SLEET, Chief Judge.
On My 6, 2010, the Grand Jury for the District of Delaware indicted defendant Marquis A. Lopez ("Lopez") for: (1) possession with intent to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin, a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B); (2) knowing possession a Glock 22C semiautomatic handgun in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A); and (3) knowing possession of that handgun after having been convicted of a crime punishable by imprisonment for a term exceeding one year, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (D.I. 14.) Presently before the court is Lopez's Second Motion to Suppress Evidence. (D.I. 90.) The court held an evidentiary hearing in connection with Lopez's First Motion to Suppress Evidence (D.I. 28) on December 16, 2010 (see D.I. 37), after which the parties filed proposed Findings of Fact and Conclusions of Law (D.I. 39; D.I. 48).
On January 20, 2011, the government filed a motion in limine seeking to admit, under Federal Rule of Evidence 404(b), the electronic surveillance evidence the WPD obtained from the GPS tracking devices.
At the evidentiary hearing on December 16, 2010, the United States called three witnesses: Corporal David Diana of the Delaware State Police ("Diana"), Officer David Hamrick, a canine officer with the WPD ("Hamrick"), and Detective Robert Fox of the WPD ("Fox"). Detective Fox was the only witness the United States called at the supplemental evidentiary hearing on March 23, 2011. Lopez did not call witnesses at either hearing. After listening to the witnesses' testimony at each hearing, the court concluded, as stated in its Memorandum and Order on Lopez's First Motion to Suppress Evidence, that Diana, Hamrick, and Fox's account of the facts, as recited at the December 16, 2010 evidentiary hearing, is credible. (D.I. 66 at 2.) The court also found Fox's account of the facts, as recited at the March 23, 2011 supplemental evidentiary hearing, credible. The following represents the court's essential findings of fact as required by Rule 12(d) of the Federal Rules of Criminal Procedure.
In November 2009, Detective Fox and his colleagues in the WPD Drug, Organized Crime, and Vice Division received information from a past proven reliable confidential informant about an individual known as "Lope" or "Curly" who was selling heroin within the City of Wilmington. (See D.I. 37 at 42.) After the informant identified a photograph of Lopez as the person he knew as "Lope" or "Curly," the WPD detectives conducted a controlled
Detective Fox and his WPD colleagues also used GPS tracking devices to monitor the movements of the vehicles they observed Lopez driving. (Id.) During the course of their surveillance, two GPS devices were placed on five different vehicles at various times: a Ford Crown Victoria, a Volkswagen Jetta, a Honda Odyssey, a BMW 5 series, and a blue Dodge Durango. (D.I. 37 at 46.) While the Ford Crown Victoria was registered to Lopez, the other vehicles were registered to different Hispanic males with addresses in Philadelphia, Pennsylvania. (Id.) At the time of the surveillance, the two WPD GPS devices used were three-inch by three-inch battery powered units designed to magnetically attach to the undercarriage of a tracked vehicle. (D.I. 58 at 18.) Here, the devices were installed on the vehicles while they were parked in a public parking lot outside Lopez's residence on the 700 block of Townsend Street in Wilmington. (Id. at 27.) Once installed, the devices allowed the detectives to monitor the location of the tracked vehicle by logging on to the tracking device vendor website, Covert Track. (Id. at 19-21.)
Generally speaking, the information a GPS device can collect and log pertains to the tracked vehicle's location, speed, and direction of travel. (D.I. 37 at 49, 51.) Moreover, a GPS device and Covert Track, when used in conjunction, allows law enforcement officers to set up a "geofence" in monitoring a vehicle's travels. (D.I. 58 at 21-22.) As Detective Fox explained, a "geofence" is a specific geographic area that can be defined by detectives in the GPS computer program and causes the GPS device to send an email or text message to detectives when it has entered the selected area. (Id.) Here, the WPD detectives set up a geofence to ensure that such alerts were sent whenever the monitored vehicles entered the Interstate 95 corridor between Delaware and Pennsylvania. (Id. at 30.) Through utilization of the GPS devices installed on the automobiles Lopez used, the WPD detectives were able to determine that these vehicles would travel to areas known for high drag trafficking in Wilmington and Philadelphia. (Id. at 30-32, 42.) Specifically, the electronic surveillance showed that these vehicles would travel to the Kensington section of Philadelphia — an area known for heroin transactions — and that the driver of these vehicles would travel to Philadelphia in one car, leave that car in Philadelphia, and return to Delaware in a different vehicle. (Id. at 32-53; see also D.I. 37 at 45-46.) Detective Fox testified that the WPD detectives used the GPS monitoring on the vehicles Lopez drove in order to "catch" him traveling back to Delaware after a "load run," wherein they believed he would purchase a large quantity of heroin in Philadelphia. (D.I. 58 at 54.)
