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:
FACTS
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.
ARGUMENT
POINT I:
US v JONES
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.
Id.
POINT II:
EXCLUSIONARY RULE
REQUIRES SUPPRESSION
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).
POINT III:
GOVERNMENT NOT ENTITLED TO
DAVIS "GOOD FAITH" EXCEPTION
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).
CONCLUSION
Defendant's
motion to suppress should be granted for the reasons set forth above.
[SIGNATURE BLOCK]
[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.
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