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Warrantless GPS tracking before Jones was a fishing expedition, and, “[i]n this case, the DEA agents had their fishing poles out to catch Lee.” The exclusionary rule had to apply, and the good faith exception would not be applied for lack of binding precedent in the circuit. United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. May 22, 2012):

Finally, the "purpose and flagrancy of the official misconduct" weighs against attenuation. Brown, 422 U.S. at 604. This last factor is often the "most important," United States v. Shaw, 464 F.3d 615, 630 (6th Cir. 2006), because "[t]he primary focus of attenuation analysis is whether or not the deterrent purpose of the exclusionary rule is served by suppression," United States v. Gray, 491 F.3d 138, 155 (4th Cir. 2007) (Wilkinson, J.). Although the DEA agents' misconduct was not flagrant, the Sixth Circuit has explained that police officers act with an unlawful purpose when they perform an "investigatory" search, that is, "when officers unlawfully seize a defendant "in the hope that something might turn up.'" United States v. Williams, 615 F.3d 657, 670 (6th Cir. 2010) (quoting Brown, 422 U.S. at 605); see also Shaw, 464 F.3d at 631 (noting that "Brown made it clear that the requisite "quality of purposefulness' can be demonstrated when the [misconduct], in design and execution, is investigatory in nature"). The Seventh Circuit agrees that an illegal search has an unlawful purpose when it is "undertaken in an effort to advance the investigation or to embark on a fishing expedition." United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003).

In this case, the DEA agents had their fishing poles out to catch Lee. Admittedly, the agents did not intend to break the law. But they installed a GPS device on Lee's car without a warrant "in the hope that something might turn up." Williams, 615 F.3d at 670. (quoting Brown, 422 U.S. at 605). When suspicious behavior did, in fact, turn up, they alerted the Kentucky State Police. By doing so, they set in motion a chain of events that ended with Lee's arrest. Their unlawful purpose means that the third attenuation factor also weighs in favor of suppression.

Moreover, the Gross panel pointed out that allowing "post-hoc rationalization" by police would create the "perverse" incentive for police officers to detain any individual going about their daily routines in the hope of turning up an outstanding warrant. Gross, 662 F.3d at 405. The same perverse incentive is present here: if Lee's seatbelt violation were an intervening circumstance, police could install tracking devices with impunity so long as they waited until the subject of their surveillance commits a minor traffic violation. Accord Maryland v. Wilson, 519 U.S. 408, 423 (1997) (Kennedy, J., dissenting) (describing the "almost countless circumstances" that allow the police to stop a vehicle). At that point, the police could stop them and search for evidence of illegal activity. Thus, the Court agrees with Judge Ingram that the police misconduct was guided by an impermissible purpose. See R. 33 at 16. Because none of the three factors favor attenuation, the Court must suppress all evidence that derived from Metzger's illegal search, including the traffic stop, the search of Lee's car, and his subsequent confession.

. . .

This Court is also not the first district court to confront the question of whether to apply the good-faith exception after Jones. In the Ninth Circuit, where binding circuit precedent authorized warrantless GPS monitoring, three district courts have applied the good-faith exception to defeat the defendant's motion to suppress. United States v. Aquilar, No. 4:11-cr-298-BLW, 2012 WL 1600276, at *2 (D. Idaho May 7, 2012); United States v. Leon, No. CR 09-00452, 2012 WL 1081962, at *3 (D. Haw. Mar. 28, 2012); United States v. Nwobi, No. CR 10-952(C)GHK-7, 2012 WL 769746, at *3 (C.D. Cal. Mar. 7, 2012). A district court in the Eighth Circuit did the same, also holding that the officer's reliance on binding circuit precedent triggered the good-faith exception. United States v. Amaya, No. CR-11-4065-MWB, 2012 WL 1188456, at *7-8 (N.D. Iowa Apr. 10, 2012). But in the Third Circuit, where there was no appellate ruling on warrantless GPS tracking, one district court refused to extend the good-faith exception. United States v. Katzin, No. 11-226, 2012 WL 1646894, at *9-10 (E.D. Pa. May 9, 2012). Applying the good-faith exception in the absence of binding appellate precedent would, in that court's eyes, "effectively eviscerate the exclusionary rule." Id. at *9. If law enforcement could "rely on non-binding authority, particularly in the face of other, contrary non-binding authority," officers would "beg forgiveness rather than ask permission in ambiguous situations involving ... basic civil rights." Id.

See Wired.com: Pot Prosecution Goes Up in Smoke Due to Warrantless GPS Tracking by Kim Zetter.

Prosecutor’s opening statement reference to defendant’s refusal to consent to a search was reversible error in a possession case where the defendant denied knowledge a gun was in the car. Rose v. State, 2012 Fla. App. LEXIS 8026 (Fla. 1st DCA May 22, 2012):

We hold that the trial court erred by overruling Appellant's objection and that this error was not harmless here. See Bravo v. State, 65 So. 3d 621 (Fla. 1st DCA 2011) (reversing conviction where trial court allowed impermissible testimony regarding defendant's refusal to consent to search of home without a warrant); Gomez v. State, 572 So. 2d 952, 953 (Fla. 5th DCA 1990) (holding "[c]omment on a defendant's denial of permission to search a vehicle, although not exactly the same thing as comment on a defendant's right to remain silent, since the Fourth Amendment is involved rather than the Fifth, constitutes constitutional error of the same magnitude.") (footnote omitted); see also Ramet v. State, 209 P.3d 268 (Nev. 2009) (holding that state may not introduce evidence that defendant refused to consent to warrantless search, as "defendant's invocation of his Fourth Amendment right cannot be used as evidence of a crime or consciousness of guilt," and citing Gomez and other federal and state decisions, but recognizing that error may be harmless).

Where waving a weapon was reported to 911, handcuffs during a Terry stop and frisk was reasonable and not an arrest. United States v. Moore, 2012 U.S. Dist. LEXIS 71023 (E.D. Mich. May 22, 2012):

Defendant argues his seizure ripened into an arrest the moment he was handcuffed and thus required probable cause. (Def.'s Mot. at 6.) This Court disagrees. The Sixth Circuit considered a similar argument in Houston v. Clark County Sheriff Deputy John Does 1-5, 174 F.3d 809, 814 (6th Cir. 1999). In Houston, the court observed that "the use of handcuffs [does not] exceed the bounds of a Terry stop, so long as the circumstances warrant that precaution." Id. at 815 (citing cases). It concluded that, because the defendant officers reasonably believed that the individuals stopped had been involved in a shooting, "their use of handcuffs and their detention of the men in the [police] cruisers were both reasonably necessary to protect the officers' safety during the investigation ... [and] were therefore 'reasonably related' to the investigation that warranted the initial stop." Id. The same is true here. Based upon the facts provided to them from the in-person interview with the 911 caller, the officers that initially stopped Defendant had a reasonable belief that he was intoxicated, armed, and dangerous. Thus, their use of handcuffs before conducting a pat-down for weapons was reasonably necessary to protect their safety during the investigation that warranted the initial stop.

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