Tuesday, June 5, 2012


The FBI, the DEA and other federal law enforcement agencies regularly attach hidden GPS locators to a target's car without obtaining a warrant. The practice likely continues despite the issuance of US v. Jones, 10-1259 (January 23, 2012) prohibiting it as a Fourth Amendment violation.

The government takes the position that the GPS locator is merely an aid to surveillance and the data has been either discarded or it is kept under DOJ seal. Of course merely promising not to use the GPS data at trial is nonsense because the taint of the illegal practice can affect much of the evidence obtained in the investigation.

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The following text, adapted from a case currently in litigation, may be helpful to defendants seeking to suppress GPS evidence:

A.            [omitted]
B.            Covert GPS Tracking.
            1.            Employment of Covert GPS Tracking Devices.
            The government has disclosed that, prior to obtaining authority for any wire taps, its agents employed four covert tracking devices at various times in their investigation.  Agents used the devices between [early 2009] and [late 2010] to monitor defendants and aid surveillance teams following then-targets [names deleted]. See, February 24, 2012 "Letter (non-motion) regarding GPS Discovery as to [defendant]" (Doc. 272). [1]  Agents also used receiving switch and cell site information, real-time information from a target's cellular carrier that allowed agents determine the caller's location when making or receiving calls.  See, May 30, 2012 Affidavit [of agent].
            2.            GPS Devices and Their Impact on the Investigation
            The tracking devices in issue are believed to be small, battery-powered transceivers that employ the global positioning system[2] to broadcast the precise longitude and latitude of their position.  Location is usually accurate within a circle of ten feet or less.  2012 [agent affidavit].   A government agent is then able to receive the signal from the device and remotely monitor the location of the subject in real time from a laptop computer, even in a moving car, at a distance the government has not divulged.  Id.  The device also stores historical GPS location data even when monitoring is not in progress.  2012 [agent affidavit].  The device allows agents to store the location data and access and analyze it at a later time.  Id.  The device even broadcasts automated messages (presumably in the form of emails or text messages to the agents), such as a notification that the target vehicle has moved after being stationary for hours.  2012 [agent affidavit].  Based on inferences from discovery, the devices are covert and capable of concealment for extended periods (more than a year) so long as the battery is changed periodically.  The government has refused to disclose additional facts in this regard. [3]
            The surveillance reports and the [agent] affidavit indicate that agents were able follow their target without maintaining visual contact and thus avoid detection.  The devices also allowed agents to initiate surveillance without standing by at their target's home or place of work; agents could start and stop surveillance as needed and relocate their target when they lost contact.
            3.            Data Aggregation; Invasion of Privacy
            In response to his request for discovery, counsel received electronic files of spreadsheets containing thousands of entries of longitude and latitude in tabular form.  Counsel received another electronic data file with many thousands of entries viewable in a computer web browser window in the form of a Google map.  Counsel believes that this kind of historical information is readily capable of analysis to determine in the applicable surveillance period: (1) how frequently defendant visited certain addresses; (2) how long the defendant stayed; (3) defendant's usual routes of travel; (4) when the defendant is at work or home sleeping as indicated by stationary location.  Much of this information when analyzed would reveal facts of a highly personal nature, much of it unrelated to the investigation.  As examples, the government would be able to determine private facts about the defendant like: which doctor or specialist he was visiting and how frequently he was doing it (possibly indicating the state of his health and what illnesses he had); whether defendant visited his girlfriend (or whether he had more than one girlfriend); where defendant worked (or when he did not work); which stores, bars and restaurants he frequented, all leading to facts and inferences about defendant's private life.

