center. The detectives observed appellantsmash a window in a place of business, enter the

App. 30

business, and return with clothing. When approached,appellant fled in his vehicle. The detectives pursuedhim. Appellant “bailed out” at some point, and thedetectives recovered appellant’s vehicle.

Defense counsel argued that all of the evidence hadbeen obtained as a result of the illegal placement of theGPS device and should be suppressed. The court deniedthe motion.

Anne Arundel County Trial

Appellant and the State entered into a pleaagreement. Appellant pled not guilty on an agreedstatement of facts to burglary in the second degree inexchange for a nolle pros in another case and asentence not to exceed ten years to run concurrentlywith any other sentence.

The agreed facts were as follows.

That on April 12, 2010 beginning atapproximately 4 a.m. detectives from theHoward County Police Department ROU[Repeat Offender] Unit as well as PropertyCrimes Section began surveillance of theDefendant with the aid of a GPS systemattached to the Defendant’s car. They also beganvisual surveillance of the Defendant.

They followed the Defendant into AnneArundel County and the Defendant proceeded tothe Casual Male store which was at 6710Governor Ritchie Highway Number G in GlenBurnie, Anne Arundel County, Maryland. Thatstore is the property of Casual Male RetailGroup, LLC.

App. 31

At that time the detective set up surveillanceand watched the Defendant from covertlocations and at that point Detective Abuelhawaof the Howard County Police got out of his carand then proceeded to the Defendant’s locationon foot. The Defendant’s car was parked in frontof the Casual Male store with the hatch up. Hewas driving a Chevrolet Trail Blazerblue–sorry–green in color.

The Defendant was seen by DetectiveAbuelhawa [to] go into the back of his truck andretrieve a plastic bag. He then took that plasticbag over to the front of the store where DetectiveAbuelhawa observed that the glass window ofthe side of [the] front door had been smashed.The Defendant further smashed the glass usingthe plastic bag to cover his hand and thenproceeded inside of the store without permissionof owners or the manager, Andrew Zabka.

The Defendant went into the Casual Male, hethen proceeded to load the plastic bag withseveral items of clothing, then left the store,went to this truck, and then put the bag ofclothing inside of his truck.

At that point the Defendant had also droppedsome of the items that he had taken from thestore. Detective Abuelhawa identified himself asa police officer. The Defendant made eye contactwith the detective [who] recognized theDefendant as Wesley Torrence Kelly who isseated at defense table next to counsel in blue.He recognized him from prior surveillance.

App. 32

He watched as the Defendant jumped into hisvehicle and fled. The defendant led the policeofficers on a high speed chase. At some pointAnne Arundel County got involved in the chase,and in fact at some point they lost sight of theDefendant.

They knew that at some point the Defendantmade a stop, I believe it was at Powder MillLane–Wesley Lane and Powder Mill Road. TheDefendant proceeded into Baltimore City wherehe bailed out of the car and left the car.Detective Laffin of the Howard County Policeactually recovered the car, secured it, and policetowed it back to Howard County where they didin fact search the car and found a shirtbelonging to the Casual Male with the tag stillattached.

They also found along the trail, the route theDefendant took, clothes belonging to the CasualMale store. Mr. Zabka would have testified theDefendant did not have permission to go into thestore, nor was he an employee, he did not havepermission to remove any of the clothing itemsthat belonged to Casual Male.

Howard County Suppression Hearing

On November 19, 2010, Howard County held ahearing on appellant’s motion to suppress. The courtadmitted into evidence the six search warrantsobtained by Detective Mergenthaler on April 13,including the applications for warrants. In addition toappellant’s vehicle, the warrants were directed at theapartment at 3706 W. Saratoga Street, the Gold

App. 33

Trading Center, Shine Corner, the Edmondson VillageCenter Pawn Shop1 and the residence at 1118 HarwallRoad. The applications for warrants directed atresidences and businesses contained essentially thesame information as that contained in the applicationfor a search warrant for appellant’s vehicle.

Defense counsel argued that all evidence wasobtained as a result of the illegal placement of the GPSunit and should be suppressed. After Sergeant Pierceand Detective Mergenthaler testified, the partiessupplemented the evidence with a proffer of relevantfacts.

We reproduce appellant’s summary of the testimonyand proffer, as set forth in his brief, deleting transcriptreferences.

The State proffered that a GPS tracker wasplaced on Mr. Kelly’s vehicle on a public streetoutside his residence at 1118 Harwall Road inWoodlawn in Baltimore County. The GPS unitwas installed on April 2, 2010 at the request ofproperty detectives who had been investigatinga burglary that had occurred earlier in the yearin Howard County and suspected Mr. Kelly’sinvolvement. The tracker was programmed suchthat Howard County police would be notified ifand when Mr. Kelly’s vehicle, a green 2004Chevrolet Trailblazer, came within a perimeter

1 The three businesses are the trading center/pawn shopsreferenced in Detective Mergenthaler’s affidavit in support of thesearch warrant for appellant’s vehicle, which was admitted intoevidence in the Anne Arundel County proceeding as well as theHoward County proceeding, and is summarized above.

App. 34

of Howard County. On April 5, 2010, shortlyafter 4:00 a.m., the GPS tracker notifiedSergeant Pierce that Mr. Kelly’s vehicle wasapproaching Howard County. He obtained alocation and sent Detective Laffin to RiverwoodDrive and Old Columbia Road in HowardCounty. As Detective Laffin drove towards thearea, he observed a vehicle matching thedescription of Mr. Kelly’s, but was not able to seewho was driving the vehicle. Laffin continued to7125 Riverwood Road after Sergeant Pierceinformed him that the vehicle in question hadstopped at that location. Laffin found a door atthe Advanced Programs, Inc. (“API”) building at7125 Riverwood Drive to be unsecured andobserved pry marks and damage to the strikeplate. Meanwhile, the alarm companymonitoring the business alerted police to analarm at that location. Detective Mergenthalermet with an API employee who informed himthat there were items in brown cardboard boxesthat had been stolen from the warehouse.Specifically, two Hewlett Packard printermodels, two API computer monitors and fourAPI boxes containing computer hard drives,keyboards, and computer mice had been taken.Mergenthaler obtained serial numbers for themissing equipment.

After determining that a burglary hadoccurred at API, officers again utilized the GPStracker to locate Mr. Kelly’s vehicle at 8:30 a.m.at the Carroll Manor Elementary School inAdamstown. Detectives Luckey and Laffinresponded to the area and observed the vehicle

App. 35

parked in the parking lot of the school whichwas under construction. At 10:30 a.m., theofficers went onto the construction site to lookinside of the vehicle. Detective Luckey sawseveral large boxes in the back of the vehicle anda Hewlett Packard printer manual located in thefront passenger seat. They left the site andcontinued their surveillance and DetectiveLuckey observed a man matching Mr. Kelly’sdescription enter the vehicle, open the rear door,and place a computer monitor in one of theboxes. He remained in the car for 20 minutesthen returned to the construction site.

Mr. Kelly left in the vehicle at approximately2:30 p.m. and he was followed by the detectives.They followed him to his residence at 1118Harwall Road in Gwynn Oak, Maryland. Heentered the house, then left shortly thereafter.He drove to another residence at 3706 WestSaratoga Street, entered and exited with twocomputer boxes that he placed in his truck. Mr.Kelly was then followed to the Gold CenterPawn Shop at 2022 Dennison Street inBaltimore. He removed a large box from the rearof the vehicle and entered the pawn shop. Hereturned and retrieved another object andreentered the shop. He then exited the pawnshop at 4:21 p.m. carrying a small box andreturned to his vehicle. He then drove to theShine Corner, Inc. pawn shop at 26 Hilton Streetin Baltimore. He entered the pawn shop withthree large computer boxes, then exited aboutten minutes later and drove back to theresidence at 3706 West Saratoga Street.

App. 36

At 5:06 p.m. Mr. Kelly was observed carryingtwo large Hewlett Packard boxes and two othersmaller boxes up to the residence. At 5:10 p.m.,Mr. Kelly was observed entering the vehicle anddriving to the Edmondson Village Pawn Shop inBaltimore. He entered carrying paperwork, andexited about five minutes later. He returned tothe Harwall Road residence and went inside.

On April 6, 2010, surveillance was resumedwhen Detective Pierce received a notificationfrom the GPS unit indicating that the vehiclewas moving. Officers found the vehicle at theWestview Promenade Center in Frederick,parked to the rear of the shopping center behindseveral closed businesses. Detective Laffinobserved a black male, matching Mr. Kelly’sdescription walking from the direction of theVerizon Wireless and White House BlackMarket stores before the suspect saw Laffin andreturned to his vehicle and left the area. Heproceeded to a commercial business park onPegasus Court in Frederick and was observeddriving and stopping in front of several closedbusinesses. He exited the vehicle briefly thenwalked back and drove to the construction siteat Carroll Manor Elementary School. Officersfound evidence of two attempted break-ins at thebusiness park.

On April 12, 2010, at approximately 4:00a.m., Detective Pierce received an alert from theGPS tracking unit that the vehicle was inmotion and thereafter notified surveillance unitsto follow the vehicle. Sergeant Pierce notified

App. 37

officers that the vehicle was on Interstate 695headed towards Glen Burnie. At 4:35 a.m.,Sergeant Pierce notified the responding officersthat the vehicle was parked in the parking lot ofthe Chesapeake Square Shopping Center.Officers arrived to find the vehicle backed into aparking spot in front of the Casual Male clothingstore at 6710 Ritchie Highway in Glen Burnie.One of the detectives noticed that the front doorof the business had been smashed out andobserved the suspect enter the store with anempty plastic bag and exit the store with a fullbag of clothing. Officers then approached thevehicle and the suspect quickly entered thevehicle and exited the parking lot at a high rateof speed.

The suspect led officers on a high speed chaseand eventually eluded them. Sergeant Pierceutilized the GPS tracker to locate the vehicleparked in the alley between Wesley Avenue andBellview avenue. The driver had fled the sceneprior to the officers’s arrival and the vehicle wastowed to the Howard County Police DepartmentNorthern District.

