Shawn A. Weede, Esquire, & Mark M. Lee, Esquire, UNITED STATES ATTORNEY'S OFFICE FOR THE DISTRICT OF DELAWARE, Wilmington, Delaware. Attorneys for the Prosecution.
John S. Malik, LEAD ATTORNEY, John S. Malik, Esquire, Wilmington, Delaware. Attorney for the Defendant.
GREGORY M. SLEET, Chief District Judge.
On July 6, 2010, the Grand Jury for the District of Delaware indicted defendant Marquis A. Lopez ("Lopez") for: (1) possession with the 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 of 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). On September 10, 2012, the court issued an Opinion and Order ("September Opinion") denying Lopez's Second Motion to Suppress Evidence (D.I. 90) and granting the government's Motion in Limine to Admit Evidence of Other Acts Pursuant to Federal Rule of Evidence 404(b) (D.I. 82). Subsequent to this ruling, the court reopened the record with respect to Lopez's Second Motion to Suppress, in consideration of recent district court decisions on similar suppression issues Specifically, the court directed the parties to address the relevance of: (1) the lack of "binding appellate precedent" in the Third Circuit on the issue of warrantless GPS tracking; and (2) the support on which the officer(s) relied in deciding to employ the GPS devices without a search warrant, so that it may comprehensively address the good faith exception holding in this case. The parties subsequently submitted briefing on these issues. (D.I. 111; D.I. 114; D.I. 116; D.I. 118.) After having considered the testimony elicited during the evidentiary hearings, the arguments presented in these submissions, and the relevant law, the court will reaffirm its decision and deny Lopez's Second Motion to Suppress Evidence. (D.I. 90.)
II. CONCLUSIONS OF LAWS
As detailed in the court's September Opinion (D.I. 99), Lopez asserts that the evidence obtained from the WPD's use of GPS devices must be suppressed as the product of an unreasonable search and seizure in violation of the Fourth Amendment. (D.I. 91 at 2.) Lopez further maintains in his supplemental briefing that the court erred in concluding that the good faith exception provides for admissibility in this case because: (1) as explained in United States v. Katzin  and United States v. Ortiz ,  absent binding appellate precedent in the Third Circuit, the good faith exception to the exclusionary rule cannot apply; (2) Detective Fox did not act in reasonable good faith because he employed the GPS devices before consulting with superiors for advice and/or approval, necessitating examination of his "subjective reasons" for doing so (D.I. 114 at 13); and (3) "it is wholly appropriate for this [c]ourt to... determine what, if any, case law or other relevant information on which Detective Fox, his supervisors, or the Delaware Attorney General's Office relied in February 2010 in concluding that a GPS device could be installed  without the authorization of a search warrant" (id. at 3).
Conversely, the government maintains that the court should reaffirm its finding that the good faith exception does apply in this case because: (1) the Third Circuit has established that a court can determine if an officer's actions were reasonable by considering out-of-circuit case law and, therefore, the court should ignore the reasoning advanced in Katzin and Ortiz as unsupported by Third Circuit precedent; and (2) the subjective legal knowledge and/or deliberative process of Detective Fox and the individuals with whom he conferred is irrelevant to the reasonableness analysis, as the court is tasked with assessing that legal knowledge and deliberative process through an objective, rather than subjective, lens. (D.I. 111 at 10-13.)
A. The State of the Law: February 2010 Through June 2010
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 detailed in its September Opinion, the Supreme Court, in United States v. Jones , found 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 United States v. Jones, 132 S.Ct. 945, 948-49 (2012). For the reasons expressed in its September Opinion, the court concludes that, in light of the Supreme Court's holding in Jones, the WPD's use of GPS devices on Lopez's vehicles did constitute a search. Importantly, however, and as explained in that opinion, a warrantless "search" does not automatically necessitate or result in the suppression of evidence. (D.I. 99 at 15-16 (citing Herring v. United States, 555 U.S. 135, 137 (2009)).)
Instead, as the Supreme Court stated in Herring v. United States , the "exclusionary rule is not an individual right and applies only where it result[s] in appreciable deterrence.' (Id. (citing Herring, 555 U.S. at 141).) Supreme Court precedent dictates that this deterrence is needed where the law enforcement action in question constitutes "deliberate, reckless, and grossly or systematically negligent police conduct" and that, absent such "culpable conduct, " the exclusionary rule should not be used simply to remedy a Fourth Amendment violation. See Davis v. United States, 131 S.Ct. 2419, 2426-27 (2011). To this end, 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.
As noted, Lopez challenges the court's application of the good faith exception as incorrect because, as detailed in Katzin and Ortiz, there was no binding appellate precedent in the Third Circuit at the time of the WPD's action indicating that warrantless GPS monitoring was constitutional. Specifically, Lopez cites to the Supreme Court's decision in United States v. Davis, wherein the Court established that application of the exclusionary rule exception is appropriate where there is "binding appellate precedent" confirming the constitutionality of a later-decided Fourth Amendment violation. See Davis, 131 S.Ct. at 2423-24. Therefore, because the Court specifically referred to the required precedent in Davis as "binding, " Lopez argues that this exception cannot be used here and no other exception applies, necessitating suppression. In support of this argument, Lopez also notes that Justice Sotomayor, in her concurring opinion, stated that the question of whether the exclusionary rule applies when the law relied upon is unsettled is a "markedly different question." Id. at 2435 (Sotomayor, J., concurring). Thus, Lopez contends that applying the good faith exception in his case would be "unjustified and overly expansive" in its interpretation of Davis, "would subvert [its] clear holding, " "exceed the bounds of the exclusionary rule, and prove unworkable in practice." (D.I. 114 at 4.) After consideration of the parties' submissions and the relevant law, the court disagrees.
The court is not persuaded by Lopez's assertions that applying the good faith exception in this case would extend the exception to unsettled areas of the law, subvert Davis' holding, and prove unworkable in practice. First, and as noted in its September Opinion, at the time Detective Fox installed the WPD's GPS devices on Lopez's vehicles, the law was not "unsettled" as Lopez describes. To the contrary, at the time the GPS devices were attached to Lopez's vehicles, there were no Federal Courts of Appeals decisions indicating that the warrantless use of GPS tracking devices was unreasonable or unlawful. In fact, 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 to have considered the question concluded that police do not need to obtain a warrant to install and monitor a GPS device on the exterior of the car, so long as that car remains on public roads. Notably, 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), discusses the same conclusion of legality, noting that a warrant is only required "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." See FED. R. CRIM. P. 41 (Advisory Committee's note to the 2006 amendments).
Moreover, and as detailed more fully in the court's September Opinion, at the time the GPS devices were installed on Lopez's vehicles, several 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 and United States v. Karo. See D.I. 99 at 19; see also United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. McIver, 186 F.3d 1119, 1127 (9th Cir. 1999); United States v. Michael, 645 F.2d 252, 257-59 (5th Cir. 1981) (en banc) ; United States v. Coombs, 2009 WL 3823730 (D. Ariz. Nov. 12, 2009); Morton v. Nassau City Police Dept., 2007 WL 4264569 (E.D.N.Y. Nov. 27, 2007); United States v. Coulombe, 2007 WL 4192005 (N.D.N.Y. Nov. 26, 2007); United States v. Moran, 349 F.Supp.2d 425, 467 (N.D.N.Y 2005). In addition, as of June 2010, 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. ...