In 2012, the U.S. Supreme Court in United States v. Jones held that attaching a magnetic GPA tracking device to the exterior of a vehicle constituted a “search” within the meaning of the Fourth Amendment.
So what to do with cases where law enforcement place GPS devices on vehicles without warrants prior to the Supreme Court Decision?
Last October the Third Circuit Court of Appeals in United States v. Katzin became the first federal circuit to reject a claim of a good-faith exception in a pre-Jones case, holding that a warrant based on probable cause is required before law enforcement can attach a GPS tracking device to a vehicle.
Seven months earlier, March 2013, the First Circuit Court of Appeals joined the GPS tracking device fray in United States v. Sparks by holding that a warrantless installation of a GPS tracking device on a suspect’s vehicle fell within the good faith exception to the exclusionary rule. The appeals court reasoned that since the device had been used before the U.S. Supreme Court decided that such tracking devices on a vehicle constitutes a search within the Fourth Amendment, the good faith exception to exclusionary rule applied.
The good-faith exception to the exclusionary rule allows evidence that was obtained in violation of Fourth Amendment protections against unreasonable searches and seizures to be admissible evidence, if law enforcement officers were acting within certain limited circumstances and their actions were in good faith.
In the GPS line of cases, the good faith exception can apply because previous law, “settled, binding, precedent authorized the agents’ conduct,” allowing the placing a GPS device on a vehicle without a warrant. That was, of course, until the U.S. Supreme Court found otherwise.
On February 28, 2014, the First Circuit in United States v. Baez once again dealt with another pre-Jones warrantless GPS tracking device case. And again the court found under the rule it articulated in the Sparks case that the good faith defense applied.
Jose Baez in August 2009 was under investigation by the ATF for two arson fires that occurred in April and July. In connection with that investigation, ATF agents attached a GPS tracking device to his 1989 Chevrolet Caprice. The device remained in place for the next 347 days. The basis for attaching the device was because surveillance cameras at both fires recorded the image of an older model, dark-colored Chevy Caprice. The agents determined the vehicle had been manufactured between 1986 and 1989. They obtained a list from the Massachusetts Registry of Motor Vehicles of all the addresses of people owning such a vehicle in the Boston area. There were 38 such vehicles, and after investigating each one, the ATF locked their focus on Baez.
On August 27, ATF Agent Brian Oppedisano, acting without a warrant, attached the GPS to Baez’s vehicle while it was parked on a public road in front of the suspect’s home. Agents set up what is known as a “virtual perimeter” around Baez’s residence and “programmed the GPS device to send a text message to Agent Oppedisano whenever the Caprice traveled outside that perimeter…” The agent would then determine if actual “physical surveillance” was warranted. The appeals court noted that the agent “testified that he looked at the GPS location logs once every day or two, and that agents conducted periodic physical surveillance of the Caprice (even when it did not travel outside the perimeter) to ensure that it was actually where the GPS device said it was.”
Baez did not use the Caprice often; in fact, the vehicle traveled outside the perimeter only 26 times during the nearly year-long investigation, six of which were during the final week before an August 9, 2010 fire in Roslindale which led to the suspect’s arrest. Following his indictment, Baez’s counsel moved in September 2011 to suppress all the evidence obtained as a result of the GPS tracking device. The defense and Government, with approval of the court, agreed the suppression motion should be held in abeyance until the Supreme Court ruled in the Jones case. The court ultimately denied Baez’s motion to suppress in the wake of the January 2012 Jones decision. The court relied upon a 2011 decision by the Supreme Court in Davis v. United States to find that “suppression [of the GPS-obtained evidence] would not serve the purposes of the exclusionary rule, because, when he installed the GPS device and engaged in the monitoring, Agent Oppedisano had ‘a good faith basis to rely upon a substantial consensus among procedural courts.’”
Baez filed a notice of appeal but before the parties briefed the issue the First Circuit decided Sparks in which Federal law enforcement agents had tracked the defendant’s car for eleven days using a warrantless GPS tracking device. The Sparks decision was premised on the notion that the good-faith exception defense applied because at the time the GPS device was used the case law was settled authorizing the agents’ conduct. The issue squarely before the appeals court in the Baez case was whether those same cases authorized the use of the GPS device on Baez’s vehicle.
The First Circuit began its analysis with the time-honored observation that the purpose of the exclusionary rule “’is to deter future Fourth Amendment violations.” In other words, it is a way for the courts to punish law enforcement officials who knowingly act outside of established law when seeking evidence through searches and seizures. But the rule is narrowly strict: it applies only “where the available benefits of deterring police misconduct that produced the [Fourth Amendment] violation outweigh the costs of excluding relevant evidence.” Thus, when the police act within existing law, and that law later changes, “there is nothing to deter; the police cannot modify their conduct to accord with cases not yet decided.”
Baez tried to escape the noose of the good faith exception by arguing that Agent Oppedisano set into play a “dragnet” surveillance which has historically been considered “abusive surveillance.” Thus, he argued, the agent’s conduct was outside the protection of the good faith exception. Baez said Oppedisano installed the GPS tracking device “indefinitely, or until further notice, to see if he could get lucky” without any evidence of an ongoing crime or even a reasonable suspicion that the suspect would commit another arson. The appeals court was not persuaded:
“ … Contrary to Baez’s claims, Agent Oppedisano was not taking a shot in the dark when he installed the GPS device on Baez’s Chevrolet Caprice; the ATF had ample reason to suspect that Baez had set the 2009 fires at Jamaica Plain Auto Body and Back Bay Dental. Specifically, the ATF knew that: (1) Baez had been a customer at, and had had disputes with, both businesses; (2) he owned a Caprice with the same distinguishing features as the one seen on the surveillance tapes at the scene of both fires; and (3) he was the only individual the ATF had identified who fit both characteristics. The ATF also had reason to believe that Baez might engage in further arson. Given his altercations with both Jamaica Plain Auto Body and Back Bay Dental in the time period before the fires, Baez exhibited some of the traits of a serial arsonist, defined (according to an expert affidavit that is part of the record in this case) as a person who commits ‘three or more arsons at separate locations, with a cooling-off period in between,’ to relieve stress or exact revenge. Though the tracking went on for nearly a year, apparently without any evidence of criminal activity on Baez’s part, the record in this case also establishes that it is not uncommon for a significant amount of time (often months, but sometimes years) to pass between a serial arsonist’s fires. The particularly lethal nature of Baez’s July2009 fire provided further cause for concern: that fire was set in the front vestibule of a residential building in the middle of the night.”
Thus, given this factual backdrop, the First Circuit said there was nothing to suggest abuse in the protracted ATF surveillance of Baez’s vehicle. We disagree. The open-ended surveillance conducted by the ATF was the very kind of “dragnet” surveillance condemned by the Supreme Court in Jones based on the court’s historical precedents. The ATF effectively invited itself into Baez’s personal life, and, in essence, became that nightmare house guest refusing to leave until the hidden safe was discovered. Law enforcement agencies should not enjoy, regardless of the motives, a license to cast a dragnet over our personal lives until they sniff out some incident of wrongdoing.