At 6:15 a.m., officers set up surveillance atboth the 1118 Harwall Road residence in GwynnOak and the 3706 West Saratoga Streetresidence in Baltimore. Search and seizurewarrants were prepared for both locations andfor the vehicle as well as the pawn shops visitedby Mr. Kelly. Mr. Kelly was taken into custodyat 2:00 p.m. after leaving 3706 West SaratogaStreet.

App. 38

* * *

Sergeant Duane Pierce of the Howard CountyPolice Department testified that he installed aGPS tracking device on Appellant’s ChevroletTrailblazer on April 2, 2010. According toSergeant Pierce, the GPS device used, like mostmodern cellular phones, had a cell phonecomponent and a GPS component and both wereused to determine the location of the targetvehicle at any given time. The devicetransmitted information, “just like a cell phonewould.” The self-powered device was installed onthe exterior of the vehicle using magnets.Sergeant Pierce crawled underneath the vehicleand attached the device to the frame of the car.At the time of the installation, the car wasparked at 1118 Harwall Road in Gwynn Oak,Maryland, across the street from Appellant’sresidence. It was stationed in a public parkingspot on the street. The GPS device wasprogrammed to continuously track and recordthe location of the vehicle and immediatelybegan to do so upon installation. Officers hadthe option of reviewing the location data at alater time and could also initiate “real time”tracking, which allowed them to track thevehicle as it moved. Sergeant Pierceprogrammed the device to alert him wheneverAppellant’s vehicle approached the HowardCounty line. According to Sergeant Pierce, therewere three methods of retrieving data from theGPS device: 1) connecting it to a computer afterdetachment from the vehicle, 2) obtaining therecorded information wirelessly while the device

App. 39

was still attached to the vehicle, and 3) “livetracking.” Sergeant Pierce could not recallwhether “live tracking” was used between April6th and April 12th, nor did he know whether thearchived information n the GPS device was laterused in the investigation.

On April 5th, 2010, at approximately 4:00a.m., Sergeant Pierce received a notificationfrom the tracker that the vehicle had enteredHoward County and at that point he notifiedother officers to respond to the Columbia area ofRiverwood Drive and Old Columbia Road.Detective Laffin responded to the area, andobserved the vehicle driving through parkinglots slowly making short stops. Laffin thenproceeded to check the buildings in the area.Later that day it became known that a burglaryhad occurred at 7125 Riverwood Drive, in thearea in question.

Detective Matthew Mergenthaler respondedto 7125 Riverwood Drive on April 5, 2010 andmet with a business representative of AdvancedPrograms, Inc. He learned that items had beentaken from the business early that morning andobtained search and seizure warrants in anattempt to locate the missing items. Thewarrants were executed on April 13th, 2010 atdifferent pawn shops and some items wererecovered.

At approximately 8:30 a.m. on April 5, 2010,the GPS device was again utilized to locate thevehicle at Carroll Manor Elementary School inAdamstown. Detectives Laffin and Luckey were

App. 40

directed to respond to that area. Once thedetectives responded, they found the vehicle andconducted surveillance throughout the day.Sergeant Pierce used the “live tracking” optionon the GPS periodically throughout the day asneeded in conjunction with the surveillance bythe other detectives.

Sergeant Pierce testified that based onprevious patterns, he was requested to do moremobile surveillance and change the parametersutilized in locating the vehicle. At around 4:00a.m. on April 12, 2010, Detective Pierce receivedan alert through his phone that the Appellant’svehicle was moving and he initiated “livetracking.” He then directed police surveillancemembers to the location of the vehicle which wasparked at the 6700 block of Ritchie Highway inGlen Burnie. The officers responded and foundthe vehicle. A chase ensued later that day andSergeant Pierce assisted with the pursuit bytracking the vehicle and advising officers of itslocation. The vehicle was eventually foundunoccupied in Baltimore City and was towedback to the Northern District where the GPStracker was removed on April 12.

Relying on this Court’s decision in Stone v. State, 178Md. App. 428 (2008), discussed later in this opinion,the court denied the motion to suppress all evidence.

Howard County Trial

At trial, the police officers testified to theirinvestigation and observations but did not mentionGPS tracking.

App. 41

Arguments

Relying heavily on Jones, supra, appellant arguesthat placement of the GPS device was a search becauseit constituted a physical trespass to chattel andviolated his reasonable expectation of privacy.Acknowledging that the Supreme Court, in Jones, didnot reach the question of reasonableness, appellantargues that a warrantless search is per seunreasonable, unless it fits within a recognizedexception, none of which are applicable in these cases.Appellant adds that the State has waived anyreasonableness argument because it was the State’sburden to establish reasonableness, and it failed to doso in circuit court.

Appellant also argues that the good faith exceptionto application of the exclusionary rule, as enunciated inDavis v. United States, 131 S. Ct. 2419 (2011), does notapply because there was no “binding appellateprecedent” in Maryland, at the time of placement of thetracking device, holding that such action was legal.Appellant explains that this Court’s decision in Stone,supra, relied on by the circuit court, is distinguishableand, in light of Jones, based on faulty reasoning. Thus,it was not binding appellate precedent within themeaning of Davis.

The State, impliedly conceding that placement ofthe GPS device was a search, argues that appellantfailed to argue that the search was unreasonable, andthus, he waived that argument. The State also arguesthat the facts in these cases are very different fromthose in Jones, and the search in these cases wasreasonable. Relying on Davis and Stone, the Stateargues that, in any event, the officers acted in good

App. 42

faith based on established precedent. Next, the Stateargues that all of the evidence was seized pursuant tosearch warrants, and thus, the independent sourcedoctrine applies. Pursuant to that doctrine, the Stateargues the “tainted” information in the applications forwarrants should be excised, and the untaintedinformation assessed to determine if it constitutedprobable cause. The State concludes that the untaintedinformation was sufficient to constitute probable cause.Finally, the State argues that appellant’s commissionof a new crime on April 12, in the presence of policeofficers, purged the taint from any unlawful search.

With respect to the independent source andintervening crime arguments, appellant responds thatthey were not raised in circuit court and, thus, cannotbe raised on appeal. In any event, according toappellant, all of the evidence was obtained as a resultof placement of the GPS device and was tainted.

Discussion

Pre-United States v. Jones

In the context of police use of electronic trackingdevices, we begin with Katz v. United States, 389 U.S.347 (1967). In that case, the defendant was convicted oftransmitting wagering information by telephone, inviolation of a federal statute. The governmentintroduced evidence of a telephone conversation bydefendant which had been obtained by virtue of alistening device attached to the outside of a publictelephone booth. The majority, recognizing the absenceof a physical trespass, and recognizing that thegovernment had probable cause to obtain a warrant, id.at 354, concluded that placing the device without a

App. 43

warrant was an unreasonable search and seizure. Id. at353. The basis for the conclusion was that thegovernment’s action violated what has come to beknown as a reasonable expectation of privacy.

In United States v. Knotts, 460 U.S. 276 (1983),police officers had information that the defendant waspurchasing chloroform to use in an illicit drugoperation. With the consent of the seller, the officersplaced a beeper in a drum of chloroform which wasthen sold to the defendant. After the drum was placedin the defendant’s vehicle, the officers followed thevehicle through a combination of tracking the beepersignal and visual surveillance. They tracked thedefendant to a cabin in a secluded area. After threedays of visual surveillance, the officers obtained asearch warrant for the cabin and found a druglaboratory. Id. at 277.

A majority of the Court held that the application forwarrant, based in part on information obtained via thebeeper, was not constitutionally infirm. Applying theKatz analysis, the Court explained that a persontraveling on a public highway in a vehicle has noreasonable expectation of privacy in the person’smovements from one location to another. Id. at 281.The Court further explained that the Constitution didnot prevent the officers from augmenting their naturalsenses with technology, id. at 282, and that the beepersimply was a more effective method of observing whatwas already public. Id. at 284.

Before turning our attention to Maryland cases, weexpound on Davis, supra. In that case, police officersconducted a traffic stop of a vehicle in which thedefendant was a passenger. The officers arrested the

App. 44

defendant for providing a false name and placed him intheir vehicle. The officers then conducted a searchincident to arrest of the vehicle, including thedefendant’s jacket, where they found a firearm. Afterthe defendant’s motion to suppress the firearm wasdenied, the defendant was convicted of unlawfulpossession of a firearm.

The search occurred in Alabama, located in theEleventh Circuit. It was conducted in accordance withbinding precedent in that circuit, i.e., United States v.Gonzalez, 71 F.3d 819, 822 (11th Cir. 1996), which,applying New York v. Belton, 453 U.S. 454 (1981), hadheld that a search of a passenger compartment in amotor vehicle incident to arrest of an occupant islawful, even if the occupant is no longer in the vehicleat the time of the search. While the defendant’s appealwas pending, the Supreme Court decided Arizona v.Gant, 556 U.S. 332 (2009), which limited the scope of asearch of an unoccupied vehicle. The Davis Courtapplied the Gant decision retroactively, 131 S. Ct. at2430, thus rendering the Davis search unlawful.Nevertheless, the Supreme Court held that theexclusionary rule did not apply because the search wasconducted in good faith reliance on binding precedent.131 S. Ct. at 2429.

In Briscoe v. State, 422 Md. 384 (2010), the Court ofAppeals had before it a challenge to a search incidentto arrest of a locked glove compartment in a vehicle.While the case was pending on appeal, the SupremeCourt decided Gant. The State conceded the searchviolated Gant but argued, inter alia, that the good faithexception to the exclusionary rule applied. Id. at 389.The Court of Appeals applied the Davis good faith

App. 45

exception because the search was lawful at the timeunder Belton, as applied in Maryland. E.g., Gee v.State, 291 Md. 663 (1981). 422 Md. at 391. Inexplaining, the Court stated:

The principle that emerges from Davis is thatoperation of the exclusionary rule is suspendedonly when the evidence seized was the result ofa search that, when conducted, was a “policepractice” specifically authorized by thejurisdiction’s precedent in which the officeroperates. To decide whether the particularsearch at issue in the present case—the searchof the locked glove compartment—comes withinthe Davis rule, we must examine what Marylandlaw dictated at the time of that search.

