Zachary Bolitho (Campbell University – Norman Adrian Wiggins School of Law) has posted Specifically Authorized by Binding Precedent Does Not Mean Suggested by Persuasive Precedent: Applying the Good Faith Exception after Davis v. United States on SSRN.
Here is the abstract:
A number of federal circuit courts have recently refused to apply the Fourth Amendment exclusionary rule to evidence obtained from GPS vehicle trackers that were installed and monitored without a warrant before United States v. Jones. Those courts have largely reached that result by invoking Davis v. United States, which held the exclusionary rule to be inapplicable where an officer relied on binding appellate precedent that was later overruled. More specifically, the circuit courts have viewed the Supreme Court’s 1983 decision in United States v. Knotts (addressing “beeper” tracking devices) as binding precedent that specifically authorized the warrantless installation and monitoring of GPS vehicle trackers prior to Jones.
The Fourth Circuit’s decision in United States v. Stephens is representative of the “Knotts is binding precedent under Davis approach” that most circuits have used to resolve the exclusionary rule question. This Article, therefore, uses Stephens as a vehicle for analyzing that approach. This Article argues that circuit court decisions like Stephens have stretched the holding of Davis and interpreted Knotts in a way that contradicts Supreme Court precedent. And, the circuit courts have done so for no good reason — they could have reached the same result (i.e., refusing to exclude the GPS vehicle tracker evidence) by working through the general good faith analysis. Instead, most of the circuit courts have chosen to resolve the exclusionary rule issue by defining the terms “specifically authorized” and “binding precedent” to mean “suggested” and “persuasive precedent.” In the process, the courts have converted the intentionally narrow holding of Davis into a broad decision with unknown boundaries.