Throughout their surveillance, which, in total, was conducted from February 2010 until June 2, 2010, neither Detective Fox nor his WPD colleagues obtained a court order or warrant authorizing installation or use of the GPS devices. (Id. at 28, 72.) Detective Fox testified at the supplemental evidentiary hearing that he did not believe, based on his own past experience and consultation with senior police officers and
As noted, Lopez was arrested on June 2, 2010. (D.I. 66 at 3.) On June 1, 2010, the WPD detectives installed a GPS device on the blue Dodge Durango and, on the evening of June 2, 2010, Detective Fox received a text message from the GPS tracker indicating that the Durango entered Pennsylvania heading northbound on Interstate 95. (Id. (citing D.I. 37 at 47-48).) Detective Fox assembled a team of WPD detectives and a drug canine officer to conduct a traffic stop of Lopez as he was returning to Wilmington. Lopez was ultimately stopped by Corporal Diana, an officer unaffiliated with the WPD or its investigation and who was engaged in "proactive patrol" on Interstate 95. For the reasons stated in its Memorandum and Order denying Lopez's First Motion to Suppress Evidence, the court concluded that the evidence found in the Durango's secret compartment and incident to Lopez's arrest — specifically, 19,500 bags of heroin and a firearm — should not be suppressed as the fruit of unlawful GPS monitoring because: (1) Corporal Diana had "probable cause independent of the GPS tracking to search Lopez and the Durango he was driving"; and (2) that search and the subsequent search of Lopez's apartment were "sufficiently attenuated from the use of GPS tracking that the evidence obtained during those searches [was] not tainted by the use of GPS tracking."
Following the Supreme Court's January 23, 2012 decision in United States v. Jones,
Lopez asserts that the electronic surveillance evidence obtained from the WPD's
Conversely, the government maintains that the GPS electronic surveillance evidence should be admitted under Rule 404(b) because: (1) while Jones did establish that GPS monitoring constitutes a search, it "did not reach the issue of whether probable cause or a warrant" is required prior to installation and, therefore, does not stand for the rule that warrantless GPS monitoring is a per se Fourth Amendment violation; (2) absent Supreme Court instruction that probable cause or a warrant is required to use a GPS device, the court can conclude that reasonable suspicion — which the government maintains was present here — is sufficient to meet Fourth Amendment requirements; (3) to the extent that Lopez has standing to challenge the warrantless installation of the GPS devices,
Initially, the government contends that Lopez does not have standing to challenge the constitutionality of the WPD's warrantless GPS monitoring of vehicles he used from February 2010 to June 2010. Specifically, the government maintains that: (1) because Lopez was registered only to the Ford Crown Victoria and not to the other four monitored vehicles, he is limited to challenging only the GPS monitoring of the Crown Victoria;
It is well-established that a defendant must demonstrate standing to invoke the Fourth Amendment's exclusionary rule. United States v. Stearn, 597 F.3d 540, 551 (3d Cir.2010). To make this requisite showing, a defendant must present evidence that his or her Fourth Amendment rights — rather than rights of or as a third party — were violated. Id. Generally, standing is rooted in the "Katz test," which requires courts to assess whether a defendant's Fourth Amendment rights were allegedly violated and, more specifically, whether that defendant had an objectively reasonable expectation of privacy in the place searched. See, e.g., United States v. Correa, 653 F.3d 187, 190 (3d Cir.2011); see also Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ("Since [Katz], the touchstone of Amendment analysis has been the question of whether a person has a `constitutionally protected reasonable expectation of privacy.'" (quoting Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967))).
Importantly, however, the Jones' majority, while not repudiating the Katz test, grounded its finding that the installation of a GPS device on a vehicle is a "search" in the common law of trespass. Jones, 132 S.Ct. at 949-52. Specifically, the Court concluded that because the Fourth Amendment protects against physical invasions of private property — even if that property is exposed to the public — a defendant can have standing to raise a "property-based" claim if that defendant has a protected property interest in a vehicle, such as ownership or possession, and the government "physically occupied" that private property "for the purpose of obtaining information."
