That the guy's case gets a right affirmed yet in his individual case it won't make a difference has to be a pretty bitter pill to swallow.
> On November 4, 2022, Smith filed a Motion to Suppress— which the other Appellants joined—seeking to suppress all evidence derived from the November 2018 geofence warrant which was used to identify them as suspects.
They were identified as suspects, and further investigation produced more evidence, which formed the case. What they are saying is that the good faith exception prevents this from tainting all derived evidence in this case, which seems reasonable.
The good faith exception is an exception to the exclusionary rule, not to the admissibility of the evidence itself.
[1] https://www.ca5.uscourts.gov/opinions/pub/23/23-60321-CR0.pd...
That means they can geofence to get a short list of suspects, and then file proper warrants for some of them if they have more clues?
I'm just trying to guess a gap: engineers tend to see law as more iron, like code, and judge law based on inverse programming: if you can find some set of circumstances that creates a gap where the law isn't obeyed.
Ex. here, you might mean that this doesn't technically stop police from requesting geofenced data anyway, using it to get suspects, then not mentioning it at trial. Yes, technically, the police could ignore this, and request a warrant, then the judge could ignore it, then the tech companies could ignore it, the DA could collude with the police to hide that happened, and pretend they found the suspect a different way.
But it's impractical.
It's hard to spell out why, exactly, tl;dr: death penalty for your career if any of this is discovered by anyone, you can't do it by yourself, and these people are generally on the same team in our distanced analysis, people are tribal, and gov't attorneys/tech companies/judges/police can't rely on eachother's silence.
How many careers have ended over discovery of parallel construction?
It’s actually rather frustrating for me as I used to export and keep the GPS logs, for geotagging photos from a camera, which will need to be done per day now. Nonetheless, a smart move as they simply won’t hold this information anymore - even for those who opt-in to the feature.
There is a cost to living in a free society that needs to be recognized, even though it is still a cost worth paying.
In order to obtain the data that law enforcement would have to "discover" through parallel construction, they need Google to cooperate and run the analysis to give them the required data. They can try to make this request through informal channels, but Google will say that they need a warrant. They can't make the request through formal channels because no judge will give them a warrant. So that's pretty much it.
Law enforcement faces a very high burden to show that parallel construction would apply. (Not "could." Would.) This generally requires law enforcement to show that they were pursuing multiple parallel paths of investigation, and that basic investigatory work in one of the other paths of investigation would have legally led to the excluded evidence as a matter of course. To put it perspective how difficult this is, a former co-worker that is still with the public defender has seen the prosecutor succeed exactly once in 15 years in making a parallel construction argument.
The DEA is the only agency that successfully makes parallel construction arguments on a regular basis, and this is primarily because the DEA has the resources to actively pursue multiple parallel paths of investigation, and because in many cases the reason for using parallel construction is that key witnesses have a tendency to get murdered....
"Well we kicked down the door to your house, which was wrong, but look at all this good evidence we got! I mean, c'mon, the guy is clearly guilty..."
If you intend to kick down a door to find evidence of wrongdoing, anything you find is inadmissible. But if you kick down a door because someone on the other side is screaming for help, evidence of other wrongdoing that you find is admissible still.
Here, they are saying that they had good reason to believe they could operate in the way that they did, so while the geofence evidence itself isn't able to be used, other evidence derived from that work is still usable. But going forwards, no one can use the geofence technique in good faith.
So it doesn't seem like much of a step to "the evidence was screaming to us from inside, begging to be found". It's about the same level of nonsense. ;)
Rebuttal, that seems like a huge step.
> Good faith provides an exception to the Fourth Amendment exclusionary rule barring the use at trial of evidence obtained pursuant to an unlawful search and seizure. If officers had reasonable, good faith belief that they were acting according to legal authority, such as by relying on a search warrant that is later found to have been legally defective, the illegally seized evidence is admissible under this exception.
https://www.law.cornell.edu/wex/good_faith_exception_to_excl...
It's unfortunate for the defendant, but does follow existing precedent.
Big Jean-Marc Bosman energy, who essentially changed the face of football (soccer) forever in the 90's because his club didn't want to let him leave, but he didn't play anymore all the trials.
The Courts are coming out of this looking even worse than they have been.
The evidence gathered by the now ruled unconstitutional methods is not allowed to be used but the evidence gathered afterwards is still admissable where it normally would not be.
In this case, they can't use the geofence data of their locations as evidence but, after they used that to identify suspects, they can use all evidence gathered afterwards where that would normally not be allowed.