Friday, October 17, 2014

GPS Tracking, the 4th Amendment and the Exclusionary Rule

After a federal grand jury indicted Henry Stephens “for being a felon in possession of a firearm on May 16, 2011, in violation of 18 U.S. Code § 922(g)(1)”, he filed a motion to suppress certain evidence.  U.S. v. Stephens, 764 F.3d 327 (U.S. Court of Appeals for the 4th Circuit 2014).  The motion to suppress targeted evidence police obtained by using Global Positioning System (GPS) technology: 
In 2011, federal and state law enforcement officers in the Baltimore area were investigating Stephens for possible drug and firearms crimes. The investigation began as a result of information provided by a registered confidential informant, and it was spearheaded by Officer Paul Geare, . . . Geare was also deputized as an ATF agent and assigned to a `High Intensity Drug Trafficking Area’ (`HIDTA’) task force unit, which was `a hybrid unit of federal agents as well as city police officers’ operating pursuant to Baltimore City and HIDTA guidelines. . . . The HIDTA joint task force is `organized to conduct investigations into drug and gun violations of both federal and state law, and its investigations indeed [lead] to both federal and state prosecutions, determined on the basis of the facts uncovered.’ U.S. v. Claridy, 601 F.3d 276 (U.S. Court of Appeals for the 4th Circuit (2010). . . .

On May 13, 2011, Geare -- acting without a warrant -- installed a battery-powered Global-Positioning-System device under the rear bumper of Stephens' vehicle, which was parked in a public lot in Parkville, Maryland. Geare had information that Stephens was a convicted felon, would be working security at a nightclub known as `Club Unite’ on the evening of May 16, and usually carried a firearm when he worked there. With this knowledge, Geare -- in conjunction with other officers -- implemented a plan to detain Stephens and search him on May 16 at Club Unite.

During the evening of May 16, Geare used the GPS to locate Stephens' vehicle at an area school. Geare and another city police officer (Sergeant Johnson) observed and followed Stephens as he drove the vehicle to his residence. Before Stephens left . . . to drive to Club Unite, Geare and Johnson saw Stephens, who was standing outside his vehicle, reach around to the back of his waistband. They interpreted this . . . as being a check for a weapon. Based on this and other information they had previously obtained, the officers `had at least reasonable suspicion, if not probable cause, that [Stephens] was armed and was on his way to work at Club Unite.’ . . . 

When Stephens drove away from his residence, Geare alerted other officers who had been briefed on the plan to go to Club Unite. Using visual observation and a portable laptop computer to monitor the GPS, Geare and Johnson followed Stephens' vehicle as he drove on public roads to Club Unite. Upon Stephens' arrival at Club Unite, the officers who had been alerted approached him and conducted a patdown, which revealed an empty holster in the middle of his back. Within a matter of minutes, a Baltimore city police officer arrived and conducted a canine inspection of the vehicle exterior. After the canine alerted, the officers searched the vehicle and found (among other things) a loaded pistol.