The search of Petitioner’s vehicle wasconducted on June 26, 2007. At that time, thesearch of the minivan incident to Petitioner’sarrest was governed by the then-prevailingBelton bright-line rule. See Gee, 291 Md. at 668,435 A.2d at 1389-90; McCain, 194 Md. App. at276, 4 A.3d at 66. Under Belton, a glovecompartment is included in the Beltonperimeter. See Belton, 453 U.S. at 461 n. 4. Atthe time of the search at issue, no reporteddecision of this Court or the Court of SpecialAppeals had addressed specifically whether apolice officer conducting a Belton search couldopen a locked glove compartment.

Petitioner takes the position that, because, atthe time of the search at issue, no reporteddecision in Maryland expressly authorized policeto open a locked glove compartment as part of a

App. 46

Belton search, there did not exist at that time“binding appellate” Maryland authority uponwhich Officer Bormanshinov could have“reasonably relied” in searching the glovecompartment. The State acknowledges thatthere was no then-existing reported Marylanddecision specifically authorizing the search of alocked glove compartment. The State points out,though, that, “just prior to the suppressionhearing in this case, the Court of SpecialAppeals [in Hamel v. State, 179 Md. App. 1, 18,943 A.2d at 696 (2008)] made it clear that Beltonpermitted the search of a locked glovedcompartment.” Petitioner replies that Hamel isof no benefit to the State, because it was filedtwo months after the search in question andthus could not serve as precedent upon whichOfficer Bormanshinov could objectively and ingood faith rely. We are in general accord withthe State that the Davis good-faith exceptionapplies to the search at issue, although we takea slightly different tack in reaching thatconclusion.

We understand the Davis Court’s reference tobinding appellate precedent to mean that thecaselaw of the jurisdiction must have been clearabout whether that jurisdiction had adopted thebright-line rule of Belton. Petitioner and theState do not disagree that, until Gant wasdecided, Belton was a part of Maryland law.And, under Belton, the police are entitled tosearch the entire passenger compartment of avehicle, including the glove compartment. Torepeat, the Belton Court made clear that, in a

App. 47

search for both weapons and destructibleevidence incident to a valid arrest of a vehicle’soccupant, police may search ‘inside the relativelynarrow compass of the passenger compartment”of the vehicle, and may “examine the contents ofany containers found within the passengercompartment[.]” 453 U.S. at 460. The BeltonCourt defined “container” for this purpose as‘denot[ing] any object capable of holding anotherobject. It thus includes closed or open glovecompartments, consoles, or other receptacleslocated anywhere within the passengercompartment, as well as luggage, boxes, bags,clothing, and the like.” Id. at 460-61 n.4. Webelieve it to be clear, under Belton itself, that alocked glove compartment is within the scope ofthe rule announced in that case,notwithstanding that the Court made no effortto include that detail or, for that matter, anyother fact-specific details concerning the scope ofthe search. Indeed, the Belton Court expresslyeschewed a fact-specific rule in favor of abrightline rule that could be easily applied byofficers in the field. See id. at 458 (“[A] single,familiar standard is essential to guide policeofficers, who have only limited time andexpertise to reflect on and balance the social andindividual interests involved in the specificcircumstances they confront.” (internalquotation marks omitted)).

Petitioner is correct that, before the Court ofSpecial Appeals’s decision in Hamel, no reportedMaryland appellate decision expressly held thatthe police, in conducting a Belton search, may

App. 48

open a locked glove compartment. Given thebright-line nature of the Belton rule, however, itwould be unfaithful to its very design andpurpose to have its application and, in turn theapplication of the Davis good-faith exception,depend on whether a container, undeniablywithin the so-called Belton perimeter, is lockedor unlocked. In other words, the Court of SpecialAppeals, in deciding Hamel as it did, merelyapplied the Belton rule to the specific facts of thecase. Hamel did not create new “bindingappellate precedent” in Maryland; rather, thatcase merely applied what was at the time, andhad been since 1981, Maryland law.

We therefore hold that, before Gant, bindingappellate precedent in Maryland, namely Belton,dictated that searches incident to arrest ofrecent occupants of vehicles included searches ofall containers, whether locked or unlocked,within the passenger areas of the vehicles.Officer Bormanshinov acted in objectivelyreasonable reliance on that authority when hesearched the locked glove compartment. Itfollows then, that the good-faith rule of Davisapplies, and the suppression court correctlydenied the motion to suppress the handgunfound there.

(Footnotes omitted.) Id at 406-410.

In Stone v. State, 178 Md. App. 428 (2008), thedefendant was convicted of burglary and theft. Thedefendant was arrested after the vehicle in which hewas riding as a passenger was stopped by policeofficers. The officers effected the stop because they had

App. 49

probable cause to believe, based on their priorinvestigation, that appellant was involved in aburglary. The officers obtained the information onOctober 14, 2005. On the same day, after obtaining theinformation, the officers obtained the defendant’s cellphone number, and through enlisting his cell phonecarrier to “ping” his phone, located the defendant’svehicle. At that time, the officers placed a GPS deviceon his vehicle. On October 17, 2005, using the signalfrom the GPS device to locate the defendant’s vehicle,the officers effected the stop and arrest of thedefendant. Between October 14 and October 17, theofficers did not obtain information implicating thedefendant in the crimes in question in addition to thatwhich they already had. Id. at 437-38.

On appeal, appellant argued, inter alia, that thetrial court abused its discretion in limiting thedefendant’s cross-examination of a police officer withrespect to locating the defendant’s vehicle through theuse of the “ping” and, later, through the GPS device.We stated:

The suppression court did not abuse itsdiscretion in cutting short the appellant’scross-examination about the cell phone “ping”and the GPS tracking device because it wasunlikely that cross-examination on those pointswould have produced any relevant evidence.United States v. Knotts, 460 U.S. 276, 103 S. Ct.1081, 75 L. Ed. 2d 55 (1983), is controlling.

In Knotts, government agents investigatingallegations that the defendant and twoc o d e f e n d a n t s w e r e m a n u f a c t u r i n gamphetamines arranged with the seller of

App. 50

chloroform, used in the manufacturing process,to place a radio transmitter, i.e., a “beeper,”inside a chloroform container sold to aco-defendant. At first, the agents used visualobservation and the beeper monitoring to followthe co-defendant’s vehicle after he purchased thechloroform. Eventually, when they suspectedtheir cover was no longer intact, they reliedupon the beeper alone to show the route of thatvehicle, which ended at the defendant’s secludedcabin in West Virginia. After conductingsurveillance for three days, the agents obtaineda search warrant for the cabin. The searchrevealed “a fully operable, clandestine druglaboratory.” Id. at 279. The defendants werecharged with federal drug crimes.

The defendant moved to suppress theevidence found in his cabin on the ground thatthe agents had violated his Fourth Amendmentrights by using the “beeper” placed in thechloroform container to follow the co-defendant’svehicle to the cabin. His argument was rejectedat the trial level but accepted on appeal. TheSupreme Court reversed. It noted first thatapplication of the Fourth Amendment dependsupon whether the person invoking it can claim alegitimate expectation of privacy. Katz v. UnitedStates, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d576 (1967). It observed that

[t]he governmental surveillanceconducted by the means of the beeper inthis case amounted to principallyfollowing an automobile on public streets

App. 51

and highways,” and that “[o]ne has alesser expectation of privacy in a motorvehicle because its function istransportation and it seldom serves asone’s residence or as the repository ofpersonal effects. A car has little capacityfor escaping public scrutiny. It travelspublic thoroughfares where both itsoccupants and its contents are in plainview.”Knotts, supra, 460 U.S. at 281(quoting Cardwell v. Lewis, 417 U.S. 583,590, 94 S. Ct. 2464, 41 L. Ed. 2d 325(1974) (plurality)).

The Court reasoned that when theco-defendant “traveled over the public streets hevoluntarily conveyed to anyone who wanted tolook the fact that he was traveling overparticular roads in a particular direction, thefact of whatever stops he made, and the fact ofhis final destination when he exited from publicroads onto private property.” Id. at 281-82. Itobserved that, although the defendant had areasonable expectation of privacy inside hiscabin, that expectation did not “extend[] to thevisual observation of [the co-defendant’s]automobile arriving on his premises afterleaving a public highway, nor to movements ofobjects such as the drum of chloroform outsidethe cabin in the ‘open fields.’” Id. at 282 (quotingHester v. United States, 265 U.S. 57, 58, 44 S.Ct. 445, 68 L. Ed. 898 (1924)). Ultimately, theCourt concluded that

App. 52

[v]isual surveillance from public placesalong [the co-defendant’s] route oradjoining [the defendant’s cabin] wouldhave sufficed to reveal all of these facts tothe police. The fact that the officers inthis case relied not only on visualsurveillance, but on the use of the beeperto signal the presence of [theco-defendant’s] automobile to the policereceiver, does not alter the situation.Nothing in the Fourth Amendmentprohibited the police from augmenting thesensory faculties bestowed upon them atbirth with such enhancement as scienceand technology afforded them in this case.

460 U.S. at 282 (emphasis added). See alsoGibson v. State, 138 Md. App. 399, 414-17, 771A.2d 536 (2001) (holding that a person has noreasonable expectation of privacy in his locationwithin a public space).

The GPS tracking device in the case at bar issimply the next generation of tracking scienceand technology from the radio transmitter“beeper” in Knotts, to which the Knotts FourthAmendment analysis directly applies. Theappellant and his wife did not have a reasonableexpectation of privacy in their location as theytraveled on public thoroughfares. With thetransmission from the GPS device, TrooperBachtell was able to locate Joanne Stone’spickup truck as she was driving it on a publicroad, where she had no reasonable expectationof privacy, and where she could be seen by the

App. 53

trooper or anyone else. Under Knotts, the use ofthe GPS device could not be a FourthAmendment violation, and hence further inquiryabout it, on cross-examination of TrooperBachtell, would not have led to relevantinformation.

