United States v. Oladosu

887 F.Supp.2d 437

UNITED STATES of America

v.Abdulfatah OLADOSU.

Cr. No. 10–056–01 S.

United States District Court, D. Rhode Island.

Aug. 21, 2012.

Adi Goldstein, Assistant U.S. Attorney, U.S. Attorney's Office, Providence, RI, for the Government.

George J. West, Providence, RI, for Defendant.

OPINION AND ORDER

WILLIAM E. SMITH, District Judge.

Defendant Abdulfatah Oladosu was indicted on one count of possession of, and one count of conspiracy to possess, one hundred grams or more of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and 846, and 18 U.S.C. § 2. (ECF No. 8.) Before the Court is Defendant Oladosu's January 21, 2011 motion to suppress all evidence obtained by virtue of the warrantless utilization of a Global Position System Tracking Device (“GPS”), as fruits of a violation of Defendant's Fourth Amendment rights. (ECF No. 47.)

I. Background and Travel

Because of the unusual travel of this case, a brief review of the procedural history is appropriate. The Court held a two-day evidentiary hearing on Defendant's motion on June 16 and 21, 2011. Shortly thereafter, on June 27, 2011, the Supreme Court granted a petition for writ of certiorari in the case of United States v. Jones, on the question of whether warrantless GPS installation and monitoring on public roads violated the Fourth Amendment. ––– U.S. ––––, 131 S.Ct. 3064, 180 L.Ed.2d 885 (2011) (Mem). This Court requested supplemental briefing to address the arguments that were then pending before the Supreme Court. The parties submitted briefs in December of 2011, some time after the Supreme Court heard oral argument in the Jones case. The Court notified counsel that it would await the Court's decision in Jones before acting on the motion to suppress.

On January 23, 2012, the Supreme Court issued its decision in Jones, holding 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 Fourth Amendment. United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012) (footnote omitted). The Court requested supplemental briefing in light of the Jones decision and heard oral argument. In the face of the Jones decision, the government maintains its objection to Defendant's motion to suppress on the basis that, even if the installation and use of the GPS device was a violation of Defendant's Fourth Amendment rights, the exclusionary rule should not apply for two reasons: (1) because the officers relied on judicial precedent in using the GPS, the evidence is admissible pursuant to the good faith exception to the exclusionary rule, as recently applied in Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011); and (2) the evidence is admissible pursuant to the so-called attenuation doctrine.

For the reasons set forth herein, the Court finds that the good faith exception does apply in these circumstances, and therefore the motion to suppress is denied.

II. Findings of Fact

The following facts are derived from the testimony of Detective Robert DiFilippo of the North Providence Police Department, who was the only witness to testify during the evidentiary hearing.¹

A. The October 2009 Investigation

In October of 2009, Detective DiFilippo was assigned to the Rhode Island State Police High Intensity Drug Trafficking Area (HIDTA) task force when he became involved in an investigation of a Nigerian heroin smuggling organization operating in Rhode Island. (Hr'g Tr. Vol. I 6:21—7:9, June 16, 2011, ECF No. 59.) As part of that investigation, Detective DiFilippo obtained information from multiple cooperating witnesses connecting Defendant Oladosu to the organization. The witnesses also provided information regarding where he lived and what vehicle he drove.

Beginning in January of 2010, Detective DiFilippo took a number of steps to further his investigation into this organization and to corroborate what he had learned with respect to Defendant Oladosu. He and other members of the HIDTA task force conducted spot surveillance, installed a pole camera in Oladosu's neighborhood, and obtained a pen register on his cellular telephones.

On February 12, 2010, Detective DiFilippo installed a GPS device on Defendant Oladosu's car while it was parked on Pavilion Street in Providence, across from the mosque Defendant attended. ( Id. at 45:6–17.) The detective placed the GPS under the rear bumper, using a magnet. ( Id. at 47:12–19.) Since this particular GPS was an all-in-one device (meaning that the GPS and its batteries are contained in one device), Detective DiFilippo did not have to wire the GPS into the car. The all-in-one GPS draws power from its own batteries, as opposed to from the car. DiFilippo testified that he chose to install the GPS on a public roadway because he thought it “would be better for [him] and the case and the application of the GPS.” ( Id. at 167:20–22.)

