The Davis Good Faith Rule and Getting Answers to the Questions Jones Left Open

29 Pages Posted: 28 Feb 2013 Last revised: 22 Mar 2013

See all articles by Susan Freiwald

Susan Freiwald

University of San Francisco School of Law

Date Written: February 1, 2013

Abstract

The Supreme Court’s decision in United States v. Jones clearly established that use of GPS tracking surveillance constitutes a search under the Fourth Amendment. But the Court left many other questions unanswered about the nature and scope of the constitutional privacy right in location data. A review of lower court decisions in the wake of Jones reveals that, rather than begin to answer the questions that Jones left open, courts are largely avoiding substantive Fourth Amendment analysis of location data privacy. Instead, they are finding that officers who engaged in GPS tracking and related surveillance operated in good faith, based on the new exception to the exclusionary remedy that the Supreme Court laid out in the 2011 case of Davis v. United States. When courts narrowly apply of the Davis rule, they deny suppression remedies and avoid new Fourth Amendment analysis when binding appellate precedent specifically authorized the investigation. That approach will cease to be controlling as soon as courts consider surveillance investigations taking place after the Jones decision issued. When courts apply the Davis rule broadly, however, they deny the exclusionary remedy based on the culpability of the investigating officer or even more amorphous criteria. If broad applications persist, it will take a very long time indeed to get answers to the questions Jones left open. During that time, the constitutional right to privacy in location data will remain undeveloped and unprotected.

Suggested Citation

Freiwald, Susan, The Davis Good Faith Rule and Getting Answers to the Questions Jones Left Open (February 1, 2013). North Carolina Journal of Law and Technology, Forthcoming; Univ. of San Francisco Law Research Paper No. 2013-09. Available at SSRN: https://ssrn.com/abstract=2226139

Susan Freiwald (Contact Author)

University of San Francisco School of Law ( email )

2130 Fulton Street
San Francisco, CA 94117
United States
415-422-6467 (Phone)
415-422-6433 (Fax)

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