Use of the cell phone “ping” information alsowas not relevant. The “ping” informationrevealed that the appellant’s cell phone waslocated, at that very time, somewhere “within atwo mile radius of the Frederick CountyDetention Center.” Using that information,Trooper Bachtell drove on the public roads in thevicinity of the detention center and saw, outsideon a motel parking lot, in full public view, avehicle registered in the appellant’s name. Thus,the cell phone “ping” information, like the GPStracking information and the beeper informationin Knotts, served to narrow the area of publicspace in which to look for the appellant, hisvehicle, or both.

In In the Matter of the Application of theUnited States for an Order Authorizing theInstallation and Use of Pen Register and aCaller Identification System on TelephoneNumbers, 402 F. Supp.2d 597, 604-05 (D. Md.2005), the court held that, to use real time cellphone “ping” technology to obtain evidence of acrime, the Fourth Amendment requires thegovernment to obtain a warrant by showingprobable cause to believe a crime has been or isbeing committed. In the case at bar, however,the cell phone “ping” technology was not being

App. 54

used to obtain evidence with which to generateprobable cause. As we have explained, theinvestigating officers already had probable causeto believe that the appellant had committedburglary and felony theft. They were using thecell phone “ping” technology merely to find theappellant so they could take him into custody,already having probable cause to support anarrest, and not to gain information that wouldfurnish probable cause to arrest. Moreover, theywere not using the technology to locate theappellant in a private space. They used it only tonarrow the area of public space in which tosearch for the appellant to place him underarrest. In other words, the cell phone “ping”technology was being used as a tracking device,like the GPS, to locate the appellant in public.

For the reasons we just have discussed, theappellant did not have a reasonable expectationof privacy in his location in the public, and, morespecifically, in a vehicle riding on public roads,and therefore evidence about the use of the GPSdevice and the cell phone “ping” informationmerely to locate him in public, which just as wellcould have been done by human visualization --though less efficiently -- was not relevant to theappellant’s Fourth Amendment-basedsuppression motion.

Stone, 178 Md. App. at 446-50.

United States v. Jones

The defendant, Jones, was suspected by lawenforcement of trafficking in narcotics. Police officers

App. 55

obtained information through various investigativetechniques and then applied for a warrant authorizingthe placement of a GPS device on a vehicle that wasregularly used by the defendant. A warrant was issued,authorizing placement of the device in the District ofColumbia within ten days. The device was not placed inten days and was placed in Maryland, in violation ofthe warrant requirement. Consequently, the issuepresented was whether a warrant was required. Jones,132 S. Ct. at 948.

The device was placed on Jones’s vehicle while thevehicle was parked in a public parking lot. Policeofficers used the device to track the vehicle over aperiod of 28 days. The information was transmitted toa computer, generating over 2,000 pages of data. Id.

After the defendant was indicted, he filed a motionto suppress evidence obtained through use of the GPSdevice. The motion was granted in part, and thedefendant was ultimately convicted. On appeal, theUnited States Court of Appeals for the District ofColumbia Circuit reversed and, employing a Katzanalysis, held that the admission of the evidenceobtained by the warrantless use of the GPS deviceviolated the Fourth Amendment. Id. at 949 (citingUnited States v. Maynard, 615 F. 3d 544 (D.C. Cir.2010)).

The Supreme Court, in Jones, affirmed the Court ofAppeals. The sole issue decided by the Court waswhether the attachment of a GPS device “to anindividual’s vehicle, and subsequent use of that deviceto monitor the vehicle’s movements on public streets,constitutes a search or seizure within the meaning ofthe Fourth Amendment.” Id. at 948. Justice Scalia,

App. 56

writing for a majority of the Court, relying on pre-Katztort law, based their decision on the fact thatgovernment officials had committed a common lawphysical trespass. 132 S.Ct. at 950. Justice Scaliaexplained that the Katz reasonable expectation ofprivacy analysis was intended to be in addition to, nota substitute for, the common law trespassory test. Id.at 951. Thus, there was no need to determine whetherthe officials’ actions violated the Katz test as well.

Justice Scalia added:

The Government argues in the alternativethat even if the attachment and use of the devicewas a search, it was reasonable–and thuslawful–under the Fourth Amendment because“Officers had reasonable suspicion, and indeedprobable cause, to believe that [Jones] was aleader in a large-scale cocaine distributionconspiracy.”. . . We have no occasion to considerthis argument. The Government did not raise itbelow, and the D.C Circuit therefore did notaddress it.

Id. at 954.

Justice Sotomayor, concurring, agreed that physicaltrespass was appropriate and sufficient to support theCourt’s conclusion but, given the extent of electronicsurveillance, also discussed the reasonable expectationof privacy test, positing many hypothetical questionsand opining that at some point the questions wouldhave to be answered under that test. Id. Justice Alito,writing for the remaining justices, and concurring inthe judgment, stated that those justices would decidethe case under the expectation of privacy test and

App. 57

would conclude that the “lengthy monitoring” was asearch. Id. at 958.

Was there an unreasonable search in the case at bar?

With respect to whether a search occurred, in Jones,five justices concluded that the government’s actionsconstituted a search, based on physical trespass. In thecase before us, there was a physical trespass, andtherefore, placement of the GPS device constituted asearch, without need to address appellant’s reasonableexpectation of privacy and whether the facts in thiscase, distinguishable from the facts in Jones, wouldpass muster.

The Supreme Court did not reach the question ofreasonableness. We will not predict how the SupremeCourt will decide that question and what standard itwill employ when the question is before it in thecontext of GPS devices. In the cases before us, we notethat, at the time a police officer placed the GPS device,officers knew there had been a series of commercialburglaries, and they had information that appellantwas involved in one of them. Thus, at the time anofficer placed the device, officers had probable cause toarrest appellant for the February 22 burglary, but didnot arrest him, and they had reasonable suspicion thatappellant was involved in other burglaries. We neednot decide the question of reasonableness because weconclude that, in any event, the search comes withinthe Davis good faith exception.2

2 The parties agree that Jones applies to the facts of this case, eventhough the search occurred well prior to the Jones decision. SeeBriscoe v. State, supra, and State v. Holt, ___Md. App.___ (No. 132,Sept. Term, 2012, filed August 29, 2012).

App. 58

Good faith exception

As we noted above, in Davis, the Supreme Courtheld that the exclusionary rule does not apply if asearch was conducted in good faith reliance on bindingprecedent. The question then becomes what is meantby binding precedent. We shall review the federal casescited by the parties because we find that helpful to ourapplication of Davis, Briscoe, and Stone.3

After the decision in Knotts, prior to the decision inJones, and prior to the search in the cases before us,United States Courts of Appeals for the Seventh,Ninth, and Eighth Circuits filed opinions, addressingthe placement of GPS devices on a vehicle. In all threeinstances, a GPS device was placed by law enforcementauthorities on the defendant’s vehicle when it waslocated in a public place. Relying heavily on Knotts, thecourts concluded there was no search because thedefendants had no reasonable expectation of privacywith respect to the acts in question. United States v.Garcia, 474 F.3d 994, 996 (7th Cir. 2007) (length ofmonitoring is unclear); United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir., January 11,2010) (officers installed several GPS devices ondefendant’s vehicle and monitored movement over afour month period), vacated sub nom Pineda-Moreno v.United States, 132 S. Ct. 1533 (2012); and UnitedStates v. Marquez, 605 F.3d 604, 609 (8th Cir. January

3 The applicability of the good faith exception to the exclusionaryrule was not decided by the circuit courts. It is an issue of law, andwe exercise our discretion to decide the issue because it arises dueto a change in the law after the circuit courts’ decisions. SeeMcCain v State, 194 Md. App. 252, 278 (2010).

App. 59

14, 2010) (officers monitored movement over amulti-month period). In Marquez, 605 F.3d at 610, andin Garcia, 474 F.3d at 996, the Courts noted that thelaw enforcement authorities had reasonable suspicionthat the defendants were engaged in criminal activityat the time they placed the devices, perhaps implyingthat was the applicable standard.

Appellant calls our attention to People v. Weaver,909 N.E.2d 1195 (N.Y. 2009), Commonwealth v.Connolly, 913 N.E.2d 356 (Mass. 2009), and State vJackson, 76 P.3d 217 (Wash. 2003), all decided postKnotts, pre Jones, and prior to the date of the search inthe case before us. In Weaver, a GPS device was placedon the defendant’s vehicle and monitored for 65 days.909 N.E.2d at 1202. In Connelly, a GPS device wasplaced in the defendant’s vehicle by officers whoentered the vehicle and over a one hour periodconnected the device to the vehicle’s electrical system.913 N.E.2d at 369. In Jackson, a GPS device wasplaced on the defendant’s vehicle after obtaining awarrant. Thus, the search was legal, but the courtstated that a warrant was necessary. 76 P. 3d at 251.In all three cases, the basis of the courts’ decisions wasthe state’s constitution, not the Fourth Amendment.

Appellant also calls our attention to the decision inUnited States v. Maynard, supra, the decision by theDistrict of Columbia Court of Appeals that wasreversed in Jones. The Maynard decision was not fileduntil August 6, 2010, however, after the search in thecase before us.

The parties also cite cases, decided post Jones andpost Davis, applying the good faith exception to the

App. 60

exclusionary rule. The State calls our attention to thefollowing.

In United States v. Baez, ___ F. Supp. 2d ___, 2012U.S. Dist. LEXIS 97969 (D. Mass. 2012), the court,located in the First Circuit, applied the good faithexception to a placement of a GPS device on a vehiclefor 347 days. Id. at *10. The court stated there was nosplit in the federal circuits prior to Maynard and eventhough that case was filed prior to the search in Baez,it was filed only three days before and, thus,insignificant to the analysis. Id. at *22. The courtconcluded that “binding” within the meaning of theDavis good faith exception should not be appliedliterally and a substantial consensus amongprecedential courts is sufficient. Id. at *26.

