### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 14

- 1981
U NITED S TATES OF A MERICA , Plaintiff

- Appell ee ,

v.

D WAN R ASHID T AYLOR , Defendant

- Appell ant

.

____________________ Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 1:12

- CR

- 00042

- 001

— Jane E. Magnus

- Stinson , Judge

.

____________________
A RGUED D ECEMBER 17, 2014

— D ECIDED J ANUARY 14 , 2015

____________________

Before W ILLIAMS , S YKES , and H AMILTON , Circuit Judges

. P ER C URIAM

. Dwan Taylor appeals the denial of his motion to suppress drugs and guns that the police found in his storage locker pursuant to a search warrant. Indianapolis p olice lea rned the location of the storage locker by monito ring a Global Positioning System ( “ GPS ” ) unit that they attached to his car without a warrant in 2011 . That was before the Supreme Court held that attaching a GPS device to a car for purposes of gathering in formation was a search2 No. 14

- 1981

under the Fourth Amendment. See United States v. Jones , 132 S

. Ct. 945 (2012). Because the officers used the GPS monitor in objectively reasonable reliance on binding appellate precedent in effect at the time, the suppression motion was properly denied

.

I. Background In June 2011 Detective Sergeant Garth Schwomeyer of the Indianapolis Metropolitan Police Department received a tip that Taylor possessed cocaine and firearms. Schwomeyer checked Taylor ’ s criminal history and learned that he had been convicted in 1997 for possessing cocaine. Schwomeyer then conducted surveillance at an address in Indianapolis that was linked to Taylor and observed what he believed to be a drug deal. He did not recognize the peo ple involved, but when he ran the license plates of the ir cars, he disco vered that two cars were registered to men who also had been convicted of possessing or trafficking cocaine. Schwomeyer continued to investigate Taylor over the next three months. A confidential informant reporte d that Taylor was trafficking kilogram quantities of cocaine, and a fellow officer told Schwomeyer that Taylor associated with cocaine traffickers. In addition, Taylor ’ s phone records reflected that his most frequent contact had been convicted in 2006 of d ealing cocaine. Based on Schwomeyer ’ s investigation, a deputy prosec utor for Marion County submitted a petition to the Marion County Superior Court in September 2011 requesting jud icial approval to attach a GPS unit to Taylor ’ s car for a period of 60 days. The petition stated that the GPS device would beNo. 14

- 1981 3

attached to the exterior of the car ( “ inside of a fender ” ) with

“ a magnet and/or straps
, ” that it would be installed and later removed “ while the vehicle was either in a public place or upon private propert y where members of the general public would have access to [the] vehicle , ” and that the device

“ would be powered either by an internal battery or by connecting [it] to the battery of the vehicle. ” In support of the petition, the deputy prosecutor submitted an affidavit from Schwomeyer describing his investigation and also an affidavit from Officer Chris Cavanaugh, who explain ed the opera tion of the GPS unit. O fficer Cavanaugh attested that the GPS device could collect location data at a specific interval (f or example, every four seconds) and that officers could later retrieve that data through the Internet “ by having the GPS tracking unit transmit its stored data. ”
A Marion County Superior Court judge granted the pet ition on these terms, and a GPS unit was a ttached to Taylor ’ s
car. About two weeks later, police learned from the GPS data that Taylor had traveled to a storage facility in Indianapolis. Schwomeyer spoke to both the manager and the owner of the storage facility and learned that Taylor rented a sto rage locker there. He went to the facility with a drug

- detection dog, and the dog alert ed just outside of Taylor ’ s locker. Schwomeyer then applied for a warrant to search the storage unit. In an affidavit submitted to the Marion County Superior Court, Sch womeyer described the investigation and stated that he had learned the location of Taylor ’ s storage locker through “ surveillance

. ” He did not mention that the surveillance involved GPS tracking of Taylor ’ s car. A different Marion Cou nty judge reviewed the warrant application and authorized a search of Taylor ’ s storage4 No. 14

- 1981

locker. The police searched the locker and found 752.61 grams of cocaine, four firearms, and digital scales. Taylor was charged in federal court with one count of po ssessing with intent to distribute 500 grams or more of a mixture or substance containing cocaine, 21 U.S.C. § 841(a)(1), (b)(1)(B)(ii), and four counts of possessing a firearm as a felon, 18 U.S.C. § 922(g). Taylor moved to suppress the storage

- locker evidence as the fruit of an unlawful search. He maintained that the warrantless tracking of his car via GPS violated the Fourth Amendment . He relied on the Supreme Court ’ s decision in Jones , which held that the installation of a GPS device on a car is a search for Fourth Amendment p urposes

. 132 S. Ct.
at 949. Taylor also argued that the search warrant was i nv alid because Schwomeyer had omit ted from the affidavit any reference to GPS track ing . (Taylor raised other arguments, but he has abandoned them on appeal.)

