United States of America v. Dwan Rashid Taylor

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1981
U NITED STATES OF A MERICA,
Plaintiff-Appellee,
v.
D WAN RASHID T AYLOR ,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12-CR-00042-001 — Jane E. Magnus-Stinson, Judge.
____________________
A RGUED D ECEMBER 17, 2014 — D ECIDED JANUARY 14, 2015
____________________
Before W ILLIAMS, SYKES, and H AMILTON, Circuit Judges.
PER CURIAM . Dwan Taylor appeals the denial of his
motion to suppress drugs and guns that the police found in
his storage locker pursuant to a search warrant. Indianapolis
police learned the location of the storage locker by monitor-
ing a Global Positioning System (“GPS”) unit that they
attached to his car without a warrant in 2011. That was
before the Supreme Court held that attaching a GPS device
to a car for purposes of gathering information was a search

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2 No. 14-1981
under the Fourth Amendment. See United States v. Jones,
132 S. Ct. 945 (2012). Because the officers used the
GPS monitor in objectively reasonable reliance on binding
appellate precedent in effect at the time, the suppression
motion was properly denied.
I. Background
In June 2011 Detective Sergeant Garth Schwomeyer of the
Indianapolis Metropolitan Police Department received a tip
that Taylor possessed cocaine and firearms. Schwomeyer
checked Taylor’s criminal history and learned that he had
been convicted in 1997 for possessing cocaine. Schwomeyer
then conducted surveillance at an address in Indianapolis
that was linked to Taylor and observed what he believed to
be a drug deal. He did not recognize the people involved,
but when he ran the license plates of their cars, he discov-
ered that two cars were registered to men who also had been
convicted of possessing or trafficking cocaine.
Schwomeyer continued to investigate Taylor over the
next three months. A confidential informant reported that
Taylor was trafficking kilogram quantities of cocaine, and a
fellow officer told Schwomeyer that Taylor associated with
cocaine traffickers. In addition, Taylor’s phone records
reflected that his most frequent contact had been convicted
in 2006 of dealing cocaine.
Based on Schwomeyer’s investigation, a deputy prosecu-
tor for Marion County submitted a petition to the Marion
County Superior Court in September 2011 requesting judi-
cial approval to attach a GPS unit to Taylor’s car for a period
of 60 days. The petition stated that the GPS device would be

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No. 14-1981 3
attached to the exterior of the car (“inside of a fender”) with
“a magnet and/or straps,” that it would be installed and later
removed “while the vehicle was either in a public place or
upon private property where members of the general public
would have access to [the] vehicle,” and that the device
“would be powered either by an internal battery or by
connecting [it] to the battery of the vehicle.” In support of
the petition, the deputy prosecutor submitted an affidavit
from Schwomeyer describing his investigation and also an
affidavit from Officer Chris Cavanaugh, who explained the
operation of the GPS unit. Officer Cavanaugh attested that
the GPS device could collect location data at a specific
interval (for example, every four seconds) and that officers
could later retrieve that data through the Internet “by having
the GPS tracking unit transmit its stored data.”
A Marion County Superior Court judge granted the peti-
tion on these terms, and a GPS unit was attached to Taylor’s
car. About two weeks later, police learned from the GPS data
that Taylor had traveled to a storage facility in Indianapolis.
Schwomeyer spoke to both the manager and the owner of
the storage facility and learned that Taylor rented a storage
locker there. He went to the facility with a drug-detection
dog, and the dog alerted just outside of Taylor’s locker.
Schwomeyer then applied for a warrant to search the
storage unit. In an affidavit submitted to the Marion County
Superior Court, Schwomeyer described the investigation and
stated that he had learned the location of Taylor’s storage
locker through “surveillance.” He did not mention that the
surveillance involved GPS tracking of Taylor’s car.
A different Marion County judge reviewed the warrant
application and authorized a search of Taylor’s storage