In United States v. Leon, ___F. Supp. 2d ___, 2012U.S. Dist. LEXIS 42737 (D. Haw. 2012), in 2009, a GPSdevice was placed on a vehicle for five months. Id. at*3-5. The court, located in the Ninth Circuit, foundthere was binding Ninth Circuit precedent authorizingthe placement of the device prior to the placement inLeon, i.e., United States v. McIver, 186 F.3d 1119 (9th

Cir. 1999) (held placement of GPS device on a vehiclelocated in a public place did not violate reasonableexpectation of privacy, decided prior to United Statesv. Pineda-Morena, supra). The court concluded thatthere was an objective good faith belief that the extentof the monitoring in Leon was authorized. Id. at *10.

In United States v. Rosas-Illescas, ___F. Supp. 2d___, 2012 U.S. Dist. LEXIS 74594 (N.D. Ala. 2012), aGPS device was placed on a vehicle in December, 2011.Id. at * 2-8. The court applied the good faith exceptionto the exclusionary rule, based on precedent,

App. 61

specifically, United States v. Michael, 645 F. 2d 252(the former Fifth Circuit 1981) (en banc) (device was abeeper). Id. at *19.

In United States v. Shelburne, ___ F. Supp. 2d ___,2012 U. S. Dist. LEXIS 85368 (W. D. Ky. 2012), a GPSdevice was placed on a vehicle in November, 2011. TheShelburne court was located in Kentucky, in the SixthCircuit, but the device was placed by law enforcementofficers in Indiana, which is located in the SeventhCircuit. Id. at *11-12. The Shelburne court stated thatthere was precedent in the Seventh Circuit authorizingthe placement of the device, i.e., United States v.Garcia, supra, and that was sufficient to apply the goodfaith exception. Id. at *14.

Appellant references the following. In United Statesv. Lee, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS71204 (E.D. Ky. 2012),4 a GPS device was placed on thedefendant’s vehicle in September, 2011. Id. at *2. Thecourt, located in the Sixth Circuit, interpreted theDavis requirement of “binding precedent” literally, and,observing that the Sixth Circuit had not spoken on thesubject of GPS devices, concluded that the good faithexception did not apply. Id. at *25.

In United States v. Ortiz, ___F. Supp. 2d ___, 2012U.S. Dist. LEXIS 101245 (E.D. Pa. 2012), authoritiesplaced a GPS device on the defendant’s vehicle, whenlocated in a public area, in November, 2010, and againin January, 2011. Id. at *11-24. The court, located inthe Third Circuit, refused to apply the good faith

4 Appellant cites to 2012 U.S. Dist. LEXIS 71205 but that was therecommended opinion by a United States Magistrate Judge.

App. 62

exception because there was no binding Third Circuitprecedent. The court stated that, in order for the Davisgood faith exception to apply, there must be bindingprecedent, explaining that non binding persuasiveprecedent, even if it represents the majority or supermajority view, does not suffice. In addition, the bindingprecedent must be on the “particular” police practice inquestion. Id. at * 65.

In United States v. Katzin, ___ F. Supp. 2d ___,2012 U.S. Dist. LEXIS 65677 (E.D. Pa. 2012),authorities placed a GPS device on the defendant’svehicle for two or three days. Id. at * 17. The court,located in the Third Circuit, noted there was no bindingdecision in that circuit and also noted that UnitedStates v. Maynard, decided after the search in the casebefore us, id. at *23, created a “split” in the federalcircuits. Id. at * 24. Based on that split and the factthat less that half of the federal circuits had opined onthe issue, the court concluded that the good faithexception did not apply. Id. at *32.

Similar to what some United States District Courtshave done, we read the Court of Appeals’s decision inBriscoe as interpreting Davis to mean that bindingprecedent does not require that there be a priorappellate case directly on point, i.e., factually the sameas the police conduct in question. Indeed, the situationbefore us is similar to the situation before the Court inBriscoe. Just as Maryland had generally recognizedBelton as permitting a search incident to arrest of anunoccupied vehicle, Maryland had recognized andapplied the rationale of Knotts, i.e., that the owners ofvehicles did not have a reasonable expectation ofprivacy in their movement on a public highway. Stone,

App. 63

178 Md. App. at 446-48. In addition, as was true ofmany courts, including apparently the four dissentingmembers of the Supreme Court, this Court, in Stone,assumed that the expectation of privacy test was theprevailing legal standard.

We conclude the good faith exception to theexclusionary rule applies, and the court did not err indenying the motion to suppress evidence. In light of ourconclusion, there is no need to address the remainingarguments.

JUDGMENTS AFFIRMED.COSTS TO BE PAID BYAPPELLANT.

App. 64

APPENDIX C

IN THE CIRCUIT COURT FOR HOWARD COUNTY,MARYLAND

Criminal Docket No. 13-K-10-050346

[Filed November 19, 2010]_________________________________STATE OF MARYLAND )

)vs. )

)WESLEY TORRANCE KELLY )

Defendant )________________________________ )

[Excerpts of]OFFICIAL TRANSCRIPT OF PROCEEDINGS

MOTION TO SUPPRESS

Ellicott City, MarylandFriday, November 19, 2010

BEFORE:

HONORABLE TIMOTHY MCCRONE, JUDGE

APPEARANCES:

For the State of Maryland:

MARY MURPHY, ESQUIRE

For the Defendant:

JANETTE DEBOISIERRE, ESQUIRE

App. 65

Transcribed from digital audiotape recording by:

GARY P. MICHAEL,Official Court Reporter8360 Court AvenueEllicott City, Maryland410-313-2064

* * *

[p.67]

throughout this area versus just Howard County.Because we’re not just interested in crimes that occurand, however, we’re also interested in crimes that theperson is committing everywhere.

Q. And so you want it continuously surveilling?

A. Yes, ma’am, to link him to as many burglaries aspossible.

MS. DEBOISSIERE: Okay, thank you. No furtherquestions, Your Honor.

MS. MURPHY: Nothing further.

THE COURT: Thank you, very much, DetectivePierce.

THE WITNESS: Thank you.

MS. MURPHY: Your Honor, I don’t believe there’sa need for any further witnesses with respect to thisparticular issue unless the Court feels or DefenseCounsel feels otherwise.

MS. DEBOISSIERE: I don’t think so either, I thinkwe have the information. I will say that, I guess here,

App. 66

that I’ve never seen the records regarding the GPSsystem, that’s not part of what’s been provided indiscovery.

MS. MURPHY: Your Honor, I did print out a copylast night, so I can provide that to Counsel, I’d behappy to do so, if you can make sense out of it.

MS. DEBOISSIERE: Exactly.

THE COURT: Be careful what you ask for.

MS. DEBOISSIERE: Exactly. So, I mean, I knewthat it would be similar to cell phone records, that itwould be dated,

[p.68]

it’s printed out, it does look like it’s, I’m guessing, 300pages maybe 400 pages of data and I’m assumingordered by date it looks like.

But, that -- I don’t think we need to make it part ofthe evidence here for the purposes of this motion. I do,I guess, wanna make sure that it’s not intended to beevidence in the trial in any way, I would object to that,of course.

But, I think that you have the information you needfor us to be able to argue, Your Honor, with regard tothis motion.

THE COURT: Would you like to --

MS. MURPHY: Just stating for the record, YourHonor, that the State has delivered the GPS historicalinformation from April 2nd through April 12th that wasobtained on the GPS unit, the tracker, since I didn’tprepare a cover letter of the discovery, Your Honor.

App. 67

THE COURT: Do you know how many pages that is,Ms. Murphy?

MS. MURPHY: Your Honor, it, I believe --

THE COURT: Are they numbered?

MS. MURPHY: They are not numbered, I apologize,Your Honor.

THE COURT: And just so the record will be clear,it’s apparently?

MS. MURPHY: It is apparent -- it is approximately-- I would say it’s approximately 600 pages, YourHonor.

[p.69]

THE COURT: Okay. It appears to be about twoinches thick, just for the record.

Would you like to be heard on the legal issue? Iguess it’s your motion so I’ll?

MS. DEBOISSIERE: Sure, Your Honor, thank you.

I think, if I may, first, Your Honor, go through thecases a bit.

Well, let me back up, I really should state what I’msuppressing. I think that the -- that testimony aboutthe alerts from this tracking system should not beadmitted into evidence. I think that the testimony ofobservations made of mr. Kelly, where the police firstwere alerted by the tracking system to go -- to knowwhere to find him and then they made observations,each of those observations should not be permitted. So,that would include the observation of him leaving the

App. 68

Riverwood Drive area, the observation of him at theschool parking lot with items in his car --

THE COURT: Well, first let’s approach it slightlydifferently. First, perhaps, just convince me that he hasa reasonable expectation of privacy.

MS. DEBOISSIERE: Okay. That’s where theMaynard case helps us, Your Honor, because they do avery careful review of why someone would have areasonable expectation.

THE COURT: And I’ve read the Maynard case.

MS. DEBOISSIERE: In the -- in that case it shows,

[p.70]

clearly, that it’s the pattern over time that theintrusion occurs. That in the Knott case where onetracking device in a drum that was going to be the biglead, would be picked up by their suspect andtransported to another location, they put the trackingdevice in the drum, not on the actual vehicle, but in thedrum that was picked up and delivered. It was a onetime trip and --

THE COURT: And that ended up in the interior ofthe vehicle.

MS. DEBOISSIERE: Sure, once it was loaded on thevehicle it was transported and they used it to track thelocation of that substance that was being used toproduce drugs. And the Knott court ruled that the;Knott is K-N-O-T-T; ruled that the one time drivingfrom -- a journey from one location to another is publicand you don’t have a reasonable expectation of privacy

App. 69

in that, you’re out in public, you shouldn’t have areasonable expectation of privacy in that.