B ecause Jones was issu ed three months after the police tracked Taylor ’ s car via GPS , t he government opposed the suppression motion based on the good

- faith exception established in Davis v. United States , which held that the exclusionary rule does not apply “ when the police cond uct a search in objectively reasonable reliance on binding a ppe llate precedent. ” 131 S. Ct. 2419, 2434 (2011)

. Davis ’ s good

- faith exception applied , the government argued, because the police had reasonably relied on this court ’ s pre

- Jones decisions upholdi ng warrantless GPS tracking

. See United States v. Garcia , 474 F.3d 99 4 (7th Cir. 2007); United States v. Cuevas

- Perez , 640 F.3d 272 (7th Cir. 2011). T he go vernment also noted that the police offic ers had consult ed with a deputy prosecutor and reasonably relied on judicialNo. 14

- 1981 5

approval before installing and monitoring the GPS device. Finally, t he gov ernment maintained that the search warrant for Taylor ’ s storage locker was valid because Schwomeyer had not omitted any material fact in his warrant affidavit. Tay lor countered that reliance on Garcia and Cuevas

- Perez was not reasonable because the use of the GPS unit in this

case was more intrusive than in those cases. Unlike Garcia and Cuevas

- Perez , law enforcement here had “ asked for and received permission to en ter onto private property, to use the vehicle ’ s battery power, and to monitor Taylor ’ s vehicle for 60 days. ” The district court agreed with Taylor that Davis ’ s good

- faith exception did not apply but nonetheless denied Taylor ’ s motion to suppress on the gr ound that law e nforcement had reasonably relied on judicial authorization when using the GPS. The court explained that Garcia and Cuevas

- Perez were distinguishable because the GPS devices used in those cases did not draw power from the car ’ s battery, were not installed while the car was parked on private property, and did not track the car ’ s movement for 60 days. Thus, the court observed, “ law enforcement could not have objectively relied on Garcia and Cuevas

- Perez when the cases do not explicitly, or for t hat matter implicitly, authorize the specific actions taken here. ” But suppression was unwarranted, the court held , because the officers had obtained judicial authorization to use the GPS device and their reliance on that authorization was objectively reas on able. T he judge also explained that a pplying the exclusionary rule was not appropriate because the rule is meant to deter culpable conduct by law enforcement and th ere was no culpable conduct in this case

. Finally, t he judge rejected6 No. 14

- 1981

Taylor ’ s argument that the warrant was defective because Schwomeyer ’ s affidavit had omitted material facts. While Taylor ’ s case was still pending in the district court , we issued United States v. Brown , 744 F.3d 474 (7th Cir.), cert. denied , 135 S. Ct. 378 (2014) , which applied Davis ’ s good

- faith exception to the use of a GPS device to track a car in 2006 , before Garcia or Cuevas

- Perez were decided. The GPS device in Brown was installed with the consent of the car ’ s owner , but it was used to track a driver who had not consented. Id. at 476. Our decision in Brown confirmed that Garcia and Cuevas

- Perez were binding appellate precedent in this circuit establishing “ that installation of a GPS device, and the use of the location data it produces, are not within the scop e of the [F]ourth [A]mendment. ” Id. A nd even though the GPS tracking in Brown predated Garcia and Cuevas

- Perez , we concluded that there was nonetheless binding appellate precedent in 2006 for the purpose of Davis ’ s good

- faith exception: to wit, t he Supreme Court ’ s decisions in United States v. Knotts , 460 U.S. 276 (1983) (holding that law e nforcement ’ s monitoring of a signal from beeper is not a search), and United States v. Karo , 468 U.S. 705 (1984) (hol ding that installation of beeper is not a search if owner of the property o n which beeper is installed consents, even if beeper is used to track someone who did not consent). See Brown , 744 F.3d at 477

– 78.
Soon after we decided Brown , t he district judge issued a

“ Supplemental Entry ” that is at the center of this appeal. In that docket entry , the judge explained that Brown ’ s

“ characterizatio n of Garcia and Cuevas

- Perez ” differed from her earlier analysis and supported the government ’ s position that Davis ’ s good

- faith exception did apply to the GPSNo. 14

- 1981 7

tracking of Taylor ’ s car. Thus, the judge concluded, Davis ’ s good

- faith exception supplied additional support for denying Taylor ’ s motion to suppress. Taylor pleaded guilty to the drug

- trafficking crime, see § 841(a)(1), (b)(1)(B)(ii) , but preserv ed his right to appeal the district court ’ s order denying his motion to suppress. The government dismissed the remaining charges, and the judge sentenced Taylor to 150 months i n prison

.

