Search & seizure; Motion to suppress tether location data; Consent exception to the warrant requirement; Good-faith exception to the exclusionary rule; Herring v United States

The court concluded that the trial court erred in finding the consent exception to the warrant requirement applied, and that remand was required “for an evidentiary hearing to determine whether the good-faith exception” to the exclusionary rule did. It retained jurisdiction. Defendant was convicted of AWIM, felony-firearm, first-degree home invasion, and intentional discharge of a firearm at a dwelling. The court found that the case boiled “down to two questions. First, whether defendant’s failure to immediately return his tether after his domestic violence case was dismissed reflects his implicit consent to the government’s continued monitoring of his whereabouts. Second, if the consent exception is inapplicable, whether the good faith exception to the exclusionary rule applies.” The court was “unpersuaded by the prosecutor’s assertion that defendant’s continued wearing of the tether constitutes consent.” His signed tether agreement expressly authorized “members of the Electronic Monitoring Unit of the Wayne County Sheriff’s Department and other police officers, they may designate, to enter and search my/our residence and/or vehicle(s) during the entire duration I am in the Electronic Monitoring Program, regardless of day or time of search.” It also provided “that defendant must ‘allow the Electronic Monitoring Officers to enter the residence and make household checks as needed for the duration of the program,’ and notes that defendant ‘expressly waive[d his] 4th Amendment rights during the time [he was] in the Electronic Monitoring Program.’” The court found that the “terms of the agreement clearly contemplate that defendant’s consent to warrantless searches of his person and property hinged on his continued participation in the Electronic Monitoring Program, not on his continued wearing of the tether.” As the prosecution conceded, he “was not still subject to the conditions of his pretrial release” as of 10/4/23. Thus, any consent he initially gave “expired by the time officers accessed his tether location data regarding the [10/4/23] shooting. Moreover, his continued wearing of the tether was ‘no more than acquiescence to a claim of lawful authority,’ given that he was still responsible for maintaining and returning the equipment.” As to the good-faith exception to the exclusionary rule, the trial court denied his motion based on Herring. The court noted that “Herring did not establish an all-purpose ‘recklessness or gross negligence’ standard that must be met before unlawfully obtained evidence is subject to the exclusionary rule. [It] simply recognized that, when police reasonably and in good faith rely on a third party, there is no culpable or wrongful conduct to deter.” The record was “unclear whether law enforcement officers in this case reasonably relied on the terms of defendant’s tether agreement—authorizing warrantless searches of [his] person and property—when conducting the challenged search.” Because evidence of their “actual knowledge is necessary to determine whether they were acting in good faith at the time of the contested search, further factual development on this issue is necessary.”