But, the Maynard case points out that when there’sa continuous 24 hour surveillance of someone usingthese tracking devices that the expectation of privacychanges, it’s not the -- you don’t measure yourexpectation of privacy based on whether you’re out inpublic but whether you would expect the public orothers, other people, to notice your movements ornotice your conduct or notice the observations of yourmovements in any manner. And so, the continuoussurveillance allows the police to

[p.71]

put together the evidence or the behavior, the patterns,the habits of that person that tend to show the criminalactivity and that’s where the intrusion has occurred.And it wasn’t actually Mr. Maynard it was Mr. Joneswho was a co-defendant of Mr. Maynard’s that won areversal in his case because they were able to showthat he did have a reasonable expectation of privacy inhis vehicle and that a 24 hour continuos surveillance,in that case it was for 28 days, was an intrusion on thatreasonable expectation of privacy and without awarrant to permit it they would only be allowed to doit if they were an automobile exception or some otherexception that would permit a warrantless search ofthe car. So, they found that the placement of the devicewas a search, that when it was placed to be a 24 hoursurveillance and not a one time traveling trip, one timejourney and that the expectation of privacy in thatcontinuous driving of that car or the location of that carwas reasonable for the -- for Mr. Jones to have. And Ithink that’s --

App. 70

THE COURT: So, would your argument be thatanything that extends beyond 24 hours would be asearch?

MS. DEBOISSIERE: I don’t know where to cut theline, I don’t where we should draw the line as to where-- as to how long it can be before it’s determined to bean intrusion. I think that it’s very simple for the policeto get a court order to put a tracking device on and thatwould be the easy thing, to rule that they shouldalways have a court order to put a tracking device on

[p.72]

a vehicle. I think the Knott case gives them a reasonwhy they don’t have to do it under certaincircumstances, but that certainly isn’t the circumstancein Mr. Kelly’s case. Detective Pierce has made it clearthat this was an intention -- they’re intention was tolearn whether he was committing burglaries anywhereand to help catch him. And that it was a 24 hoursurveillance, that they could access at any time andcould even look back at later for historical data if theyfound that there were burglaries in certainneighborhoods, they could check to see if he had beenthere.

THE COURT: But, isn’t Stone a Maryland case thatcontrols in the State of Maryland?

MS. DEBOISSIERE: I think Stone controls if thefacts match Stone, absolutely, but it doesn’t. Stone isthe best GPS case out there so far for Maryland,certainly the most recent one, but I think it’s verydifferent from the circumstances in this particularcase. First of all, in the Stone case they had Mr. Stone-- they had evidence of Mr. Stone actually pawning the

App. 71

stolen camera on the day of the burglary, so they hadprobable cause to stop him, they had probable cause tocharge him, they didn’t need a GPS system to doanything in charging him or proving the evidencesufficient in that case for the burglary. But, they stilldid put a tracking device on the vehicle and I believe itwas a one day -- it was a one trip -- no, I’m sorry, I’mlooking at Knott, I’m getting now on Stone what the --

[p.73]

THE COURT: ‘Cause Judge Eyler doesn’t even hintthat there would be any sort of --

MS. DEBOISSIERE: No, you’re right, they --

THE COURT: -- timeline.

MS. DEBOISSIERE: -- viewed the Knott case asdictating that it’s not a search. But, the Maynard caselater shows how we should view the Knott case, thatthe Knott court did not determine -- the Knott wasn’tsaying that it’s not a search, they were saying that it’sokay to put it -- it’s not a search if it’s one journey. AndI think that’s where the Stone case makes the errorand I expect that in the next year or two we’re going tosee that the Stone case is modified or changed or atleast we’re going to see a set facts like Mr. Kelly’s case,where it’s continuous surveillance over a longer periodof time.

I’m forgetting at the moment, Your Honor, how longthe Stone case was.

I think in -- I think probably the most important inthe Stone case is that it wasn’t the tracking device thatwas the evidence against him, that there was virtually

App. 72

no harm by the use of this tracking device, as far asproving the case against him. I think that’s probablythe single greatest factor to distinguish this.

In this case if it weren’t for the tracking device andthe data they were receiving from it there would be noevidence in this case. There is no evidence in this case,there are

[p.74]

observations of him with boxes that might be the boxesfound at Gold’s or might be the boxes found at 3706West Saratoga, which is not his residence, it’s someother man’s residence. They can’t link him to thoseboxes other then through observations of the police,where the police checked the data from the trackingdevice to see if he’s there and they go and see himthere. So, it’s -- I think that’s why it’s very differentfrom the Stone case, where they had other evidence toprove that he had committed the burglary and thetracking device was really a no relevant area in thecase.

In the Stone case they weren’t assessing thelegality, in my view, of the search warrants so much asdetermining whether or not the defense attorney couldcross-examine with regard to the tracking device andthe court ruled that it was going to elicit irrelevantinformation, it really was not the crux of the case. Andso it does mention the GPS system and they do make afinding that GPS is not a search in light of Knott. But,they don’t have to reach that conclusion in the Knottcase because it’s really an irrelevant portion of theevidence.

App. 73

I think in the Kelly case if they were asked toreview this case in light of the facts I think it’s muchcloser to the Maynard/Jones analysis and I think that’swhat we’re gonna find that the Maryland law will endup being. And so I do ask that you find that thisevidence -- that there should have been a warrant toput the tracking device on Mr. Kelly’s car and thateverything

[p.75]

that results in information gathered that might beevidence here should be suppressed, including theobservations of him in the Riverwood area, theobservations of him with boxes at the school parkinglot, with boxes at the pawn shops and the Saratogaaddress. So, we ask to suppress all of those things,Your Honor, and if I’m forgetting anything else relatingto the GPS observations I make those motions as well.

THE COURT: Alright, thank you.

MS. DEBOISSIERE: Thank you.

MS. MURPHY: Thank, Your Honor.

Your Honor, the Court must first determinewhether there is an expectation of privacy that isreasonable on behalf of Mr. Kelly, on his vehicle andhaving the GPS tracker placed there. I suggest to theCourt that the U.S. versus Knott case, which was reliedupon in great detail by the Court of Special Appeals inthe Stone case, U.S. versus Knott being 460 US 276, a1982 case. It doesn’t rise or fall on the limited nature ofthat opinion, I don’t believe, as the Maynard courtperhaps has interpreted it. I think a fair reading of thecase says that there’s very --

App. 74

“ . . . There is no reasonable expectation of privacyin a person’s movements from one place to anotherwhile traveling in an automobile on a publicthoroughfare.”

And that’s exactly what occurred here, Your Honor.We know that the installation of the GPS tracker wasdone on a

[p.76]

public street. It was something that was done, placedunder the vehicle by Detective Pierce on April 2nd,involving no entry into the car whatsoever, it wasattached to the exterior of the vehicle, it was self-contained unit did not interfere whatsoever with theautomobile’s driving, it was no entry within the vehicle.And what it then did was to internally maintain GPSsites of where the vehicle had traveled, but forpurposes of what this case is about, the use in this casewas the alert to Detective Sergeant Pierce on April the5th alerting Detective Pierce that the vehicle wascoming into the Howard County area. At that time,Your Honor, he directed Detective Laffin to respond tothe area of Riverwood Road and Old Columbia Road inan attempt to locate or to begin conducting surveillanceon Mr. Kelly’s vehicle at that point in time. That’ssomething law enforcement are able to do at any pointin time, there’s no intrusion into anybody’s privacy byfollowing and surveilling a vehicle and/or surveilling aperson there’s comings and goings.

It is not entry into a residence, it’s not entering intothe vehicle, it has been traditional law enforcementtools that have been employed throughout the ages.What we have is the addition of technology to assist

App. 75

with respect to that tool and investigative measure thatwas employed by the police. We have an enhancement,so to speak, of their ability to conduct surveillance.

THE COURT: And what’s the enhancement?

[p.77]

MS. MURPHY: The enhancement being merely thatthey don’t have to sit on the car 24 hours a day and toobserve the vehicle. In this case the program that wasset forth by detective Pierce was that, in fact, they werenot alerted to -- or that they were alerted to Mr. Kelly’svehicle being in the Howard County area, that’s whatinitially drew their attention in this case to Mr . Kellyon April 5th . When --

THE COURT: Isn’t that -- what I meant was, isn’tthat essentially the same information that these kindsof devices have sent for many, many, many years?

MS. MURPHY: Oh, absolutely. It’s similar to thebeeper that was used in the U. S. versus Knott case, it’sabsolutely the same type of technology, it’s just a littledifferent in terms of the positioning and that type ofthing that is done. With advancements we get newtechnology and that’s the information that is givensimilar to that of the beeper used in the U.S. versusKnott case, it’s where, in fact, that-- in the Knott casewhere the drum was, in this case where the vehicle is.

And what we have is that Detective Laffin observesthe vehicle in and around the area, he then learnsabout the burglary, the tracker had been -- the livetracking had been turned off for a period of time untilsuch time as it was determined that there was a crimethat was committed. At that point in time Detective

App. 76

Pierce testified that later in that day they did utilize,later that morning, the GPS live tracking to

[p.78]

locate again the vehicle. That vehicle was located at aconstruction site, a school construction site, thedetectives were sent to that location, the live trackingwas stopped once they were there and able to makevisual observation of that vehicle.

So, really at issue here and I think the crucialissues with respect to this particular case are whathappened in terms of the GPS notification alerting tothe Defendant’s vehicle being in the particular area ofRiverwood Road on the morning of, very early morninghours of April 5th.

I suggest to the Court that that inevitably wouldhave been -- the burglary inevitably would have beendiscovered because the alarm did go off and the policereceived an alarm to that location, Advanced Program.Detective Laffin noted that location had been opened interms of the door being open and pry marks havingbeen there as well. He had seen the vehicle from thatarea, relying upon the instructions from DetectivePierce that the vehicle was in that particular area.They then utilized the GPS tracker only for purposes ofrelocating the vehicle that day, once they establishedwhere the vehicle is all the other observations that theymake that day are done, in large part, with visualsurveillance, either in a stationary mode while theDefendant was at the work site or in a mobile modewhile they were following him around to the differentlocations. Both to two different home location as well asthree different pawn shops

App. 77

[p.79]

that were subsequently the subject of search andseizure warrants that the Court has before the Court.

