June 26, 2013
UNITED STATES OF AMERICA, Plaintiff,
MARQUIS A. LOPEZ, Defendant.
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. Indeed, 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).
In view of the foregoing, the court disagrees with Lopez's characterization of the law as unsettled, as no court in Delaware or in the Third Circuit had found the warrantless use of a GPS tracker to be unconstitutional as of June 2010. In addition, the court disagrees with his assertion that denying suppression would extend the good faith exception to unsettled areas of the law and, in so doing, subvert the Davis holding. Rather, it is clear to the court that while binding appellate precedent in the Third Circuit was absent at the time Detective Fox installed GPS devices on Lopez's vehicles, there was no circuit split on this issue or even a single federal appellate court decision concluding that GPS installation and monitoring constitutes a search. Thus, because the law from February 2010 through June 2010 had not been subject to varying judicial interpretations, the court finds that that law, though not binding, was arguably "settled, " in that all courts to have considered the issue agreed that warrantless GPS use was constitutional so long as the vehicle was on public roads. Thus, the court finds that applying the good faith exception in this case is not contrary to the Supreme Court's rationale in Davis, nor does it implicate the Court's concern that the good faith exception be applied only in cases where the law was "settled."
B. The Third Circuit's Use of Out-of-Circuit Precedent to Establish Reasonableness
The court's conclusion is further supported by Third Circuit cases establishing that it, and courts in the Circuit, can rely on out-of-circuit precedent in assessing whether an individual's actions are objectively reasonable. This precedent is important here because, at the time that the GPS devices were installed on Lopez's vehicles, courts in other circuits had concluded that the installation and use of a GPS without a warrant did not violate the Fourth Amendment. See Garcia, 474 F.3d at 998 (concluding that no warrant was required to install a non-invasive GPS tracking device on a vehicle while it was in a public place); McIver, 186 F.3d at 1127 (finding that no "seizure" occurred where a slap-on tracking device did not "deprive [the defendant] of dominion and control" of his vehicle and did not cause "any damage to the electronic components of the vehicle"); Michael, 645 F.2d at 256 (concluding that the warrantless attachment of a tracking beeper to a vehicle was constitutional because it was minimally intrusive and installed while the vehicle was parked in a public place); see also FED. R. CRIM. P. 41 (Advisory Committee note to the 2006 amendments).
Specifically, and as the government details, the Third Circuit in United States v. Pavulak  and United States v. Duka ,  concluded that it may rely on out-of-circuit precedent to determine whether officers' actions were objectively reasonable and, thus, within the scope of the good faith exception to the exclusionary rule. For instance, in Pavulak, the Third Circuit held that a search warrant affidavit-which stated that an informant observed the defendant viewing "child pornography, " without defining that term or describing the images in question-was insufficient to establish probable cause that the defendant was engaged in unlawful activity. See Pavulak, 700 F.3d at 661-63. In reaching this conclusion, the Third Circuit relied on recent decisions holding that conclusory descriptions, without more, do not provide a magistrate with sufficient information to conclude that computer images meet the statutory definition of child pornography. Id. Despite this finding, the Third Circuit held that the good faith exception applied because it was reasonable for the officers who executed the warrant to believe that the affidavit was sufficient, despite lacking notable detail, because the "cases leading [the court] to conclude that the warrant was insufficient... were not decided until 2010 and 2011." Id. at 664. More specifically, despite the absence of binding appellate precedent in the Third Circuit at the time the warrants were sought, the court found it persuasive that "the affidavit's allegations would have been sufficient in the Eighth Circuit at the time, " even though it did not adopt the Eighth Circuit's reasoning. Id. Therefore, the court held that the officers' reliance on the warrant was defensible and within the scope of the good faith exception based on out-of-circuit precedent where there was no Third Circuit precedent avail able. Id.
Likewise, in United States v. Duka , the defendants filed a motion to exclude evidence obtained pursuant to a section of the Foreign Intelligence Surveillance Act ("FISA"), on the grounds that the provision in question violated the Fourth Amendment. See Duka, 671 F.3d at 336. In response to this assertion, the Third Circuit concluded that suppression of the evidence would be inappropriate because the officers acted "in objectively reasonable reliance on a statute, " and, as a result, suppression "would not further the purposes of the exclusionary rule, even if that statute is later declared unconstitutional." Id. (citing Illinois v. Krull, 480 U.S. 340, 349-50 (1987))). The Third Circuit further noted that the "objective reasonableness of the officers' reliance" on FISA was "bolstered by the fact that the particular provision at issue" had been "reviewed and declared constitutional by several courts" outside the Third Circuit. Id. at 347 n.12 (citation omitted). Thus, the court agrees with the government that the Third Circuit in Duka again relied, at least in part, on out-of-circuit precedent to support its finding of objective reasonabl eness.
