People v. Bravo

41 N.E.3d 588

The PEOPLE of the State of Illinois, Plaintiff–Appellant

v.Juan BRAVO, Defendant–Appellee.

No. 1–13–0145.

Appellate Court of Illinois, First District, Second Division.

Filed Sept. 22, 2015.

Rehearing Denied Oct. 19, 2015.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Yvette Loizon, and Brian A. Levitsky, Assistant State's Attorneys, of counsel), for the People.

Kathleen T. Zellner & Associates, P.C., Downers Grove (Douglas H. Johnson and Frank A. Richter, of counsel), for appellee.

OPINION

Justice NEVILLE delivered the judgment of the court, with opinion.

¶ 1 The State appeals from an order granting Juan Bravo's motion to quash his arrest and suppress the evidence collected at the time of the arrest. The trial court found that the State failed to meet its burden of showing that police acted in good faith when they installed a GPS device on Bravo's car without judicial authorization. We affirm.

¶ 2 BACKGROUND

¶ 3 On April 5, 2011, Mike McClarence, a special agent working for the Drug Enforcement Agency (DEA), watched Bravo get out of a Toyota and into a Jeep driven by Juan Soto. Soto drove the Jeep to a parking lot. Rodrigo Martinez Figueroa drove up in a sedan. Martinez got into the Jeep, carrying a diaper bag, and half a minute later, he returned to the sedan, still holding the diaper bag. Martinez and Soto started to drive off in different directions.

¶ 4 Following McClarence's instructions, Keith Bakewell, also a DEA agent, activated his siren and directed Soto to stop the Jeep. Bakewell saw several bundles wrapped in cellophane in the Jeep's back seat. Bakewell arrested Bravo. Prosecutors charged Bravo with possessing marijuana with intent to deliver.

¶ 5 Bravo moved to quash the arrest and suppress the evidence seized at the time of his arrest. He alleged that on or before March 3, 2011, DEA agents, acting without judicial authorization, installed on Bravo's Toyota a GPS tracking device. In response, the State argued only that the agents acted in good faith when they installed the device.

¶ 6 At the hearing on the motion both McClarence and Bakewell guessed that they first installed a GPS device on Bravo's Toyota about a month before the arrest. Because of the limited lives of their batteries, they needed to install new GPS devices on Bravo's Toyota several times during the period of surveillance. McClarence made the decision to install the GPS device. He did not consult any attorney about the installation, and he did not seek judicial authorization for the installation.

¶ 7 McClarence testified that while he was following Bravo on April 5, 2011, he used the GPS device to locate Bravo each time McClarence lost track of him. McClarence agreed that he “relied on data that was disseminated from the tracking device in order to find Mr. Bravo on April the 5th.” McClarence testified that he told Bakewell to stop Soto because McClarence believed Martinez and Bravo had just completed a narcotics transaction in the parking lot. McClarence explained, “we actually were told that [Bravo] was a cocaine trafficker.” Neither the prosecutor nor defense counsel asked McClarence to elaborate on the source of the information. McClarence and Bakewell both admitted that during the period of surveillance they had not seen any evidence that Bravo engaged in other narcotics transactions.

¶ 8 The prosecutor argued that the agents acted in accord with applicable case law. The prosecutor added, “there was enough evidence that was elicited during the hearing to give the agents reasonable cause to place the tracker on the defendant's vehicle. And the officer testified that they did have information that the defendant was involved in narcotics activities.”

¶ 9 The judge said,

“[There] was not enough information presented to me that would cause me to be able to say that when the GPS tracker went on, really any one of those * * * times prior to the date of the arrest, that there was a reasonable suspicion that [Bravo] was engaged in criminal activity. I just have one conclusion in the record * * *, which is we were told that he was a cocaine trafficker, period, with no other backdrop to that statement.

So based upon that, I cannot find that the time they put the tracker on * * * that they did, in fact, have that reasonable suspicion that was necessary.”

¶ 10 The judge granted the motion to quash the arrest and suppress the evidence.

¶ 11 The prosecutor filed a motion to reconsider the decision to suppress the evidence. At the oral argument on the motion, the prosecutor introduced a new argument. He said, “there still were multiple intervening factors that attenuated anything that happened,” and that the agents would have discovered the marijuana without use of the GPS device. The court denied the motion for reconsideration. The prosecutor filed a certificate of substantial impairment and a notice of appeal.