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4 No. 14-1981
locker. The police searched the locker and found
752.61 grams of cocaine, four firearms, and digital scales.
Taylor was charged in federal court with one count of pos-
sessing with intent to distribute 500 grams or more of a
mixture or substance containing cocaine, 21 U.S.C.
§ 841(a)(1), (b)(1)(B)(ii), and four counts of possessing a
firearm as a felon, 18 U.S.C. § 922(g).
Taylor moved to suppress the storage-locker evidence as
the fruit of an unlawful search. He maintained that the
warrantless tracking of his car via GPS violated the Fourth
Amendment. He relied on the Supreme Court’s decision in
Jones, which held that the installation of a GPS device on a
car is a search for Fourth Amendment purposes. 132 S. Ct.
at 949. Taylor also argued that the search warrant was inva-
lid because Schwomeyer had omitted from the affidavit any
reference to GPS tracking. (Taylor raised other arguments,
but he has abandoned them on appeal.)
Because Jones was issued three months after the police
tracked Taylor’s car via GPS, the government opposed the
suppression motion based on the good-faith exception
established in Davis v. United States, which held that the
exclusionary rule does not apply “when the police conduct a
search in objectively reasonable reliance on binding appel-
late precedent.” 131 S. Ct. 2419, 2434 (2011). Davis’s
good-faith exception applied, the government argued,
because the police had reasonably relied on this court’s
pre-Jones decisions upholding warrantless GPS tracking. See
United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United
States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011). The gov-
ernment also noted that the police officers had consulted
with a deputy prosecutor and reasonably relied on judicial

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No. 14-1981 5
approval before installing and monitoring the GPS device.
Finally, the government maintained that the search warrant
for Taylor’s storage locker was valid because Schwomeyer
had not omitted any material fact in his warrant affidavit.
Taylor countered that reliance on Garcia and Cuevas-Perez
was not reasonable because the use of the GPS unit in this
case was more intrusive than in those cases. Unlike Garcia
and Cuevas-Perez, law enforcement here had “asked for and
received permission to enter onto private property, to use the
vehicle’s battery power, and to monitor Taylor’s vehicle for
60 days.”
The district court agreed with Taylor that Davis’s
good-faith exception did not apply but nonetheless denied
Taylor’s motion to suppress on the ground that law en-
forcement had reasonably relied on judicial authorization
when using the GPS. The court explained that Garcia and
Cuevas-Perez were distinguishable because the GPS devices
used in those cases did not draw power from the car’s
battery, were not installed while the car was parked on
private property, and did not track the car’s movement for
60 days. Thus, the court observed, “law enforcement could
not have objectively relied on Garcia and Cuevas-Perez when
the cases do not explicitly, or for that matter implicitly,
authorize the specific actions taken here.” But suppression
was unwarranted, the court held, because the officers had
obtained judicial authorization to use the GPS device and
their reliance on that authorization was objectively reasona-
ble. The judge also explained that applying the exclusionary
rule was not appropriate because the rule is meant to deter
culpable conduct by law enforcement and there was no
culpable conduct in this case. Finally, the judge rejected

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6 No. 14-1981
Taylor’s argument that the warrant was defective because
Schwomeyer’s affidavit had omitted material facts.
While Taylor’s case was still pending in the district court,
we issued United States v. Brown, 744 F.3d 474 (7th Cir.), cert.
denied, 135 S. Ct. 378 (2014), which applied Davis’s good-faith
exception to the use of a GPS device to track a car in 2006,
before Garcia or Cuevas-Perez were decided. The GPS device
in Brown was installed with the consent of the car’s owner,
but it was used to track a driver who had not consented. Id.
at 476. Our decision in Brown confirmed that Garcia and
Cuevas-Perez were binding appellate precedent in this circuit
establishing “that installation of a GPS device, and the use of
the location data it produces, are not within the scope of the
[F]ourth [A]mendment.” Id. And even though the GPS
tracking in Brown predated Garcia and Cuevas-Perez, we
concluded that there was nonetheless binding appellate
precedent in 2006 for the purpose of Davis’s good-faith
exception: to wit, the Supreme Court’s decisions in United
States v. Knotts, 460 U.S. 276 (1983) (holding that law en-
forcement’s monitoring of a signal from beeper is not a
search), and United States v. Karo, 468 U.S. 705 (1984) (hold-
ing that installation of beeper is not a search if owner of the
property on which beeper is installed consents, even if
beeper is used to track someone who did not consent).
See Brown, 744 F.3d at 477–78.
Soon after we decided Brown, the district judge issued a
“Supplemental Entry” that is at the center of this appeal. In
that docket entry, the judge explained that Brown’s
“characterization of Garcia and Cuevas-Perez” differed from
her earlier analysis and supported the government’s position
that Davis’s good-faith exception did apply to the GPS