The officers then arrested Stephens and charged him with one or more state-law crimes. Stephens remained in state custody for approximately three months, until a federal grand jury indicted him for illegal firearm possession by a convicted felon. See 18 U.S. Code § 922(g)(1). After the federal indictment, the state charges were dismissed. . . .
U.S. v. Stephens, supra (emphasis in the original).
The Court of Appeals explains that, while this case was pending in the trial court – the U.S. District Court for the District of Maryland – the U.S. Supreme Court decided U.S.v. Jones, 132 S.Ct. 945 (2012).  U.S. v. Stephens, supra. In Jones, the Court held that the government’s installation
`of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a “search”’ within the meaning of the 4th Amendment. Because the officers in Jones did not have a valid warrant authorizing the GPS usage, the search -- i.e., GPS usage -- violated the 4th Amendment. 
U.S. v. Stephens, supra.  Since the officers in the Jones case had not gotten a warrant that authorized the installation and use of the GPS device, the search violated the 4th Amendment.  U.S. v. Stephens, supra.  
Relying on the Supreme Court’s decision in Jones, Stephens moved to suppress the
firearm and other evidence seized on May 16. Following a hearing, the district court denied the motion. The court concluded that in light of Jones, Geare's warrantless use of the GPS on Stephens' vehicle was an unconstitutional search that led to the seizure of the challenged evidence. However, the court held that the exclusionary rule does not apply because Geare used the GPS in good faith. . . . Stephens entered a conditional guilty plea, reserving the right to appeal the suppression order. See Rule 11(a)(2) of the Federal Rules of Criminal Procedure.
U.S. v. Stephens, supra.  
The Court of Appeals then took up the issue in the case:  whether the government could use the evidence obtained as a result of using the GPS technology. U.S. v. Stephens, supra.  It began by explaining that for
purposes of this appeal, we accept the district court's ruling that Geare's use of the GPS to locate and follow Stephens in May 2011 was an unreasonable search under the 4th Amendment that led directly to the seizure of the evidence from Stephens' vehicle and his arrest. Starting from this premise, we must decide the separate question of whether the exclusionary rule renders the evidence inadmissible. Because the facts are not disputed, this question involves a pure legal conclusion, and we review the district court's ruling de novo. . . .
U.S. v. Stephens, supra.  
It then turned to the exclusionary rule, explaining that the U.S. Supreme Court
created the exclusionary rule `to safeguard against future violations of 4th Amendment rights through the rule's general deterrent effect.’ Arizona v. Evans, 514 U.S. 1 (1995). The exclusionary rule `generally prohibits the introduction at criminal trial of evidence obtained in violation of a defendant's 4th Amendment rights,’ Pennsylvania Bd. of Prob. & Parole v. Scott, 524 U.S. 357 1998), but the `sole purpose’ of the rule `is to deter future 4th Amendment violations,’ Davis v. U.S., 131 S.Ct. 2419 (2011), and its application `properly has been restricted to those situations in which its remedial purpose is effectively advanced,’ Illinois v. Krull, 480 U.S. 340 (1987). As the Court has recently made clear, the exclusionary rule is not a “strict liability regime,” Davis v. U.S., supra,  and exclusion of evidence has`always been [the] last resort, not [the] first impulse.’ Hudson v. Michigan, 547 U.S. 586 (2006).
U.S. v. Stephens, supra.  
It went on to note, though, that
`[e]xclusion exacts a heavy toll on both the judicial system and society at large,’ because it `almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence,’ and `its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment.’ Davis v. U.S., supra. In order for the exclusionary rule `to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.’ Davis v. U.S., supra. 

`Police practices trigger the harsh sanction of exclusion only when they are deliberate enough to yield meaningful deterrence, and culpable enough to be worth the price paid by the justice system.’ Davis v. U.S., supra. Therefore, the exclusionary rule is applicable `[w]hen the police exhibit deliberate, reckless, or grossly negligent disregard for 4th Amendment rights, [and] the deterrent value of exclusion is strong and tends to outweigh the resulting costs.’ Davis v. U.S., supra.
U.S. v. Stephens, supra.  
But as the Court of Appeals also noted,
`when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force, and exclusion cannot pay its way.’ Davis v. U.S., supra. The `pertinent analysis of deterrence and culpability is objective, not an inquiry into the subjective awareness of arresting officers,’ and the `good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal in light of all of the circumstances.’ Herring v. U.S., 555 U.S. 135 (2009).
U.S. v. Stephens, supra.  
It then explained that in conducting the good faith inquiry, the Supreme Court has
found the exclusionary rule to be inapplicable in a variety of circumstances involving 4th Amendment violations. See, e.g., U.S. v. Leon, 468 U.S. 897 (1984) (police conducted a search in reasonable reliance on a warrant later held invalid); Illinois v. Krull , 480 U.S. 340 (1987) (police conducted a search in reasonable reliance on subsequently invalidated state statutes); Arizona v. Evans, 514 U.S. 1 (1995) (police reasonably relied on erroneous information in a database maintained by judicial employees); Herring v. U.S. supra (police reasonably relied on erroneous information in a database maintained by police employees).

