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Warrantless pre-Jones GPS monitoring was illegal, and the good faith exception would not be applied. United States v. Lee, 2012 U.S. Dist. LEXIS 71205 (E.D. Ky. March 22, 2012), adopted 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

The Court, on referral, considers a motion to suppress. In sum, this is a case about legitimate law enforcement objectives pursued in an illegitimate way. Eight months after receiving a tip that Defendant was engaged in marijuana trafficking, law enforcement attached a global positioning tracking device on Defendant's car, believing that the law allowed for the installation of that device without a warrant. That belief turned out to be wrong. Although the Supreme Court held that such a warrantless installation of a tracking device violates the Fourth Amendment after the investigation giving rise to this case, the exclusionary rule applies and requires the suppression of evidence obtained through the installation and use of that tracking device. Unfortunately, the cost of suppression is high—Defendant was found with large quantities of marijuana and made damaging admissions, which support a Class A felony marijuana trafficking charge. Defendant's criminal history category, previously determined by this Court to be the worst possible under the Guidelines, underscores Defendant's propensity for dangerous criminal behavior. Indeed, Defendant admitted to marijuana trafficking while on supervised release from a previous Judgment of this Court.

For a variety of reasons, however, the deterrence benefits of suppression outweigh its heavy costs. This is so primarily because no unequivocal precedent allowed for the warrantless installation of the tracking device. Instead, law enforcement interpreted various cases to support their decision not to seek a warrant. Of course, it is the business of the courts to interpret the law. In the absence of unequivocal precedent allowing for the government's installation of the tracking device, suppression is necessary. Thus, as more fully described below, having reviewed the evidence, briefs, and arguments submitted by counsel, the Court RECOMMENDS that the District Court GRANT the motion to suppress.

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