April 25, 2014 – It was legal for police to install a GPS device on Scott Oberst’s car without a warrant in order to track his whereabouts, even though it’s illegal now. Thus, an appeals court upheld a decision to deny Oberst’s motion to suppress evidence.

Kenosha police were investigating Oberst for illegal drug activity. In July 2011, they placed a GPS device on his car while it was parked in a public parking lot. Police used the data to track his movements, and gathered evidence to bust him on drug crimes.

At the time police affixed the device and tracked Oberst, it was not illegal to do so. Wisconsin search and seizure law, which closely follows federal constitutional law, allowed police to attach and track suspects with GPS devices while the car was in public view. Police relied on a state appeals court case decided in 2009.

The police action did not require a warrant, a state appeals court had ruled in 2009, because the action did not constitute an actual “search.” In 2012, however, while Oberst’s case was pending, the U.S. Supreme Court decided U.S. v. Jones.

The Jones court ruled that installing GPS devices on cars to track a person’s movements is a “search” under the Fourth Amendment and requires a warrant.

In light of Jones, Oberst filed a motion to suppress the evidence that police obtained from the GPS device, which allowed them to pinpoint Oberst’s drug activity. The circuit court agreed that Jones required the police to secure a warrant for GPS tracking.

But the circuit court said suppressing the evidence was not appropriate, because police reasonably relied on existing Fourth Amendment precedent when they took the action.

In State v. Oberst, 2013AP1910-CR (April 23, 2014), a three-judge panel for the District II Wisconsin Court of Appeals affirmed, concluding that an exception applied.

That is, police had relied in good faith on binding appellate precedent, which allowed them to place GPS devices on cars in public view without a warrant at the time.

“The good faith exception to the exclusionary rule applies in this case, and the trial court properly denied Oberst’s motion to suppress,” wrote Judge Paul Reilly.

Related Cases

With Warrant, Police Can Use GPS Device to Monitor Criminal Suspect More Than Five Days – WisBar News, July 22, 2012 (Wisconsin Supreme Court)

GPS Tracking: U.S. Supreme Court Lays Foundation for Future Fourth Amendment Cases – WisBar InsideTrack, Feb. 15, 2012 (U.S. Supreme Court)

Advanced ‘Real Time’ GPS Device Okay to Monitor Subject, Appeals Court Concludes – WisBar News, Aug. 16, 2011 (Wisconsin Appeals Court)