In view of the foregoing and in consideration of the instant facts, the court disagrees with the government's assertion that Lopez has not established a property interest in the vehicles at issue because: (1) all vehicles except the Ford Crown Victoria were registered to third parties; (2) Lopez "was only observed driving the vehicles for brief periods of time in the Wilmington area"; and (3) it is unclear from the record whether Lopez "had lawful authorization" to drive the vehicles. (D.I. 92 at 12.) Rather, as the Jones' majority makes clear, an individual not registered to a vehicle can still have standing to challenge an alleged Fourth Amendment violation where that individual is the "exclusive driver" and, as a result, assumes the property rights of a bailee. Jones, 132 S.Ct. at 949 n. 2. Alternatively, a non-owner can also assume possessory trespass rights when they are using or occupying the vehicle "at the time the government trespassorily insert[s] the information-gathering device." Id. at 953.
Here, the record makes clear that each time the WPD detectives installed a GPS device on one of the Lopez vehicles, the installation took place in a small public parking lot outside his residence on Townsend Street. (D.I. 96 at 5 (citing D.I. 58 at 27, 28, 38-39, 41, 46, 50, 53, 56, 59).) The record also indicates that there were instances in which WPD detectives witnessed Lopez driving the tracked vehicles, including the Crown Victoria, the Honda Odyssey, and the Dodge Durango, while they were simultaneously being monitored by a GPS device. (Id. at 5-6 (citing D.I. 58 at 39-41, 54; D.I. 66 at 4).) Moreover, while the government cites the Third Circuit's holding in United States v. Kennedy to support its argument that Lopez does not have standing because there is no evidence that he was lawfully authorized to use the vehicles,
Instead, the parties do not dispute that the GPS devices were installed outside Lopez's house and that he was seen driving the vehicles on at least three occasions when those vehicles were being monitored by the devices. As noted, Jones establishes that a non-owner who lawfully possesses a vehicle registered to a third-party has at least the property rights of a bailee. In this case, there is no evidence to contradict that Lopez was, at least at some points in time, in possession of the vehicles
The court further notes that it reaches the same conclusion applying the Katz's reasonable expectation of privacy test supported by the Jones' concurrence. The Katz test, in the main, focuses on whether the monitoring of a defendant via GPS would "impinge[ ]" on his or her reasonable "expectation[ ] of privacy." Jones, 132 S.Ct. at 958. In Jones, law enforcement monitored the defendant for a period of four weeks. On these facts, Justice Alito, writing for the concurrence,
In view of the foregoing, the court concludes that Lopez has standing to assert a Fourth Amendment violation because: (1) he had a possessory interest in the vehicles when the GPS devices were installed outside his apartment and, at least, at various times when the vehicles were being
The Fourth Amendment protects the right of individuals to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. As the court recognized in its Memorandum and Opinion denying Lopez's First Motion to Suppress Evidence, the "issue of whether the placement and use of [GPS] tracking devices constitutes a search under the Fourth Amendment has become increasingly prominent in both federal and state court in recent years." (D.I. 66 at 7.) The Supreme Court recently addressed this question in Jones, wherein it concluded that "installation of a GPS device on a target's vehicle, and [ ] use of that device to monitor the vehicle's movements on public streets" is a "search" under the Fourth Amendment. See Jones, 132 S.Ct. at 948-49. The Court, in reaching this conclusion, applied the common law of trespass to find that, in such a scenario, the government "physically occupie[s] private property for the purpose of obtaining information." Id. at 949. This, the court concluded, is a "physical intrusion" that undoubtedly "would have been considered a `search' within the meaning of the Fourth Amendment when it was adopted."
Importantly, and as the government correctly notes, however, the Jones Court did not reach the question of whether a warrant is required before installing a GPS device and/or whether probable cause or reasonable suspicion alone is sufficient to satisfy the dictates of the Fourth Amendment.
It is well-established that "suppression is not an automatic consequence of a Fourth Amendment violation." Herring v. United States, 555 U.S. 135, 137, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009). Rather, as the Supreme Court held in Herring v. United States, the "exclusionary rule is not an individual right and applies only where it `result[s] in appreciable deterrence.'" Id. at 141, 129 S.Ct. 695 (quoting United States v. Leon, 468 U.S. 897, 909, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). Indeed, the purpose of the exclusionary rule is to deter deliberate, reckless, and grossly or systematically negligent police conduct, rather than to remedy such past violations. See Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2426-27, 180 L.Ed.2d 285 (2011). To this end, the Supreme Court has clarified that the exclusionary rule does not apply when "police act with an objectively reasonable good faith belief that their conduct is lawful." See id. at 2427. The Court explained its rationale for this application in Herring, wherein it recognized that suppression imposes a "costly toll upon truth-seeking and law enforcement objectives" by "letting guilty and possibly dangerous defendants go free." See Herring, 555 U.S. at 141-42, 129 S.Ct. 695. In light of this consideration, the Supreme Court has instructed district courts tasked with assessing exclusionary rule suppression issues to exclude evidence only when "the benefits of deterrence ... outweigh the costs." See id.; see also Davis, 131 S.Ct. at 2427 ("For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.").