A.            Government Admits Facts that Violate US v. Jones
            The Fourth Amendment prohibits the government from attaching a mobile locating device to a person's car and any evidence so obtained or derived must be suppressed as a fruit of the poisonous tree.  United States v. Antoine Jones, 565 US __, 132 S.Ct. 945, 181 L.Ed.2d 911 (Jan. 23, 2012).  In this case, the government admits unlawfully attaching such devices to [defendant's] cars and using it to gather evidence against him over at least 97 days.  It likewise admits unlawful attachment of a device to the [co-defendant's] vehicles.  The defense anticipates that the government will argue a good faith exception under US v. Davis, discussed infra, but that exception is unavailable here for the same reasons it was unavailable in Jones.
B.            Tainted Evidence
            The extent of the evidence tainted by the government's Fourth Amendment violation can only be fully determined after hearing.  (See, POINT II, infra.)  The data obtained from the device in real time enabled surveillance where it would not otherwise have been possible.  Review of the historical information it produced allowed agents to anticipate defendant's movements and routines, thus further enhancing surveillance.  At a minimum, evidence such as the data produced by the device[4], the surveillance observations and the identity of alleged drug customers obtained during the monitoring period should be suppressed.  Lastly, to the extent a wiretap application relies on evidence derived from the unlawful attachment of these devices, intercepts conducted under tainted court authorization must be suppressed.
C.            Public Movements & Locations Protected Under Jones
            Jones is a January 23, 2012 per curiam Supreme court decision authored by Justice Scalia, holding that the warrantless attachment of a GPS tracking device to an individual's vehicle (as occurred in this case) and the subsequent use of that device to monitor the vehicle's movements on public streets, constitutes a search in violation of the Fourth Amendment's guarantee that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Jones, 565 US __, slip op. supra at 3.  Notably, the concurrence of Justice Sotomayor reasoned further that "the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties... is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."  Justice Alito, joined by Justices Ginsburg, Breyer and Kagan, further reasoned that long-term electronic tracking of a person's movements and location over a period of four weeks (like Jones) should be subject to the requirement of a warrant.
D.            Facts in this Case Present More Serious Fourth Amendment Violation
            Than in Jones

            The facts of the case at bar present a more serious Fourth Amendment violation than what occurred in Jones.  Defendant nightclub owner Antoine Jones came under suspicion of participating in a large District of Columbia narcotics distribution ring.  Agents obtained a warrant to attach a GPS locator to Jones's Jeep, but only attached the device outside the District a day after the warrant had expired.  The government's device remained attached to Jones's car for four weeks allowing the government to compile a list of the locations he had visited and to compare them to conversations recorded over court-authorized wiretaps.  US v. Maynard, 615 F.3d 544, 567-568 (DC Cir. 2010)(on appeal, Jones's conviction reversed; Maynard's affirmed).  The government used this information successfully in its closing argument that Jones was tied to the location at which 97 kilograms of cocaine and 850,000.00 were seized, a fact the DC Circuit noted in ruling that the error was not harmless.  Id. at 568.
            In reversing Jones's conviction, the DC Circuit rejected government arguments that a person could have no reasonable expectation of privacy in his movements over public ways.  Id. at 555.  Expressing a rationale adopted in Justice Scalia's majority opinion, the DC Circuit distinguished Knotts in which the Supreme Court held that the use of a beeper to aid tracking a drug dealer over public roads and open fields to his laboratory was not a search.  See, United States v. Knotts, 460 US 276 (1983).  The Circuit Court of Appeals reasoned that Knotts explicitly recognized a distinction between the limited information discovered by use of beeper movements than the more sustained monitoring present in Jones's case.  Id. at 556 citing Knotts 460 US supra at 283-284.            The Supreme Court later acknowledged this rationale in rejecting Knotts as controlling:
Knotts noted the "'limited use which the government made of the signals from this particular beeper,'" [Knotts] 460 US, at 284; and reserved the question whether "'different constitutional principles may be applicable'" to "'dragnet-type law enforcement practices'" of the type that GPS tracking made possible here….

Jones, 565 US __, slip op. fn 6, p. 10.
            In rejecting the application of the Knotts public space analysis to extended tracking, Jones acknowledges that older theories of privacy based in the law of trespass exist alongside the twentieth century Fourth Amendment jurisprudence based on a person's "reasonable expectation of privacy".  The seminal case concerning reasonable expectations of privacy is Katz. Katz v. United States, 389 US 347 (1967).  In an opinion authored by Justice Harlan with a concurrence by Justice Brennan, the court held that an eaves dropping device placed in a phone booth violated the Fourth Amendment.  The Katz Court reasoned that Fourth Amendment protected people and their reasonable expectations of privacy not places. Id. at 351. 
E.            Jones Is Not New Law
            Jones is not a new or novel legal theory.  As Justice Scalia wrote in his per curiam majority opinion:
Katz, the Court explained, established that "property rights are not the sole measure of Fourth Amendment violations, "but did not "snuf[f] out the previously recognized protection for property." 506 US at 64. As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle "that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment." 460 US at 286 (opinion concurring in judgment). We have embodied that preservation of past rights in our very definition of "reasonable expectation of privacy" which we have said to be an expectation "that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Minnesota v. Carter, 525 US 83, 88 (1998). Katz did not narrow the Fourth Amendment's scope.