I suggest to the Court that there is no reasonableexpectation of privacy, officers -- there’s no expectationof privacy in traveling on the public roads in HowardCounty or any other particular place. And that’s what,in fact, this information is, it’s merely transmitting theinformation as to the vehicle’s location. And if theCourt looks at both Knott as well as Stone versus Statethat’s exactly what the Court of Special Appeals said.

In Stone versus State, which is 178 Md App 428, a2008 case, the court in determining whether or not thetrial had erred in limiting defense counsel’s cross-examination said it wouldn’t have mattered because itwouldn’t have been a problem for the police to havedone the tracking that they did with the GPS trackingdevice in question here. The GPS tracking device inthat case;

“. . . So far as simply the next generation of trackingscience and technology from the radio transmitterbeeper used in Knott, to which the Knott FourthAmendment analysis directly applies. The appellantand his wife did not have a reasonable expectation ofprivacy in their location as they traveled on publicthoroughfares. With the transmission from the GPSdevice Trooper Backtell was able to locate JoanneStone’s pickup truck, that she was driving it on apublic road, where she had no

App. 78

[p.80]

reasonable expectation of privacy and where she couldbe seen by the trooper or anyone else.”

And that is from page 448, Your Honor, of theopinion in the Court of Special Appeals case in Stone.

The court ruled;

“. . . The appellant did not have a reasonableexpectation of privacy in his location in the public andmore specifically in a vehicle riding on public roads andtherefore evidence about the use of the GPS device andthe cell phone ping information merely to locate himpublic, which just as well could have been done byhuman visualization, though less efficiently, wasrelevant to the appellant’s Fourth Amendment basedsuppression motion.”

And that’s it, again, 449 and 450 of Stone versusState.

And I suggest to the Court that many other courtsthroughout the country, perhaps with very fewexceptions like Maynard, have held, in fact, that thereis no expectation of privacy by use of a GPS tracker.And have claimed that is not a search of the vehicle byplacing the GPS unit under the carriage of the vehicle.

And with respect to that, Your Honor, I would citeto U.S. versus Juan Pineda-Moreno, a 9th Circuitopinion from just January of this year, indicating thatagents did not violate defendant’s Fourth Amendmentrights by attaching GPS unit to his

App. 79

[p.81]

vehicle.

And U.S. versus Bernardo Garcia, 474 F 2nd --excuse me, F 3rd, 994, a 2007 case in which, again, thecourt reasoned that the device did not effect the car’sdriving qualities, did not draw power from the vehicle,did not alter the car’s appearance and was not anyseizure whatsoever to have that installed.

And lastly, Your Honor, U.S. versus Jose AcostaMarquez, 605 F 3rd, 604;

“. . . Under the Fourth Amendment police wererequired to obtain a warrant to place a GPS trackingdevice, with magnetic strips, on the truck thedefendant drove in order to record it’s travels.”

Additionally, Your Honor, there would be U.S.versus Edward Isis Nunez, out of the U.S. DistrictCourt for the Middle District of Pennsylvania, a July2010 case in which, again, the court indicated that;

“. . . Consistent with the Supreme Court’s reasoningin Knott, the court found that the government’sconduct in attaching a GPS device to defendant’svehicle did not constitute a search under the FourthAmendment.”

And so those would be --

THE COURT: Can I trouble you for a copy of thePennsylvania case?

MS. MURPHY: Yes, Your Honor, I have -- Iapologize.

App. 80

[p.82]

THE COURT: Thank you, very much.

MS. MURPHY: You’re welcome.

Your Honor, with respect to further argument, youknow, I think one of the things that’s clear in this caseis, that the observations and the use of the GPSspecifically in this case were all -- the relevant evidenceis all indicating that the vehicle was traveling on publicroads in the Riverwood Road area in Columbia, as hetravels to his two different locations of residence and ashe travels to the pawn shops, all of those are areas thatare public roads. And he would have no expectation ofprivacy to believe that no one would be able to see himor view him conducting what business he wasconducting on those dates in question.

THE COURT: Alright, thank you, very much.

I appreciate the Defense’s attention to currentdevelopments in the law and legal precedents, albeitprecedents from another jurisdiction. And, of course,this area has gotten a lot of attention lately because ofthat case and the Pennsylvania case. But, and calledme old fashioned, but I believe that the Stone case isthe Maryland case that’s on point and that is supportedby U.S. V Knott, for the proposition that the firstquestion is, is there a reasonable expectation of privacythat society is prepared to recognize under the Katztest. And Stone stands for the proposition that a persontraveling in an automobile on a public thoroughfare hasno reasonable expectation

App. 81

[p.83]

of privacy in his movements from one place to another.And that by driving on the public roads one voluntarilyconveys, to anyone wishing to look, his progress and hisroute and therefore there’s no reasonable expectationof privacy and therefore there’s no Fourth Amendmentimplications. It is not a search under the FourthAmendment to install this device magnetically to thebottom frame of the automobile.

So, I find that the Defendant has no reasonableexpectation of privacy in his location as he travels onthe public thoroughfare and that the installation of theparticular device to monitor his progress on the publicroads was not a search. Therefore his motion tosuppress would be denied.

MS. DEBOISSIERE: Thank you for hearing us,Your Honor. And if I may fine tune some of the -- ormaybe we should wait until -- I don’t know who ourtrial judge will be, maybe it’s --

THE COURT: I think it is me.

MS. DEBOISSIERE: Oh, it is you on the 30th?

THE COURT: I’m told it’s me.

MS. DEBOISSIERE: Okay. Well, then maybeaddress some -- may I approach Ms. Murphy whetherwe should address the motions in limine now?

THE COURT: Sure.

MS. DEBOISSIERE: Your Honor, we agree to waituntil Monday morning on the 30th to -- by then we may

App. 82

have resolved how we might handle certain evidenceand --

[p.84]

MS. MURPHY: Tuesday, I believe, isn’t it?

THE CLERK: Tuesday.

MS. MURPHY: Tuesday.

THE COURT: Is it the 30th?

MS. DEBOISSIERE: Oh, 30th is a Tuesday, you’reright.

THE CLERK: Tuesday, yes.

MS. DEBOISSIERE: Okay. So, we will need, Ithink, a short period of time of the Court’s attentionbefore picking a jury with regard to minor little --

MS. MURPHY: I think we could --

MS. DEBOISSIERE: -- parts --

MS. MURPHY: -- pick the jury and perhaps take upthe motions in limine if any.

THE COURT: Alright. Well, thank you, very muchladies for a very thoughtful, professional presentation,I appreciate it.

MS. MURPHY: Thank, Your Honor.

MS. DEBOISSIERE: Thank you also, Your Honor .

END OF PROCEEDINGS

App. 83

COURT REPORTER’S CERTIFICATE

I hereby certify that I reported verbatim by digitalaudio recording the proceedings attached hereto in thecase of State vs. Kelly, Case No. 13-K-10-050346 heardin the Circuit Court for Howard County, Maryland, onFriday, November 19, 2010, before the HonorableTimothy McCrone were recorded by means of digitalaudiotape.

I further certify that the proceedings weretranscribed by me to the best of my ability in acomplete and accurate manner, and page numbers onethrough eighty-four constitute the official transcript ofthe proceedings.

I further certify that I am neither a relative to noran employee of any attorney or party herein, and thatI have no interest in the outcome of this case.

In Witness Whereof, I have affixed my signaturethis 8th day of February, 2011.

/s/ Gary Michael Gary Michael, TranscriberOfficial Court Reporter

App. 84

APPENDIX D

IN THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY,

MARYLAND

Case Number: 02-K-10-000928

[Filed October 15, 2010]_________________________________STATE OF MARYLAND, )

)vs. )

)WESLEY TORRANCE KELLY, )

Defendant. )________________________________ )

[Excerpts of]OFFICIAL TRANSCRIPT OF PROCEEDINGS

MOTIONS HEARING

Anne Arundel, MarylandFriday, October 15, 2010

BEFORE:

HONORABLE PAMELA L. NORTH

APPEARANCES:

For the State:

KAREN LYNETTE ANDERSON-SCOTT,ESQUIRE

App. 85

For the Defendant:

WILLIAM H. COOKE, ESQUIRE

Electronic Proceedings Transcribed by: Dawn South

HUNT REPORTING COMPANYCourt Reporting and Litigation Support

Serving Maryland, Washington, and Virginia410-766-HUNT (4868)

1-800-950-DEPO (3376)

* * *

[p.53]

THE COURT: Sir -- oh, I’m sorry.

MS. ANDERSON-SCOTT: I’m sorry.

THE COURT: Sir, I’m ordering you not to discussyour testimony with anyone.

THE WITNESS: Okay.

MS. ANDERSON-SCOTT: Your Honor, I don’t haveany further witnesses on this issue.

MR. COOKE: I have nothing further as well. I’ll just--

THE COURT: Okay. Well let’s --

MR. COOKE: -- make a few remarks.

THE COURT: -- excuse the police officer and thenwe’ll hear you.

(Pause.)

THE COURT: Okay.

App. 86

MR. COOKE: All right.

THE COURT: So now that we’re in this posture doyou want the State to go first because we’re just lookingat the validity of the GPS?

MR. COOKE: No, I actually think I -- I don’t mindgoing first.

THE COURT: Okay.

MR. COOKE: And I recognize that there are a lot ofthings that are out of order in this case through I don’tthink anyone’s particular fault, but there are a couple

[p.54]

unique issues that I think were never anticipated tothe time the Constitution was written at the time ofEnglish common law was developing, et cetera.

The technology that we’ve had in the last couple ofyears since really the ‘90s has really changed really oldquestions and made them difficult to answer.