Thus, the question of suppression should ultimately "turn[ ] on the culpability of the police and the potential of exclusion to deter wrongful police conduct." See Herring, 555 U.S. at 137, 129 S.Ct. 695. In this assessment, "the deterrence benefits of exclusion" will inevitably "`[v]ary with the culpability of the law enforcement conduct' at issue." See Davis, 131 S.Ct. at 2427. Specifically, "when 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." Id. at 2427-28 (internal citations omitted).
In keeping with this principle, the Supreme Court has, in certain instances, upheld the admission of evidence obtained in violation of the Fourth Amendment under the "good faith exception" to the exclusionary rule. For example, the Court has upheld admissibility despite a Fourth Amendment violation where law enforcement committed that violation relying on: a warrant;
Here, the court concludes that the evidence the WPD obtained through the warrantless installation of GPS devices on vehicles Lopez used is admissible under the good faith exception because the WPD detectives: (1) acted in reasonable reliance on the absence of federal or state case law establishing that GPS monitoring of a vehicle in public is a Fourth Amendment "search"; and (2) attempted to comply with Fourth Amendment search requirements in good faith. First, and with regard to the case law available at the time the GPS devices were installed in this case, there were no Federal Courts of Appeals decisions indicating that the warrantless use of GPS tracking devices was unreasonable and unlawful. Instead, prior to the D.C. Circuit's August 6, 2010 decision in United States v. Maynard that warrantless GPS use is unreasonable, every circuit court that considered the question concluded that police do not need to obtain a warrant to install and monitor a GPS device on the exterior of a car, so long as that car remains on public roads. Importantly, the D.C. Circuit's Maynard decision was issued two months after Lopez's arrest. This meant that at the time of the WPD's monitoring neither the Third Circuit Court of Appeals nor any other federal circuit court had concluded that warrantless GPS monitoring and installation was unlawful. Indeed, even the commentary to Federal Rule of Criminal Procedure 41, which governs warrants and was adopted by the Supreme Court pursuant to 28 U.S.C. § 2072(a), maintains the same view. See FED. R.CRIM. PROC. 41 (Advisory Committee's note to the 2006 amendments) (stating that a warrant is only required for a tracking device "if the device installed (for example, in the trunk of the defendant's car) or monitored (for example, while the car is in the defendant's garage) in an area in which the person being monitored has a reasonable expectation of privacy").
Moreover, at the time of the WPD's investigation, numerous federal courts had approved warrantless installation and monitoring of GPS devices on vehicles that remained on public roads based at least in part on the Supreme Court's holdings in United States v. Knotts
In addition, during the WPD's investigation of Lopez, which ended on June 3, 2010 following his arrest, there was no State of Delaware case law opining that the installation and use of a GPS tracking device to monitor a vehicle's location while traveling on public roads required a warrant. In fact, the first Delaware case to consider the issue was decided six months after Lopez's arrest. See State v. Holden, 2010 WL 5140744 at *3-*8 (Del.Super. Dec. 14, 2010) (concluding that prolonged warrantless GPS tracking is unreasonable under the Delaware Constitution).
Second, the court further concludes that the undisputed evidence in the record supports a finding that Detective Fox and the other WPD detectives who installed and monitored the GPS devices acted in good faith and in reasonable reliance on contemporaneous guiding case law and legal advice. Specifically, and as noted above, Detective Fox testified that he did not believe, based on his prior experience, that a warrant was needed before installing and monitoring a GPS device if the installation and monitoring occurred while the vehicle was in public. Detective Fox further explained that, in addition to drawing this conclusion based on his own experience, he spoke with a number of senior police officers and superiors and sought legal advice from the State Attorney General's Office. Both the senior officers and the State Attorney General's Office advised Detective Fox that his investigative methods were appropriate and that he did not need to obtain a warrant so long as the vehicles remained on public roads.
Conversely, Lopez asserts, as the only argument he advances in response to the government's contention that the WPD's actions fall within the good faith exception, that Detective Fox did not act in "good faith" because he did not seek advice from senior officers and the State Attorney General's Office until shortly after he installed the first GPS device without a warrant. (D.I. 96 at 9.) Specifically, Lopez argues that "[h]ad the detective truly proceeded on a good faith basis, his inquiry regarding the legality of installing GPS tracking devices without the authorization of a search warrant would have been initiated well before he warrantlessly installed the first GPS device." (Id. at 8-9.) In view of the evidence before it, however, the court finds Lopez's argument unpersuasive.