Jones, slip op., supra at 7.
F.            Data Aggregation - Broad Holding of Jones
            The holding of Jones is not specifically limited to instances in which the government physically invades a property right by attaching or inserting an electronic device.  The aim of affirming Fourth Amendment protection against long-term electronic monitoring in Jones is to extend eighteenth century guarantees of liberty against incursion by twenty-first century technology. "At bottom, we must 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted'." Jones, slip op, p. 7 citing Kyllo v. United States, 533 US 27, 34 (2001)(High Court rejecting argument that scanning device to look through walls interpreting wave emissions in public view was like shining a flashlight into a window).
            The protections of Jones are not burdened by limitation to property rights and the law of trespass.  "What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted."  Jones, slip op., pp. 10 - 11.  Defending his majority opinion from exactly such a criticism, Justice Scalia wrote:
For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals [such as those broadcast by a smart phone] without trespass would remain subject to Katz analysis.[5] [added by author]

Jones, slip op., p. 11.
            The broader application of the rule of Jones to governmental collection of private electronic data is understood by reference to the Sotomayor concurrence.  While the Justice acknowledges that a Fourth Amendment violation occurs where the Government obtains information by physically intruding on a constitutionally-protected area, she highlights the broader applicability of the decision: 
Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. Rather, even in the absence of a trespass, "a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." In Katz, this Court enlarged its then-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not "turn upon the presence or absence of a physical intrusion."  ...[T]he trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case. [citations omitted]

Jones, Sotomayor Concurrence, p. 1-2.  The Justice cites the majority (Slip op. p. 11) that "transmission of electronic signals without trespass would remain subject to Katz analysis."  Sotomayor Concurrence, p. 3. 
            The Sotomayor concurrence also notes how GPS monitoring generates a comprehensive record of a person's public movements that reflects details of "familial, political, professional, religious, and sexual associations". Id.  The Justice cites the New York Court of Appeals' decision in People v. Weaver, 12 N. Y. 3d 433, 441-442 (2009) as illustrative of the Fourth Amendment intrusion:
'Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. The Government can store such records and efficiently mine them for information years into the future.



            The surveillance observations, wire intercepts and physical evidence are tainted by Fourth Amendment violation and should be suppressed as fruits of an illegal search.  At a minimum, a hearing will be necessary to determine "whether, granting establishment of the primary illegality, the evidence ... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint".  Wong Sun v. United States, 371 US 471, 488 (1963).  The First Circuit has had recent occasion in US v. Angel Camacho to construe the rule of Wong Sun in ordering suppression of an automatic pistol seized in an unlawful Terry stop:
Evidence obtained during a search may be tainted by the illegality of an earlier Fourth Amendment violation, so as to render such evidence inadmissible as "fruit of the poisonous tree." See United States v. D'Andrea, 648 US 1, 6 (2011) (quoting Wong Sun v. United States, 371 US 471, 488 (1963)) (internal quotation marks omitted);... "[T]he exclusionary rule reaches not only primary evidence obtained as a direct result of an illegal search or seizure, but also evidence later discovered and found to be derivative of an illegality or 'fruit of the poisonous tree.'" Segura v. United States, 468 US 796, 804 (1984) (citation omitted) (quoting Nardone v. United States, 308 US 338, 341 (1939)). This rule equally extends to both the direct and the indirect products of unlawful searches and seizures. See Wong Sun, 371 US at 484. "[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality." New York v. Harris, 495 US 14, 19 (1990). Suppression is not appropriate, however, if "the connection between the illegal police conduct and the discovery and seizure of the evidence is 'so attenuated as to dissipate the taint.'" Segura, 468 US at 805 (quoting Nardone, 308 US at 341).