Essentially what my argument was and is in thiscase is that the police used the GPS. Now it was illegal.It was essentially a search of my client’s property. Andthey can say well, we attached it on the outside, wedidn’t have to do anything to his car. If I go up tosomeone’s car, if anyone goes up to someone’s car andstarts placing things on it there’s a crime for that andit’s called tampering --

THE COURT: Uh-huh.

MR. COOKE: -- that, you know, essentially justcan’t go up and play with another person’s property, letthe air out of the tires and attach things, et cetera.

App. 87

You know I think it’s interesting that the detectivemade the point that -- and that’s Detective Pierce Ibelieve -- that he just couldn’t go and attach one ofthese things to anyone’s car, the office would have towrite up essentially a statement of probable cause --

THE COURT: Uh-huh.

MR. COOKE: -- except there wouldn’t be a judge

[p.55]

deciding whether or not it was valid it would be himdoing it. So essentially he is writing his own searchwarrants in this case and just making arbitrarydecisions about who he’s going to attach a trackingdevice to and who he’s not.

And I think the -- that’s why the D.C. Court ofAppeals -- and admittedly there is mixed record in thiscase -- but I think that’s ultimately why the SupremeCourt and I’m predicting here is going to say that thistype of behavior is not right.

THE COURT: Uh-huh.

MR. COOKE: I think the State to some extent thatsince it’s not well, I don’t want to speak for the State --but I think --

MS. ANDERSON-SCOTT: Thank you.

MR. COOKE: -- that argument is fairly strong, butthe question becomes what happens next? Because theState’s going to argue I think that well (a), they hadvisual surveillance on Mr. Kelly, but I think that visualsurveillance is in many ways intertwined, tangled upwith the GPS surveillance, and they would not have

App. 88

had the visual surveillance on Mr. Kelly if they wouldhave had but for the illegal GPS surveillance.

THE COURT: Uh-huh.

MR. COOKE: The State is then going to argue I’msure that Judge, even if they violated his rights indoing

[p.56]

the illegal surveillance you can’t suppress what theysaw.

THE COURT: Uh-huh.

MR. COOKE: And I guess my question is, then whatremedy does Mr. Kelly have? What remedy doesanyone have? Because then even if we establish thatyou can illegally attach a GPS unit onto someone’s car,the police can always come into court and say, yeah,but I saw him do it, I saw him in the -- and really thereis no remedy whatsoever for the violation of theConstitution of the law in that regard.

THE COURT: But in criminal court and not civilisn’t that true with so many things? Let’s say I’marrested this afternoon and my arrest is completelyillegal --

MR. COOKE : Uh-huh.

THE COURT: -- but they seize nothing, I make nostatements, what good does it do me to come into courtand complain that I was illegally arrested --

MR. COOKE: Well --

THE COURT : -- unless I’m going to sue civilly?

App. 89

MR. COOKE: And I guess Mr. Kelly would haveperhaps civil rights here in terms of a civil suit, andthat used to be the remedy that you would traditionallyhave no violations of the Fourth Amendment. I guess Ican see the Court’s point. There’s nothing that theCourt can legally suppress here and therefore there’snothing it can be do even if it is illegal.

[p.57]

And I just would say that, you know, at least in thecase where they arrest you illegally you’re at least gonethat day. In Mr. Kelly’s case, because of --

THE COURT: What’d you say, at least when you --

MR. COOKE : At least when they arrest you -- ifYour Honor is arrested illegally --

THE COURT: Yeah.

MR. COOKE : -- you go home. You’re not being heldfor, you know, 10, 15 years on some charge.

THE COURT: Okay.

MR. COOKE: In this case their illegal search of Mr.Kelly is going to result in the production of evidencethat’s going to be used against him that potentially cantake away his freedom for a significant period of time.

And I guess as Your Honor has a question there ormaybe I’m not explaining this correctly, but --

THE COURT: But I could go to jail for 15 years.This is my example.

MR. COOKE: Okay.

App. 90

THE COURT: Let’s say this afternoon I walk out ofthe courthouse and the police come and they handcuffme and they arrest me for robbing a bank yesterday.

MR. COOKE: Okay.

THE COURT : And let’s say it’s a mistakenidentification. I didn’t rob the bank but I get convicted.

[p.58]

MR. COOKE: Okay.

THE COURT: So I’ve been arrested illegally, let’ssay they have no probable cause whatsoever.

MR. COOKE: Okay.

THE COURT: And I’ve got this illegal arrest butthere’s nothing to suppress so I go to jail for 15 yearsunfortunately, but what’s my remedy in the criminalcourt?

MR. COOKE: Well, in that case it wouldn’tnecessarily be an illegal -- an illegal arrest --

THE COURT: But I’m-- that’s part of my factualscenario, that I have an illegal arrest. I’m telling youthey just picked up the first person off the sidewalkthey could that was closest to the bank and thathappened to be me, then I come in, I try to defendmyself but I lose, so I could go to jail for a very longtime even though I was arrested illegally. And I’m justwondering what difference does it make if I wasarrested illegally? How can I use that to my benefit?

MR. COOKE: I guess I’m trying to think of -- I thinkthe fact that the police just decided to frame someoneyes, you would have a civil remedy, you would have a

App. 91

remedy in court in terms of arguing that you were notguilty, but there is nothing to suppress --

THE COURT: Yeah, but it doesn’t work --

MR. COOKE: -- there. I understand that.

[p.59]

THE COURT: Right. There’s nothing to suppress.

MR. COOKE: Yeah. And you know, I think thereought to be a remedy though. I think when the policedo something --

THE COURT: Uh-huh.

MR. COOKE: -- otherwise they can just trackanyone. I guess that’s my argument, they can trackanyone for any reason and they come into court and saythere’s no remedy.

THE COURT: Uh-huh.

MR. COOKE: And the remedy ought to be thethrowing out the evidence --

THE COURT: Uh-huh.

MR. COOKE: -- and saying, you know, in this caseyou shouldn’t be allowed to testify to what you sawbecause what you saw is a direct result of --

THE COURT: Uh-huh.

MR. COOKE: -- of your illegal acts.

THE COURT: Uh-huh.

MR. COOKE: And so you can’t use that protection.And I recognize that it’s not an argument that has

App. 92

support from the court, and the State again is going thecite the Gibson case that basically says tough luck, butI think this case is different because unlike Gibsonthere’s not that -- there’s -- there are no great(indiscernible - 2:32:58)

[p.60]

factors, it’s in my view illegal activity witnessingsomething arrest --

THE COURT: Uh-huh.

MR. COOKE: -- and of course that -- witnessing thatillegal activity leads to the warrant, but the warrant atthis point suppress -- they got a shirt out of the car --

THE COURT: Uh-huh.

MR. COOKE: -- I’m more concerned about --

THE COURT: But they didn’t seize the bag?

MR. COOKE: I don’t think they got the bag.

MS. ANDERSON-SCOTT: They didn’t --

THE COURT: Okay.

MS. ANDERSON-SCOTT: -- they didn’t recoverthat.

MR. COOKE: So they have a shirt that allegedlybelonged to the store, but --

THE COURT: Okay.

MR. COOKE: -- I just think everything, you know,at a certain point there -- that everything ought to bedismissed and I --

App. 93

THE COURT: Okay. Let me just ask you onepreliminary question though. The beginning of yourargument is the illegality of the GPS placement.

MR. COOKE: Yes.

THE COURT: Is there any case law you could cite

[p.61]

for the authority that it’s illegal for them to put theGPS on his car?

MR. COOKE: Not the Maryland one, but I think theD.C. Court of Special -- the D.C. Court of Appeals --

THE COURT: -- Okay.

MR. COOKE: -- I think -- and again, as I said, it’snot resolved law, I but I think the idea that essentiallyyou can put GPS on anyone. It’s not so much I havecase law supporting it, but I think it’s just the fact thatthey obviously have some criteria, that they recognizethey just cant do this to anyone.

THE COURT: Uh-huh.

MR. COOKE: And so what they’re really doing isthey’re writing their own internal search warrants forwho it goes on and who it does not, and I think becauseit’s so intrusive --

THE COURT: Uh-huh.

MR. COOKE: -- that there ought to be some judicialoversight of that, there ought to be a complete judicialoversight of that.

App. 94

So I don’t have any Maryland case law that saysthat what they did is per se illegal, but I think it is.

THE COURT: Uh-huh.

MR. COOKE: And I think there will be.

THE COURT: Okay, thank you. I’m going to deny.

[p.62]

I just need something. I need some case, some law,something that says that it would be illegal for thepolice under these circumstances to put the GPS uniton the truck.

MR. COOKE: Uh-huh.

THE COURT: And I feel like without that I can’ttake any next step toward the conclusion that you wantto reach, although I certainly sympathize with yoursituation. It seems like just sort of as an averageperson would really be -- feel that that’s personal upfront you might say to have something placed on thecar without their knowledge and for someone to beaware of their movements in society seems, you know,a lit suspect, but without having any law to say thatthat’s the case, and my understanding is there is nowarrant requirement for the GPS, so if there’s nowarrant requirement and they didn’t have a warrant Idon’t see a problem under current law, so I’m going todeny your motion.

MR. COOKE: All right.

THE COURT: Okay?

MS. ANDERSON-SCOTT: Thank, Your Honor.

App. 95

MR. COOKE: All right.

THE COURT: Do you want your copy of the warrant back?

MS. ANDERSON-SCOTT: Could I?

(At 2:35p.m., proceeding concluded.)

[p.63]

CERTIFICATE OF TRANSCRIBER

I hereby certify that the proceedings in the matterof State of Maryland versus Wesley Torrence Kelly, 02-K-10-000928, heard in the Circuit Court for AnneArundel County, Maryland, on October 15, 2010, wererecorded by means of electronic sound recording.

I further certify that, to the best of my knowledgeand belief, page numbers 1 through 62 constitute acomplete and accurate transcript of the proceedings astranscribed by me.

I further certify that I am neither a relative to noran employee of any attorney or party herein, and thatI have no interest in the outcome of the case.

In witness whereof, I have affixed my signature this7th day of February, 2011.

/s/ Dawn South Dawn South