As noted above, the central question trial courts are to assess in determining whether the Fourth Amendment's exclusionary rule applies is whether the law enforcement officers engaged in culpable conduct necessitating application of the rule for purposes of deterrence, or whether the officers acted in good faith. While Lopez is correct that Detective Fox did not seek legal advice until shortly after the first GPS device was installed, the court finds that there is no evidence in the record indicating that he or the other WPD detectives did not act in good faith. Instead, the record shows that: (1) at the
Considering this evidence, the court rejects Lopez's assertion that Detective Fox's failure to seek legal advice prior to installing the first GPS device demonstrates that he did not act in good faith. To the contrary, the record shows — and Lopez does not challenge — that, based on the case law available at the time and his own experience, Detective Fox did not have reason to believe that the warrantless use of GPS tracking devices would be unlawful. Furthermore, the court notes that Detective Fox took active steps to confirm that his conclusion was indeed accurate by consulting with senior police officers and the State Attorney General's Office. This, coupled with the other evidence in the record, buttresses the government's argument that Detective Fox acted in good faith. See Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1249, 182 L.Ed.2d 47 (2012) (concluding that officers were entitled to qualified immunity when they had, inter alia, submitted a warrant application for review to a superior officer and a deputy district attorney, both of whom approved the application). Put simply, these law enforcement agents did not act in a manner requiring the prophylaxis of suppression, but instead sought to conduct themselves according to the prescriptions of the Fourth Amendment. See Davis, 131 S.Ct. at 2427; see also Leon, 468 U.S. at 916, 104 S.Ct. 3405.
Thus, having considered the evidence in the record and credibility of the witnesses who testified at the suppression hearings held in connection with this matter, the court finds that suppression of the evidence in this case would be inappropriate. Davis, 131 S.Ct. at 2427.
For the foregoing reasons, the court hereby denies Lopez's Second Motion to Suppress Evidence (D.I. 90) and grants the government's First Motion in Limine to Admit Evidence of Other Acts Pursuant to Federal Rule of Evidence 404(b) (D.I. 82).
For the reasons stated in the court's Memorandum of this same date, IT IS HEREBY ORDERED THAT:
1. The defendant's Second Motion to Suppress Evidence (D.I. 90) is DENIED;
2. The government's Motion in Limine to Admit Evidence of Other Acts Pursuant to Federal Rule of Evidence 404(b) (D.I. 82) is GRANTED.
While the government correctly observes that Fourth Amendment jurisprudence does not require probable cause and/or a warrant in all cases, the court does not agree that Jones necessarily stands for the proposition the government maintains. As noted, the GPS device in Jones was placed on a vehicle for a period of twenty-eight days and collected 2,000 pages of data over the course of the surveillance. Here, the government argues that because the WPD detectives had reasonable suspicion and the GPS monitoring was "short-term" in nature — totaling seventeen days over a period of approximately four months — this "relatively short-term monitoring of a person's movements on public streets" accords "with expectations of privacy that our society has recognized as reasonable." (Id. at 17 (citing Jones, 132 S.Ct. at 948, 964 (Alito, J., concurring)).) The court is not persuaded that under Jones a warrant was not required in this case or that the WPD's monitoring is correctly characterized as "short-term." Instead, it seems clear to the court that the Jones' majority and concurrence agreed — under both the majority's trespass common law analysis and the concurrence's "reasonable expectation of privacy" examination — that the warrantless, long-term use of a GPS device installed on a defendant's vehicle constitutes an illegal search. See Jones, 132 S.Ct. at 954, 957, 964.
Given the extent of the GPS tracking in this case and the period of time over which it occurred, the court disagrees with the government's assertion that: (1) the facts of the instant case are clearly and necessarily reasonable under Jones; and (2) Jones may be read to support the proposition that a warrant would not be required where law enforcement conducts warrantless electronic surveillance for a period of at least seventeen days. Rather, it appears to the court that the length of the GPS monitoring in this case is not so distinguishable from the duration of the monitoring conducted in Jones that the court can authoritatively conclude the Supreme Court would consider seventeen days a short-term monitoring obviating the need for a warrant. See Jones, 132 S.Ct. at 964 (Alito, J., concurring) ("We need not identify with precision the point at which the tracking ... became a search .... [W]here uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant."). The court notes, however, that because it concludes the evidence in question should not be suppressed under the good faith exception to the exclusionary rule, it does not fully examine or reach the issue of the legality of the search in this case.