Detective DiFilippo did not obtain a warrant to install, or anytime thereafter to continue to employ, the GPS on Oladosu's car. ( Id. at 54:20–25.) Detective DiFilippo testified as to his reasons for not obtaining a warrant as follows:

I'm not aware of any rules, regulations or laws that require us to obtain a search warrant prior to applying this GPS device. It's not a policy within the police department, of the North Providence Police Department or the Rhode Island State Police HIDTA task force to obtain a search warrant prior to putting an all-in-one device on.

( Id. at 55:19–25.) ²

Detective DiFilippo also testified, however, that he would “normally get approval from the supervisor” to install a GPS device and that, prior to installing the GPS device in this case, he contacted the U.S. Attorney's Office for approval. ( Id. at 56:1–4.) In his capacity as a detective, Detective DiFilippo routinely executed search and arrest warrants and was generally familiar with the laws and constitutional requirements concerning obtaining warrants based on probable cause. ( Id. at 8:9–17.)

Approximately two weeks after the initial installation of the GPS, Detective DiFilippo replaced the batteries, “in the late night hours, in the cover of darkness,” while the car was parked in the driveway of Oladosu's home. ( Id. at 48:24–25.) He did so under cover of darkness to avoid detection.³

Detective DiFilippo provided testimony about the different ways in which law enforcement could use the GPS to track an individual's activity. Every time the vehicle stops, and remains stopped for a designated amount of time, the location of that stop is registered in what is called a stop report. At the same time, however, even without the vehicle stopping, law enforcement can monitor the vehicle's travel by watching it in real-time. A program that accompanies the GPS provides an animated image of the vehicle on a map. In live mode, “it's sending signals out consistently, which gives us a true and accurate image of where he's operating.” ( Id. at 60:25—61:2.) When members of the team were not actively viewing it, they would set it to send signals out less frequently. They would use live mode when they were conducting physical surveillance of the vehicle.

From February 12, 2010, the date the GPS was first installed, to March 30, 2010, the date of Defendant Oladosu's arrest, and with the exception of the one time the GPS was removed to change the batteries, the GPS was continually affixed to Oladosu's vehicle. ( Id. at 52:18—53:19.) The GPS was transmitting data during this entire time, except between March 2 and March 19 when it went into sleep mode because Oladosu was out of the country. ( Id. at 54:3–7.)

B. The Events of March 29 and 30, 2010

On March 29, 2010, Detective DiFilippo was reviewing the GPS data in live mode and noticed something that he found unusual: Defendant was driving around on the back streets, with no apparent destination, in the area of Chalkstone and Academy Avenue in Mount Pleasant. ( Id. at 71:19—72:3.) Of course, the GPS data did not tell DiFilippo who was operating the vehicle or whether there was more than one person in the vehicle at the time, but by responding to the area to perform physical surveillance, DiFilippo was able to determine that Oladosu was the driver and that he had a passenger in his car.

Detective DiFilippo followed Oladosu's car as it drove on back streets until it pulled over where a letter carrier was standing on the sidewalk. (Id. at 75:4–9.) Oladosu and his companion had a conversation with the letter carrier through the passenger-side window. ( Id. at 75:9–11.)

As soon as DiFilippo observed the conversation with the letter carrier, he notified the members of HIDTA, who responded to assist with physical surveillance. ( Id. at 76:21—77:3.) At Detective DiFilippo's direction, another detective, Detective Chabot, spoke with the letter carrier, who informed him that a male known to him as Lorenzo Gadson inquired about an express package addressed to 12 Dover Street. ( Id. at 77:6–19.) The letter carrier told Detective Chabot that he knew Gadson; that he previously resided at 12 Dover Street; and that he continued to receive mail and packages there. This information was significant to DiFilippo because he knew from his investigation that narcotics were being distributed through the mail, and Defendant and Gadson were checking on a package for an address where neither resided. Based on this information, Detective DiFilippo contacted Postal Inspector Al Correia of the United States Postal Service and asked him to check if there were any packages for that address in the system. ( Id. at 77:22—78:3.)

In the meantime, and shortly after Detective Chabot spoke with the mail carrier, Oladosu's vehicle left the area. Detective DiFilippo continued to follow as the car made several brief stops, ultimately parking in front of a residence at 68 Glover Street. ( Id. at 75:11–17.) There,...