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No. 14-1981 7
tracking of Taylor’s car. Thus, the judge concluded, Davis’s
good-faith exception supplied additional support for deny-
ing Taylor’s motion to suppress.
Taylor pleaded guilty to the drug-trafficking crime, see
§ 841(a)(1), (b)(1)(B)(ii), but preserved his right to appeal the
district court’s order denying his motion to suppress. The
government dismissed the remaining charges, and the judge
sentenced Taylor to 150 months in prison.
II. Analysis
Taylor contends that the district court erred by relying on
Brown to conclude that Davis’s good-faith exception applied
to the GPS tracking of his car. He argues that Brown was not
meant to state a “blanket rule,” but rested instead on the
narrow ground that the police had obtained the owner’s
consent before attaching the GPS device to the car.
We disagree. The district court correctly concluded that
Brown supports the application of Davis’s good-faith excep-
tion here. Brown makes clear that Garcia and Cuevas-Perez are
pre-Jones binding circuit precedent holding that “installation
of a GPS device, and the use of the location data it produces,
are not within the scope of the [F]ourth [A]mendment.”
Brown, 744 F.3d at 476. Brown also establishes that Davis’s
good-faith exception more generally applies to pre-Jones use
of GPS devices to track a suspect’s car based on earlier
Supreme Court precedent.1
1 Every other circuit to consider the question has applied Davis’s
good-faith exception to pre-Jones GPS tracking by law enforcement.
Some courts have relied on circuit-level binding appellate precedent to

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8 No. 14-1981
It’s true that the GPS tracking at issue in Brown occurred
before this court’s decisions in Garcia or Cuevas-Perez, but we
made clear that the result in Brown would have been the
same (indeed, “straightforward”) if the tracking had oc-
curred post-Garcia, as it did in this case. See id. at 477. The
fact that law enforcement in Brown had obtained the consent
of one of the car’s owners before attaching the GPS device
does not change the outcome here; the officers who used the
GPS to track Taylor’s car could have reasonably relied on
Garcia for the proposition that consent was not necessary. As
Brown explained, Garcia held “that installation of the GPS
locator does not come within the [F]ourth [A]mendment
because it does not interfere with the vehicle’s use in trans-
portation.” Id.
Taylor argues that Davis’s good-faith exception does not
apply because law enforcement exceeded the holdings in
Garcia and Cuevas-Perez by requesting judicial authorization
to (1) track his car for up to 60 days; (2) attach the GPS unit
to his car when parked on private property; and (3) use the
car’s battery to power the GPS unit. Before addressing these
arguments, we note that the record is scant regarding how
do so. See United States v. Fisher, 745 F.3d 200 (6th Cir.), cert. denied,
135 S. Ct. 676 (2014); United States v. Smith, 741 F.3d 1211 (11th Cir. 2013),
cert. denied, 2014 WL 2558149; United States v. Sparks, 711 F.3d 58 (1st
Cir.), cert. denied, 134 S. Ct. 204 (2013); United States v. Andres, 703 F.3d
828 (5th Cir.), cert. denied, 133 S. Ct. 2814 (2013). Circuits without local
precedent have relied on the Supreme Court’s pre-Jones decisions.
See United States v. Katzin, 769 F.3d 163 (3d Cir. 2014) (en banc); United
States v. Stephens, 764 F.3d 327 (4th Cir. 2014); United States v. Aguiar,
737 F.3d 251 (2d Cir. 2013), cert. denied, 135 S. Ct. 400 (2014).