II. Analysis Taylor contends that the district court erred by relying on Brown to conclude that Davis ’ s good

- faith exception applied to the GPS tracking of his car. He argues that Brown was not meant to state a “ blanket rule, ” but rested instead on the narrow ground th at the police had obtained the owner ’ s consent before attaching the GPS device to the car. We disagree. T he district court correctly concluded that Brown supports the application of Davis ’ s good

- faith exce ption here

. Brown makes clear that Garcia and Cuev as

- Perez are pre

- Jones binding circuit precedent hold ing that “ installation of a GPS device, and the use of the location data it produces, are not within the scope of the [F]ourth [A]mendment. ” Brown , 744 F.3d at 476. Brown also establishes that Davis ’ s go od

- faith exception more generally applies to pre

- Jones use of GPS devices to track a suspect ’ s car based on earlier Supreme Court precedent

. 1

1 E very other circuit to consider the question has applied Davis ’ s good

- faith exception to pre

- Jones GPS tracking by law enforcement. Some courts have relied on circuit

- level binding appellate precedent to8 No. 14

- 1981

It ’ s t rue that the GPS tracking at issue in Brown occurred before this court ’ s decisions in Garcia or Cuevas

- Perez , but we made clear that the result in Brown would have been the same (indeed, “ straightforward ” ) if the tracking had o ccurred post

- Garcia , as it did in this case. See id. at 477 . Th e fact th at law enforcement in Brown had obtained the consent of one of the car ’ s owners before attaching the GPS device does not change the outcome here ; the officers who used the GPS to track Taylor ’ s car could have reasonably relied on Garcia for the proposition that consent was not necessary. As Brown explained, Garcia held “ that installation of the GPS locator does not come within the [F]ourth [A]mendment because it does not interfere with the vehicle ’ s use in tran sportation. ” Id. Taylor argues that Davis ’ s good

- faith exception does not apply because law enforcement exc eeded the holdings in Garcia and Cuevas

- Perez by requesting judicial authorization to (1) track his car for up to 60 days; (2) attach the GPS unit to his car when park ed on private property; and (3) use the

car ’ s battery to power the GPS unit. Before address ing these arguments, we note that the record is scant regard ing how

do so. See United States v. Fisher , 745 F.3d 200 (6th Cir. ), cert. denied , 135 S. C t. 676 (2014) ; United States v. Smith , 741 F.3d 1211 (11th Cir. 2013), cert. denied , 2014 WL 2558149 ; United States v. Sparks , 711 F.3d 58 (1st Cir.), cert. denied , 134 S. Ct. 204 (2013 ); United States v. Andres , 703 F.3d 828 (5th Cir.), cert. denied , 133 S. Ct. 2814 (2013). Circuits without local precedent have relied on the Supreme Court ’ s pre

- Jones decisions. See United States v. Katzin , 769 F.3d 163 (3d Cir. 2014) (en banc); United States v. Stephens , 764 F.3d 327 (4th Cir. 2014); United States v. Aguiar , 737 F.3d 251 (2d Cir. 2013), cert. denied , 135 S. Ct. 400 (2014).No. 14

- 1981 9

the police actually installed the GPS device and where Taylor ’ s car was parked when they did so

. Taylor and the government agreed that an evidentiary hearing on the suppression moti on w as unneces sary. This deficiency in the record makes it a bit difficult to assess Taylor ’ s argument :

“ T he reasonableness of an official invasion of the citizen ’ s privacy must be appraised on the basis of the facts as they existed at the time that invasi on occurred. ” United States v. Jacobsen , 466 U.S. 109, 115 (1984); see Terry v. Ohio , 392 U.S. 1, 21