Determining the consequences of unlawful police conduct for seized evidence requires looking at both causation and attenuation. The Supreme Court has declined to adopt a simple "but for" test that would mandate suppression of any evidence that "came to light through a chain of causation that began with an illegal arrest" or another Fourth Amendment violation. United States v. Leon, 469 US 897, 910-11 (1984); see also Hudson v. Michigan, 547 US 586, 592 (2006) ("[B]ut-for causality is only a necessary, not a sufficient, condition for suppression."). A strict but-for rule would prove nearly limitless. "Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" Wong Sun, 371 US at 488 (quoting J. Maguire, Evidence of Guilt 221 (1959). When determining attenuation, "temporal proximity [], the presence of intervening circumstances, and, particularly the purpose and flagrancy of the official misconduct are all relevant." Brown, 422 US at 603-604.

US v. Angel Camacho, 661 F.3d 718 (1st Cir. 2011)(reversing district court's denial of motion to suppress; reasoning that resistance to arrest did not give not supervening grounds to seize pistol where officers first made unlawful Terry stop and discovered pistol during initial pat frisk).


            Defendant cannot fully address the government's anticipated reliance on a "good faith" exception under  Davis v. US, infra, until the government provides materials concerning the authorization procedures the government mentioned in its February 24, 2012 letter (Doc. 272). The government used these authorization procedures in this case presumably to assure agents' compliance with constitutional standards. 
            The government clearly possesses materials relevant to a Davis inquiry that it refuses to disclose:
Prior to installation, agents obtained authorization to install the device from their Supervisory Special Agent, the Assistant Special Agent in Charge, and the Chief Division Counsel.  The Supervisory Special Agent and the Chief Division Counsel further approved the above-described installation location.

(February 24, 2012 Letter, Doc. 272, p. 2.)  The defense requested additional discovery under LR 116.3 by March 5, 2012 letter (Doc. 276), specifically requesting materials about reliance on the good faith/retroactivity exception provided by Davis.  See, US Davis v. US, 564 US __, 131 S.Ct. 2419 (2011) (applying Leon "good faith" exception to officers conducting a search expressly permitted under law existing when search occurred but was overturned or modified to render search unlawful).  The government refused defendant's request by letter of March 16, 2012:  "... [W]e will address that request if and when the Court determines an evidentiary hearing is necessary."  (Doc. 292, p. 2.)  At hearing on [defendant's] motion to compel discovery, the government opposed disclosure (and the magistrate agreed) that disclosure of such materials would be "premature".  (May 16, 2012 Order on motion for discovery, Doc. 321.) 
            At the risk of arguing "prematurely", the government cannot avail itself of the protections of Davis.  Davis applies only when " An officer who conducts a search in reliance on binding appellate precedent does no more than act as a reasonable officer would and should act under the circumstances."  Davis, supra.  In no event can the government show that it has "conducted a search relying on binding appellate precedent". To the contrary, the attachment of a mobile location device is the subject of a specific statute, 18 USC §3117.  Moreover, agents in Jones knew as early as 2004 that reliance on Knotts was untenable in light of Kyllo. United States v. Knotts, 460 US 276 (1983); Kyllo v. United States, 533 US 27, 34 (2001).

            Defendant's motion to suppress should be granted for the reasons set forth above.


[1] This letter contains, among other facts, the identity of the tracked vehicles, the locations and dates of attachment of the device, the dates for which stored data was retained, admissions concerning the absence of a warrant and lack of permission to attach devices or enter on property and a statement that the government will not use the stored GPS data in its case in chief.
[2] The Global Positioning System (GPS) is a space-based satellite navigation system that provides location and time information anywhere on Earth, where there is an unobstructed line of sight to four or more GPS satellites. It is maintained by the government and is accessible free of charge to anyone with a GPS receiver.
[3] The government has refused disclosure of certain requested discovery items such as technical specification of the devices, the DOJ policy materials that allowed warrantless attachment, identification of agents and other material.  The requested material is relevant to the scope of the Fourth Amendment intrusion and the expected claim of the government that it believed in good faith that a warrant was unnecessary.  See, (relevant to "good faith" exception under US v. Davis, 131 S.Ct. 2419 (2011).  The government invoked an investigative secrecy privilege which is the subject of defendant's pending objections to the Magistrate's report and recommendation on the discovery motion. 
[4] The government informs that it "does not intend to introduce" the GPS data in its "case in chief". February 24, 2012 letter, p. 3, (Doc. 272).
[5] The government cannot fairly argue that this portion of the Jones opinion is dicta.  Indeed, the decision is per curiam precisely because all justices agree that the government violates a person's reasonable expectation of privacy by obtaining private information that reveals private facts about the person's life.