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No. 14-1981 9
the police actually installed the GPS device and where
Taylor’s car was parked when they did so. Taylor and the
government agreed that an evidentiary hearing on the
suppression motion was unnecessary. This deficiency in the
record makes it a bit difficult to assess Taylor’s argument:
“The reasonableness of an official invasion of the citizen’s
privacy must be appraised on the basis of the facts as they
existed at the time that invasion occurred.” United States v.
Jacobsen, 466 U.S. 109, 115 (1984); see Terry v. Ohio, 392 U.S. 1,
21–22 (1968); United States v. Brown, 64 F.3d 1083, 1086 (7th
Cir. 1995); United States v. Hamilton, 591 F.3d 1017, 1022 (8th
Cir. 2010); United States v. Alexander, 540 F.3d 494, 501 (6th
Cir. 2008).
Despite the underdeveloped record, we conclude that the
district court correctly rejected Taylor’s arguments. We begin
with his challenge to the length of the GPS monitoring and
conclude that it is foreclosed by precedent. As noted in
Brown, our decisions in Garcia and Cuevas-Perez explained
that the Supreme Court’s decisions in Knotts and Karo “joint-
ly show that tracking a car’s location by GPS is not a search
no matter how long tracking lasts.” Brown, 744 F.3d at 477
(emphasis added). Moreover, Brown explained that even
before Garcia and Cuevas-Perez were decided, Knotts estab-
lished that monitoring a GPS unit attached to a car is “not
within the [F]ourth [A]mendment’s scope.” Id. at 478. Thus,
it was reasonable for law enforcement to rely on Knotts—and
by extension, Garcia and Cuevas-Perez—for the proposition
that the length of the GPS monitoring is irrelevant under the
Fourth Amendment. And if it was objectively reasonable for
law enforcement to conclude that Knotts, which involved
only brief tracking with a beeper, authorizes long-term GPS

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10 No. 14-1981
tracking, then reliance on Garcia and Cuevas-Perez was
likewise objectively reasonable. 2
We also reject Taylor’s argument that the GPS unit was
not installed in good faith because law enforcement sought
to power the device with the car’s battery. As an initial
matter, Taylor does not explain how the manner in which the
device was powered is relevant. Moreover, as the govern-
ment points out, it appears from the record that the GPS
device was not actually attached to the car’s battery but
rather was self-powered. Indeed, the petition for judicial
authorization states that the device would be placed “inside
of a fender” and attached with only “a magnet and/or
straps,” and Schwomeyer attested that the GPS unit was
installed by being “placed on the underside” of the car and
removed from the car’s “exterior.” This suggests that the
device was not powered by the car’s battery. See United States
v. Basinski, 226 F.3d 829, 833 (7th Cir. 2000) (explaining that
government bears burden of establishing by a
preponderance of the evidence that warrantless search was
justified).
Finally, we are not persuaded by Taylor’s contention that
the installation of the GPS unit was at odds with binding
2 Indeed, circuits that did not have their own GPS precedent prior to
Jones have uniformly concluded that Knotts is binding appellate prece-
dent for the purpose of Davis’s good-faith exception, even when police
officers’ GPS monitoring lasted for a longer period of time. See United
States v. Baez, 744 F.3d 30, 35 (1st Cir. 2014) (one year of GPS monitoring);
United States v. Oladosu, 744 F.3d 36, 38 (1st Cir.) (47 days of GPS moni-
toring), cert. denied, 135 S. Ct. 97 (2014); Aguiar, 737 F.3d at 262 (months of
GPS monitoring).

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No. 14-1981 11
appellate precedent because law enforcement requested
judicial authorization to install the device while the car was
on private property. First, the record does not indicate
exactly where the car was parked when the GPS unit was
installed, and Taylor’s failure to submit evidence on this
point is reason enough to reject the argument. See United
States v. Oladosu, 744 F.3d 36, 38–39 (1st Cir. 2014). The
petition submitted to the Marion County Superior Court and
the court’s order granting the petition both indicate that the
GPS device would be attached when the car “was either in a
public place or upon private property where members of the
general public would have access to [the] vehicle.”
The government explained at oral argument that the ref-
erence to “private property” accessible to “the general
public” meant only that the GPS unit could be attached
when the car was in a shopping-mall parking lot or compa-
rable location. This language did not authorize entry into
Taylor’s garage or his driveway. Taylor’s counsel did not
dispute that characterization. And at the time of these
events, Garcia was binding appellate precedent for the
proposition that attaching a GPS unit to a car parked on a
public street was not a search. See Garcia, 474 F.3d at 996–97;
Cuevas-Perez, 640 F.3d at 273–74. The privacy interest in a car
parked in a shopping-center parking lot or similar public
location is no greater than the privacy interest in a car
parked on a public street.
Because Davis’s good-faith exception applies, we need not
address the government’s alternative argument that sup-
pression was not appropriate because there was no culpable
conduct by law enforcement. Nor do we consider the gov-
ernment’s argument—raised for the first time on appeal—

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12 No. 14-1981
that the use of the GPS device to track Taylor’s car was
lawful because it was supported by reasonable suspicion.
A FFIRMED.

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