Evidence obtained via warrantless planting of GPS tracking device on defendant’s car does not require suppression based on change in the law, where police acted in compliance with binding appellate precedent. Mackey and Bey were convicted in a joint trial of multiple murders, including the death of award-winning journalist Chauncey Bailey. One issue on appeal challenged the denial of a motion to suppress. Held: Affirmed. Defendants sought to suppress evidence of location data obtained by police via a GPS tracking device placed on Bey’s car without a warrant. The trial court denied the motion, finding no search had occurred. In U.S. v. Jones (2012) __ U.S. __, the Supreme Court held that the government’s attachment of a GPS tracking device to the defendant’s vehicle and obtaining information regarding the vehicle’s movements was a search within the Fourth Amendment requiring a warrant. However, in Davis v. U.S. (2011) __ U.S. __, the Court held that searches conducted in reasonable reliance on binding appellate precedent which is later overruled, are not subject to the exclusionary rule because suppression of evidence in such cases would not deter future Fourth Amendment violations. Prior to Jones, California state courts and the Ninth Circuit had held that the planting of a GPS tracking device by police was not a search within the Fourth Amendment because the vehicle’s operator had no reasonable expectation of privacy in the car’s exterior. Thus, police acted in conformance with this precedent.

The trial court did not err in denying defendants’ change of venue motion. Bailey’s murder generated substantial adverse publicity, causing defendants to request a change of venue. The trial court conducted extensive hearings, which included a defense expert. After a “grueling process of voir dire” the court denied the motion, confident the parties could select impartial jurors from the remaining panel. There was no error. Due process requires a change of venue when there is a reasonable likelihood the defendant cannot receive a fair trial in the county. When denial of a venue change motion is raised on appeal, defendant must show error as well as prejudice. In deciding a motion to change venue the court considers factors such as the nature and gravity of the offense; the extent and nature of press coverage; the size of the community; the community status of the defendant; and prominence of the victim. Here, the strongest factor favoring change of venue was the pretrial publicity, but it did not require a change of venue. The method employed by the court in calling a large venire and its careful jury selection process significantly reduced or eliminated any risks caused by pretrial publicity.

The extensive pretrial publicity did not create a presumption of prejudice. Ordinarily, there must be a showing of both error and prejudice when challenging a denial of a change of venue on appeal. However, a presumption of prejudice may arise “when a court has allowed the trial to proceed in an atmosphere that violates due process or where the jury pool has been so thoroughly poisoned by pretrial publicity that an impartial jury cannot be impaneled.” This standard was not met in this case. The defendants also urged adoption of the three-factor test articulated in Daniels v. Woodford (9th Cir. 2005) 428 F.3d 1181, in determining whether prejudice from pretrial publicity should be presumed, thus requiring a change of venue. This test looks at the amount and nature of pretrial publicity, whether news accounts were primarily factual (which is less inflammatory than editorials/cartoons), and whether news accounts contained inflammatory material that was inadmissible at trial. The court disagreed with and declined to follow Daniels because it fails to inquire into the effect of the publicity on the trial.