In view of the state of the law from February 2010 through June 2010 and Third Circuit precedent allowing for consideration of out-of-circuit case law to assess reasonableness, the court concludes that application of the good faith exception is appropriate in this case despite the absence of binding appellate precedent. hi reaching this conclusion, the court notes its agreement with several courts that have reached similar conclusions since Jones and have found that limiting the good faith exception to instances where law enforcement acted consistent with only "binding" precedent would result in an "untenable" and "inflexible" approach at odds with the purpose of the exclusionary rule. Indeed, as noted above, application of the exclusionary rule is not the necessary result of a constitutional violation but is, instead, a rule applied to deter the culpable conduct of law enforcement. See Herring, 555 U.S. at 141; Davis, 131 S.Ct. at 2426-27. Here, for the reasons set out more fully below, the court finds that Detective Fox and the WPD did not act culpably or in bad faith in installing GPS devices on Lopez's vehicles, particularly in light of the fact that no federal or Delaware court had concluded such warrantless installation was unconstitutional during the relevant time period.
C. The Consideration of Subjective Legal Knowledge & Deliberative Process in the Good Faith Exception Analysis
Lopez argues that it is "wholly appropriate" for the court to consider "what, if any, case law or other relevant information on which Detective Fox, his superiors, or the Delaware Attorney General's Office relied in February of 2010" in concluding that it was unnecessary to obtain a warrant before installing and monitoring a GPS device. (D.I. 114 at 3.) Specifically, Lopez maintains that because Detective Fox did not consult with his supervisors and the Delaware Attorney General until after a GPS device was installed, his "actions cannot be assumed to have been undertaken in good faith reliance on any supporting authority" or approval, making "it  necessary for the [c]ourt to examine his subjective reason[ing]." (Id. at 3, 13.) In response, the government challenges that: (1) Lopez has misread the record with respect to Detective Fox's testimony in that Detective Fox did, in fact, consult with his superiors prior to installing the first GPS device; and (2) that the "subjective legal knowledge" of Detective Fox and his colleagues at the WPD "regarding the warrantless use of GPS devices to track  Lopez's vehicles is beyond the scope of what is relevant to the [c]ourt's good faith analysis of Detective Fox's actions." (D.I. 114.) The court agrees.
First, while Detective Fox's testimony was initially unclear as to when he consulted with his superiors in determining that a warrant was not required,  he clarified his testimony during the Supplemental Evidentiary Hearing of June 25, 2013. (see D.I. 121 at 3:9-5:7.) Specifically, Detective Fox consulted with his superiors in the WPD before he installed the first GPS device on Lopez's Passat. Detective Fox then later consulted with the Delaware Attorney General's Office at the end of February 2010, after the WPD was monitoring Lopez's vehicle. Because Detective Fox consulted with his superiors prior to installing the first GPS device, the court finds that he was, in fact, acting in reliance on some authority. (D.I. 114 at 13; D.I. 118 at 2.) Notably, this finding, though not dispositive in the analysis, supports the conclusion that Detective Fox was acting in good faith. See Messerschmidt v. Millender, 132 S.Ct. 1235, 1249 (2012) (concluding that the officer's consultation with superiors and a deputy district attorney with regard to a warrant application provided "further support for the conclusion that an officer could have reasonably believed" that his actions were lawful).
Second, the court further concludes that it should not explore the WPD and Detective Fox's subjective reasons for concluding that GPS devices could be used to monitor a vehicle without a warrant. Similarly, it would be inappropriate to explore their deliberative process. Specifically, and as the government correctly notes, the Supreme Court has established that the good faith exception turns on whether an officer's conduct was "objectively reasonable." See Herring, 555 U.S. at 145-46. This inquiry requires a court to determine "whether a reasonably well trained officer would have known that the [conduct at issue] was illegal." Id. (internal citations omitted); see also Leon, 468 at 919 n.20. To this end, the "subjective awareness" of a particular officer does not bear on the analysis and is not relevant to the good faith determination. Rather, an officer's objective reasonableness will depend on the state of the law at the time of the investigation in question. In addition, a finding of objective reasonableness can be further supported by an officer's consultation with his or her superiors. In this context, the Supreme Court has repeatedly applied the good faith exception in cases where officers acted in objectively reasonable reliance on the errors of others. See supra note 19.
Given the facts of this case and the relevant law, the court concludes that the WPD and Detective Fox's decision to use GPS devices to monitor Lopez's vehicles without a warrant was objectively reasonable in that no federal or state precedent informed them that a warrant was necessary. Reinforcing the objective reasonableness of his conclusion, Detective Fox consulted with his supervisors and, later, with the Delaware Attorney General's Office, all of which confirmed the Detective's view that a warrant was not needed so long as the vehicle in question was in public. Indeed, the court finds no evidence in the record that Detective Fox or his WPD colleagues acted culpably or in a way requiring resort to the prophylaxis of suppression. To the contrary, it is clear to the court that the law enforcement officers in this case believed their conduct to be lawful and sought to adhere to the requirements of the Fourth Amendment. Consequently, the court finds that application of the good faith exception to be appropriate.
For the foregoing reasons, the court hereby reaffirms its decision (D.I. 99) and 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.