Our precedent makes it clear that application of the good-faith inquiry is not limited to the specific circumstances addressed by the Supreme Court. For example, in U.S. v. Davis, 690 F.3d 226 (U.S. Court of Appeals for the 4th Circuit 2012), we held the exclusionary rule did not apply where officers engaged in an unconstitutional search by extracting and testing the defendant's DNA sample during a murder investigation without a warrant. We explained that the Supreme Court's `recent decisions applying the exception have broadened its application, and lead us to conclude that the 4th Amendment violations here should not result in application of the exclusionary rule.’  U.S. v. Davis, supra.  
U.S. v. Stephens, supra.  
The Court of Appeals then took up the issue as to whether the good faith exception to the exclusionary rule should apply in this case.  It began by explaining that in May, 2011,
before Jones, neither the Supreme Court nor this Court had expressly approved or disapproved of warrantless GPS usage. However, in 1983, the Supreme Court held in U.S. v. Knotts, 460 U.S. 276 (1983), that the use of a beeper to track a vehicle was not a search under the 4th Amendment. In doing so, the Court explained that `[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,’ and noted that the beeper simply conveyed to the public what was evident from visual surveillance.  U.S. v. Knotts, supra.

Knotts is not exactly on point with the facts of this case, but it is the legal principle of Knotts . . . that matters. See South Dakota v. Opperman, 428U.S. 364 (1976) (“in all 4th Amendment cases, we are obliged to look to all the facts and circumstances of this case in light of the principles set forth in . . . prior decisions’). . . . [W]e reiterate that in conjunction with the general legal landscape that existed before Jones, `Knotts was widely and reasonably understood to stand for the proposition that the 4th Amendment simply was not implicated by electronic surveillance of public automotive movements,' U.S. v. Sparks, 711 F.3d 58 (U.S. Court of Appeals for the 1st Circuit 2013) and it was the `foundational Supreme Court precedent for GPS-related cases,’ U.S. v. Cuevas–Perez, 640 F.3d 272 (U.S. Court of Appeals for the 7th Circuit 2011).

After Jones, we know such an interpretation of Knotts is incorrect. Without the benefit of hindsight, however, and with no contrary guidance from the Supreme Court or this Court, we believe a reasonably well-trained officer in this Circuit could have relied on Knotts as permitting the type of warrantless GPS usage in this case. See U.S. v. Aguiar, 737 F.3d 251 (U.S. Court of Appeals for the 2d Circuit 2013) (in declining to apply the exclusionary rule, the court stated `sufficient Supreme Court precedent existed at the time the GPS device was placed for the officers here to reasonably conclude a warrant was not necessary’). 
U.S. v. Stephens, supra.  
The Court of Appeals therefore held that “[b]ased on the foregoing, we find no basis to set aside the order denying Stephens' suppression motion. Accordingly, we affirm the conviction.” U.S. v. Stephens, supra.  
One of the judges dissented, pointing out that the good-faith exception “requires officers to `act with an objectively ‘reasonable good-faith belief’ that their conduct is lawful’” and arguing that Geare did not do that. U.S. v. Stephens, supra.   She also pointed out that
at the time the warrantless search was conducted in this case, the District of Columbia Circuit, neighboring the District of Maryland where the warrantless search here occurred, had determined that a warrantless GPS search violated the 4th Amendment. See U.S. v. Maynard, 615 F.3d 544 (U.S. Court of Appeals for the D.C. Circuit 2010), aff'd in part sub nom. U.S. v. Jones, 132 S.Ct. 945 (2012). In fact, at the time the warrantless search was conducted in this case, Maynard had been accepted for argument before the Supreme Court, further undercutting the Government's position here that the issue was generally settled.

Additionally, the Maynard case illustrates that as early as 2005, similarly situated officers were obtaining warrants for GPS searches such as the one performed in this case. Nonetheless, officers in this case did not `take care to learn’ what was required of them by 4th Amendment precedent under these circumstances. Davis v. U.S., supra.
U.S. v. Stephens, supra.  
The dissenting judge also noted that “Detective Geare testified that he did not seek advice from any legal authority regarding the constitutionality of such a search, even though there was no exigent circumstance preventing him from doing so.”  U.S. v. Stephens, supra.  And she explained that
[i]nstead, Geare testified that in utilizing the GPS device in this case, he relied simply on his own past conduct using GPS devices in prior cases that had resulted in convictions. Geare testified it was his `understanding’ that a warrant was not required when attaching a GPS device on a target's vehicle, and his `belief’ that as long as the vehicle was in a public area attaching a GPS device `was fine.’ . . . . He certainly did not receive such guidance from the United States Attorney's Office because, per his own testimony, he did not bother to ask.

U.S. v. Stephens, supra.  She, therefore, would have reversed the judgment of the District Court.  U.S. v. Stephens, supra.  

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