– 22 (1968); United States v. Brown , 64 F.3d 1083, 1086 (7th Cir. 1995); United States v. Hamilton , 591 F.3d 1017, 1022 (8th Cir. 2010); United States v. A lexander , 540 F.3d 494, 501 (6th Cir. 2008). Despite the un der developed record, we conclude that the district court c orrect ly reject ed Taylor ’ s arguments . We begin with his challenge to the length of the GPS monitoring and conclude that it is foreclosed by precedent. As noted in Brown , our decisions in Garcia and Cuevas

- Perez explained that the Supreme Court ’ s decisions in Knotts and Karo “ join tly show that tracking a car ’ s location by GPS is not a search no matter how long tracking lasts

. ” Brown , 744 F.3d at 477 (emphasis added). Moreover, Brown explained that even before Garcia and Cuevas

- Perez were decided, Knotts established that monitoring a GPS unit attached to a car is “ not within the [F]ourth [A]mendment ’ s scope. ” Id. at 478. Thus, it w as reasonable for law enforcement to rely on Knotts

— and by extension, Garcia and Cuevas

- Perez

— for the proposition that the length of the GPS monitoring is irreleva nt under the Fourth Amendment. And i f it was objectively reasonable for law enforcement to conclude that Knotts , which involved only brief tracking with a beep er, authorizes long

- term GPS10 No. 14

- 1981

tracking, then reliance on Garcia and Cuevas

- Perez was likewise objectively reasonable

. 2 We also reject Taylor ’ s argument that the GPS unit was not installed in good faith because law enforcement sought to power the device with the car ’ s battery. As an initial matter, Taylor does not explain how the manner in which the device wa s powered is relevant. Moreove r , as the gover nment points out, it appears from the record that the GPS device was not actually attached to the car ’ s battery but rather was self

- powered. Indeed, the petition for judicial authorization states that the device would be placed “ inside of a fender ” and attached with only “ a magnet and/or straps, ” and Schwomeyer attested that the GPS unit was installed by being “ placed on the underside ” of the car and

r emoved from the car ’ s “ exterior. ” This suggests that the device was not powered by the car ’ s battery. See U nited States v. Basinski , 226 F.3d 829 , 833 (7th Cir. 2000) (explaining that government bears burden of establishing by a preponderance of the evidence that warrantless search was justified). Finally, w e are not persuaded by Taylor ’ s contention that the installation of the GPS unit was at odds with binding

2 Indeed, circuits that did not have their own GPS precedent prior to Jones have uniformly concluded that Knotts is binding appellate prec edent for the purpose of Davis ’ s good

- faith exception, even when police officers ’ GPS monitoring lasted for a longer period of time. See United States v. Baez , 744 F.3d 30, 35 (1st Cir . 2014) (one year of GPS monitoring); United States v. Oladosu , 744 F.3d 36, 38 (1st Cir.) (47 days of GPS mon itoring), cert. denied , 135 S. Ct. 97 (2014); Aguiar , 737 F.3d at 262 (months of GPS monitoring)

.No. 14

- 1981 11

appellate precedent because law enforcement requested judicial authorization to install the device while the car was on private property. First, the record does not indicate exactly where the car was parked when the GPS unit was installed, and Taylor ’ s failure to submit evidence on this point is reason enough to reject the argument. See United States v. Oladosu , 744 F.3d 36, 38

– 39 (1st Cir. 2014). T he petition submitted to the Marion County Superior Court and the court ’ s order granting the peti tion b oth indicate that the GPS device would be attached when the car “ was either in a public place or upon private property where members of the general public would have access to [the] vehicle. ” The government explained at oral argument that the re ference to “ private property ” accessible to “ the general public ” meant only that the GPS unit could be attached when the car wa s in a shopping

- mall parking lot or comp arable l ocation

. This language d id not authorize entry into Taylor ’ s garage or his driveway. Taylor ’ s counsel did not dispute that characterization. A nd a t the time of these events, Garcia was binding appellate precedent for the proposition that attaching a GPS un it to a car parked on a public street was not a search. See Garcia , 474 F.3d at 996

– 97; Cuevas

- Perez , 640 F.3d at 273

– 74. T he privacy interest in a car parked in a shopping

- center parking lot or similar public location is no greater than the privacy interest in a car parked on a public street.

Because Davis ’ s good

- faith exception applies, we need not address the government ’ s alternative argument that su ppression was not appropriate because there was no culpable conduct by law enforcement. Nor do we consider the go vernment ’ s argument

— raised for the first time on appeal

—12 No. 14

- 1981

that the use of the GPS device to track Taylor ’ s car was lawful because it was supported by reasonable suspicion.
A FFIRMED

.