United States v. Aguiar

737 F.3d 251

UNITED STATES of America, Appellee,

v.Stephen AGUIAR, William Murray, and Corey Whitcomb, Defendants–Appellants.¹

Docket Nos. 11–5262–CR(L), 11–5329–CR (con), 11–5330–CR (con).

United States Court of Appeals, Second Circuit.

Argued: Oct. 5, 2012.

Decided: Dec. 13, 2013.

David J. Williams, Jarvis, McArthur & Williams LLC, Burlington, VT, for Defendant–Appellant Stephen Aguiar.

Richard C. Bothfeld, Bothfeld & Volk, PC, Burlington, VT, for Defendant–Appellant Corey Whitcomb.

Robert S. Behrens, Burlington, VT, for Defendant–Appellant William Murray.

Wendy L. Fuller, Assistant United States Attorney, (Tristam J. Coffin, United States Attorney for the District of Vermont, Gregory L. Waples, Assistant United States Attorney, on the brief) Burlington, VT, for Appellee.

Before: JACOBS, POOLER and HALL, Circuit Judges.

POOLER, Circuit Judge:

Acting without a warrant, an agent from the Drug Enforcement Agency (“DEA”) placed a global positioning system device (“GPS”) on the Subaru Impreza driven by appellant Stephen Aguiar. The data gathered by the GPS aided law enforcement in identifying avenues of investigation, supported applications for wiretap warrants, and led investigators to other evidence collected and introduced at trial. Appellants sought to suppress the evidence gathered with the aid of GPS data, arguing that the placement and tracking violated the Fourth Amendment. The United States District Court for the District of Vermont (Sessions, J.) denied the motion. Aguiar and appellants Corey Whitcomb and William Murray were convicted on multiple counts flowing from a conspiracy to possess and distribute cocaine and heroin.

Following appellants' convictions, the Supreme Court handed down United States v. Jones, which 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’ ” for Fourth Amendment purposes. ––– U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012) (footnote omitted). Jones left open the question of whether the warrantless use of GPS devices would be “reasonable—and thus lawful—under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause” to conductsuch a search. Id. at 954 (internal quotation marks omitted). As we find the government's actions in this case fall within the good-faith exception to the excusionary rule set forth in Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), we decline to reach the issue of whether the search was unconstitutional.²

BACKGROUND

In mid-to-late 2008, members of the Burlington Police Department (“BPD”) who were investigating a cocaine and heroin distribution ring focused their attention on leads indicating that Aguiar was transporting cocaine from Massachusetts into Vermont. William Murray was suspected of being one of Aguiar's main cocaine distributors, and Corey Whitcomb became a target of the investigation later on. Based on the information developed by BPD, in early 2009 the DEA joined the investigation.

On January 23, 2009, DEA agent Richard Carter installed a GPS device on Aguiar's Impreza without either a search warrant or consent. Carter later installed GPS trackers on other cars driven by Aguiar, and changed the batteries in the devices as needed. Once installed and activated, the GPS device transmitted a live signal to a DEA server, which showed the precise location of Aguiar's car in real time. Law enforcement agents were able to use the GPS data to remotely monitor the car's movements. The DEA developed software that allows agents to save, track and analyze the data generated by the GPS device. The DEA began receiving GPS data the day the device was attached, and continued to collect GPS data from Aguiar's vehicles until his arrest on July 30, 2009.

Using data generated by the GPS device, DEA agents were able to identify additional suspects and obtain pen register and trap and trace orders, as well as a Title III order allowing agents to wiretap Aguiar's cell phone. At trial, the government introduced various evidence developed with the aid of the GPS data, including maps depicting Aguiar's travel routes, surveillance photos, and testimony of officers who made visual observations of Aguiar and his activities.

