Friday, December 13th, 2013

Good Faith Exception Applied to Warrantless Use of GPS Tracking Device for Six Months in 2009

UNITED STATES V. AGUIAR, ET. AL., NOS. 11-5262-CR (L), 11-5329-CR (CON), 11-5330-cr (CON) (2D CIR. DEC. 13, 2013) (JACOBS, POOLER, AND HALL), AVAILABLE HERE

The Court in this published opinion denied defendant’s multiple claims of error by the district court arising out of Rule 12 and post-trial motions. The most predominant issue involved the government’s warrantless placement of a GPS device on the defendant’s car from January to July 2009 and whether it violated the Fourth Amendment where officers have reasonable suspicion and probable cause to execute a search.  After a detailed analysis of similar out-of-Circuit cases and identifying relevant Supreme Court precedent in existence at the time of the government’s conduct, the Court ultimately held that the good faith exception to the warrant requirement applied. 

Burlington, Vermont’s Police Department and the DEA investigated a cocaine and heroin distribution conspiracy in mid to late 2008, which included Aguiar (the defendant) as a suspect. On January 23, 2009, the DEA installed a GPS device on Aguiar’s car without a search warrant or consent. Agents periodically changed its batteries to ensure it worked. The device provided real time information to the DEA about the car’s location, which was saved for analysis. The device provided continuous information until Aguiar’s arrest on July 30, 2009.  This information facilitated the identification of additional suspects and enabled the government to obtain pen register and trap and trace orders as well as a wiretap of Aguiar’s phone.  Based in part upon this evidence, the jury convicted each defendant.

The Court held, and the government conceded, that the warrantless placement of the GPS device on Aguiar’s vehicle violated the Fourth Amendment pursuant to the Supreme Court’s 2012 decision in United States v. Jones, 132 S.Ct 945 (2012). The Court, however, applied the good-faith exception to the exclusionary rule discussed in Davis v. United States, 131 S. Ct. 2419 (2011).  Jones never addressed this issue.  That good faith exception provides that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at 2423-24. “Binding appellate precedent” according to the Court referred to precedent of this Circuit and the Supreme Court.  Acknowledging the lack of Second Circuit caselaw, the Court turned primarily to two Supreme Court decisions in deciding that the exception applied.

The first, United States v. Knotts, 460 U.S. 276, 281 (1983), held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Accordingly, the warrantless use of a tracking device to monitor the movements of a vehicle on public roads did not violate the Fourth Amendment. Id. at 281-82, 285. The second, United States v. Karo, 468 U.S. 705 (1984), held that the warrantless use of a beeper to track an object inside of private residences where expectations of privacy existed, rather than in a public area, violated the Fourth Amendment. The Karo holding, however, minimized the physical trespass incurred by placement of the beeper. Id. at 712-13. According to the Court, Karo’s minimal treatment of the trespass issue did not suggest the analysis in Jones would occur and “fits logically” with the Supreme Court’s treating an automobile as having a lessened expectation of privacy. See New York v. Class, 475 U.S. 106, 112 (1986).

With this precedent in mind, the Court held that “[t]aken together, law enforcement could reasonably conclude placing a GPS device on the exterior of Aguiar’s vehicles did not violate the Fourth Amendment” because agents could “reasonably conclude a warrant was not necessary in these [pre-Jones] circumstances.” Finding that the GPS was equivalent to the beeper in Karo and noting that the tracking occurred on “public thoroughfares,” the Court disagreed with claims that the GPS’s presence and tracking over a period of months distinguished the case from Knotts.  The Court did state that law enforcement’s approach needed to change in light of the decision in Jones.

As an aside, it is worth noting that the Supreme Court in Jones expressly declined to address whether long-term surveillance violated the Fourth Amendment. Jones, 132 S.Ct at 954. “We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.” Id.

Of the four remaining claims of error denied on appeal, two merit some attention here. Agents conducted a warrantless search of Aguiar’s iPhone, which was found in his car during a post-arrest search, and discovered a photograph depicting a brick of cocaine. The district court analogized the iPhone to a closed container and concluded that it may conceal the object of the search. Thus, no warrant was required and the photograph was admitted as evidence at trial. On review and assuming arguendo the warrantless search violated the Fourth Amendment, the Court held that admitting the photograph at trial was harmless error given the volume of other evidence presented to the jury.

Finally, the Court affirmed the denial of Aguiar’s Rule 29 and Rule 33 motions. Faced with the burden on appeal and the Court’s resolving evidentiary conflicts in favor of the prosecution, Aguiar failed to prove only a buyer-seller relationship existed and that he was not a member of the conspiracy. Repeated purchases of cocaine occurred and recorded conversations revealed the Aguiar discussing with a co-defendant money collection and that co-defendant advising him how to proceed.

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