Global Positioning System (GPS) technology, in addition to being a convenience to people who use it voluntarily on their mobile devices, can also be a useful tool in an investigation. But in 2012, the U.S. Supreme Court concluded that law enforcement authorities installing a GPS device on a vehicle to track the vehicle was a search requiring a warrant or an exception to the warrant requirement. Prior to that decision (U.S. v. Jones), the law was not settled that attaching such as a device was search. In the recent Tennessee Court of Criminal Appeals decision in State v. Phifer, M2013-01401-CCA-R3-CD (Tenn.Crim.App. 9-23-2014), the appellate court declined to apply a good faith exception where authorities installed a tracking device on a suspect vehicle prior to the ruling in U.S. v. Jones.

In the Phifer case, the Defendant was convicted of aggravated burglary, based in part on evidence obtained as the result of the warrantless installation of a GPS tracking device on a vehicle. At the time the police were conducting their investigation and installed this device, it was arguably a reasonable and permissible investigatory technique not considered a ‘search’ and not requiring a warrant. The state argued that prior to the Jones ruling, GPS tracking devices used in criminal investigations were reasonably considered permissible. Therefore, the police using one in this case were acting in good faith and had no reason to believe they were conducting an unconstitutional search. The state argued what is known as the ‘good faith’ exception to the exclusionary rule. As the police reasonably believed, based on existing law at the time, they were acting within their authority, application of the exclusionary rule would not serve its intended purpose of deterring impermissible investigative practices, and should not be applied.

The trial court agreed with the state’s argument and admitted the evidence under a good faith theory. The Court of Criminal Appeals disagreed, noting that though a good faith exception to the exclusionary rule expressly exists under federal law, the Tennessee Supreme Court has not adopted it. The Court of Criminal Appeals declined the state’s request to adopt the rule, concluding that the decision to adopt such a rule would be a decision for the Tennessee Supreme Court and not for the Court of Criminal Appeals or a trial court. The Court of Criminal Appeals determined the trial court was in error in not excluding the evidence obtained as a result of the GPS tracking and reversed the conviction, remanding for a new trial.

It is possible and maybe even likely that the state will ask the Tennessee Supreme Court to review this case and consider whether to adopt a good faith exception to the exclusionary rule for this kind of circumstance. We will see.

For more information on the exclusionary rule in criminal cases, contact The Lanzon Firm.