Following their indictments and arrests, appellants moved to suppress the data collected from the GPS device. The district court denied the motion. It relied on United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), for the proposition that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Seeing no material distinction between the beeper devices used to track vehicle movement in Knotts and the GPS devices used here, the district court ruled that the warrantless use of a tracking device on public roads did not violate the Fourth Amendment. Appellants were convicted after a jury trial, and this appeal followed.

ANALYSIS

“We review the factual findings on which the district court's suppression ruling was based ... for clear error, viewing the evidence in the light most favorable to the government; the legal conclusions on which this ruling was based are reviewed de novo.” United States v. Watson, 404 F.3d 163, 166 (2d Cir.2005) (internal quotation marks, alteration and italics omitted). The appellants here contest the denial of their motion to suppress the GPS data and evidence derived from that data, based on the Supreme Court's decision in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012).³ All seek to vacate their convictions and remand the case to the district court for a new suppression hearing.

I. The state of the law on tracking technology pre- Jones.

We start with an examination of the law prior to the decision in Jones, beginning with United States v. Knotts, 460 U.S. 276, 277, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). In Knotts, the police were investigating a conspiracy to manufacture controlled substances, including methamphetamine. 460 U.S. at 277, 103 S.Ct. 1081. With the permission of the container's owner, the police placed a beeper inside of a five gallon drum containing chloroform purchased by one of the defendants. When defendant picked up the container, the police followed the defendant's car by tracking the radio signal emitted by the beeper, and eventually tracked the container to a cabin used by the defendant. Id. at 278–79, 103 S.Ct. 1081. The police then obtained a search warrant for the cabin, based in large part upon the data collected through use of the beeper. Id. at 279, 103 S.Ct. 1081. Defendant sought to suppress the evidence obtained based on the warrantless monitoring of the beeper. The Supreme Court found no Fourth Amendment violation, stating that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. 1081.

The Supreme Court next addressed the issue in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984), where a beeper was used to track an object inside of a private residence, rather than in a public area. As in Knotts, government agents installed a beeper inside a container, then used the beeper to track the movement of the container to various locations, including a number of private residences and a commercial storage facility. 468 U.S. at 708–10, 104 S.Ct. 3296. Defendants moved to suppress the evidence collected from within one of the private residences, and the Supreme Court agreed that using the beeper to monitor the movement of the container within private residences violated the Fourth Amendment. Id. at 714, 104 S.Ct. 3296. The Karo Court held that “[a]t the risk of belaboring the obvious, private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable.” Id. The Karo Court distinguished Knotts:

The monitoring of an electronic device such as a beeper is, of course, less intrusive than a full-scale search, but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant. The case is thus not like Knotts, for there the beeper told the authorities nothing about the interior of Knotts' cabin. The information obtained in Knotts was “voluntarily conveyed to anyone who wanted to look ...,” 460 U.S. at 281, 103 S.Ct. at 1085; here, as we have said, the monitoring indicated that the beeper was inside the house, a fact that could not have been visually verified.

468 U.S. at 715, 104 S.Ct. 3296.

After Knotts and Karo, tracking technology evolved and law enforcement began employing GPS devices instead of beepers. In United States v. McIver, the Ninth Circuit considered the argument that placing a GPS device on a vehicle constituted a trespass and rejected it because the vehicle was parked “outside the curtilage” of a home when the device was attached, such that defendant lacked “a legitimate expectation of privacy cognizable under the Fourth Amendment.” McIver, 186 F.3d 1119, 1126 (9th Cir.1999)abrogated by Jones, 132 S.Ct. at 945. Nor did placing the GPS device constitute an illegal search and seizure, as

McIver did not produce any evidence to show that he intended to shield the undercarriage of his Toyota 4Runner from inspection by others. Furthermore, in placing the electronic devices on the undercarriage of the Toyota 4Runner, the officers did not pry into a hidden or enclosed area.

Id. at 1127. In addition,

McIver did not present any evidence that the placement of the magnetized tracking devices deprived him of dominion and control of his Toyota 4Runner,...