¶ 12 ANALYSIS

¶ 13 The State argues on appeal that the agents acted in good faith when they installed the GPS devices, and that the trial court should have granted the motion for reconsideration because the agents did not derive the suppressed evidence from the use of the GPS device.

¶ 14 Good Faith

¶ 15 On appeal from a ruling on a motion to suppress evidence, “Factual findings made by the circuit court will be upheld on review unless such findings are against the manifest weight of the evidence. * * * If we accept the findings of fact made by the circuit court, we then review de novo whether suppression is warranted under those facts.” People v. Gherna, 203 Ill.2d 165, 271 Ill.Dec. 245, 784 N.E.2d 799 (2003). The State admits that the agents committed an illegal search when they attached a GPS device to Bravo's car. See United States v. Jones, 565 U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). To justify the search, the State claims that the agents acted in accord with United States v. Garcia, 474 F.3d 994 (7th Cir.2007).

¶ 16 In Garcia, a known user of methamphetamine reported to police in Polk County, Wisconsin, that Garcia had brought the user meth and told her he wanted to start making meth again. Police found that a store's security cameras captured images of Garcia buying ingredients manufacturers can use to make meth. Garcia had previously served time for meth offenses. Police decided to attach a GPS device to Garcia's car. Using the device, police soon found Garcia with equipment and materials used to make meth. Garcia moved to suppress the evidence. The Garcia court found that the use of the GPS device under the circumstances of that case did not violate the fourth amendment. Garcia, 474 F.3d at 996–98.

¶ 17 The United States Supreme Court rejected the reasoning of Garcia. Jones, 565 U.S. at ––––, 132 S.Ct. at 949. The Jones Court held that the installation of a GPS device without a warrant constitutes a search in violation of the subject's fourth amendment rights. Jones, 565 U.S. at ––––, 132 S.Ct. at 949. However, the Illinois Supreme Court subsequently held that courts need not always suppress the evidence discovered through the warrantless use of GPS device, if the officers acted in good faith when they attached the device. People v. LeFlore, 2015 IL 116799, 392 Ill.Dec. 467, 32 N.E.3d 1043.

¶ 18 In LeFlore, Aurora police received a tip over the Crime Stoppers hotline that LeFlore had committed several burglaries and brought the proceeds to the apartment complex where he lived. The police found that LeFlore, on mandatory supervised release from prison, had recently fled from police officers. After the publication of Garcia, and before Jones, police placed a GPS device on the car LeFlore had driven. The device helped them link LeFlore to a robbery of a gas station within a day after police installed the device. The LeFlore court found that, for Aurora police, Garcia was “a case directly on point” with the situation in LeFlore, and Aurora police followed the Garcia decision “to the letter.” LeFlore, 2015 IL 116799, ¶ 60, 392 Ill.Dec. 467, 32 N.E.3d 1043. Because police did not have the guidance of Jones, they relied in good faith on Garcia when they attached the GPS device to LeFlore's car, and therefore the trial court correctly denied the motion to suppress the evidence collected with the help of the GPS device. LeFlore, 2015 IL 116799, ¶ 71, 392 Ill.Dec. 467, 32 N.E.3d 1043.

¶ 19 Thus, in Garcia and LeFlore, police installed GPS devices and tracked the defendants very briefly, and, in both cases, prosecutors showed the court that before installation of the devices, police had reasonable grounds to suspect the defendants of criminal conduct. The Garcia court expressly limited its holding, noting that it did not decide whether tracking cars for more than a few days would violate the constitution. Garcia, 474 F.3d at 998. The Garcia court also expressly distinguished the case from cases where the State lacked grounds for suspecting the defendant of criminal acts when police attached the GPS device to the defendant's car. Garcia, 474 F.3d at 998. No fair reading of Garcia can stretch the reasoning to permit the installation of a GPS device and the use of the device to track a target for a month, without grounds for suspecting the target of criminal activity.

¶ 20 Here, the prosecutor argued that the agents acted in good faith because they “were told that [Bravo] was a cocaine trafficker.” The prosecutor did not present evidence which could form the basis for an informed assessment of the reliability of the information on which the agents acted. See People v. Corral, 147 Ill.App.3d 668, 672, 101 Ill.Dec. 105, 498 N.E.2d 287 (1986). The prosecutor did not present any evidence that would excuse the use of the GPS device for a month, based on Garcia. Because the agents, who did not ask any attorney for advice on the meaning of Garcia or its application to Bravo's case, installed a GPS device and used it for a month, without any showing of grounds to suspect Bravo of criminal activity, the court found that the...