United States v. Sparks

• Decision Date: 26 March 2013
• Docket Number: Nos. 11–1134,11–1143.,s. 11–1134
• Citation: 711 F.3d 58
• Parties: UNITED STATES of America, Appellee, v. Craig SPARKS, Defendant, Appellant. United States of America, Appellee, v. Benjamin Michaud, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

711 F.3d 58

UNITED STATES of America, Appellee,

v.Craig SPARKS, Defendant, Appellant.

United States of America, Appellee,

v.Benjamin Michaud, Defendant, Appellant.

Nos. 11–1134, 11–1143.

United States Court of Appeals, First Circuit.

March 26, 2013.

Jeffrey W. Langholtz for appellant Craig Sparks.

Roger A. Cox for appellant Benjamin Michaud.

Robert E. Richardson, Assistant United States Attorney, with whom Carmen Ortiz, United States Attorney, was on brief, for appellee.

Before Howard, Circuit Judge, Souter,^* Associate Justice, and Stahl, Circuit Judge.

STAHL, Circuit Judge.

In December 2009, federal agents, acting without a warrant, placed a global positioning system (GPS) tracker on a car used by appellant Craig Sparks. The agents used the tracker to locate the car at the scene of a bank robbery and then to chase down the car on the highway after it fled. A search of the car revealed evidence tying Sparks and his fellow appellantBenjamin Michaud to the bank robbery, leading to their indictment. Sparks and Michaud now appeal the district court's denial of their motion to suppress that evidence, arguing that, under the Supreme Court's recent decision in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), the agents' use of the GPS tracker was a Fourth Amendment “search” that required a warrant. We affirm without reaching that question, because we conclude that the agents' conduct fits within the good-faith exception to the exclusionary rule.

I. Facts & Background

The facts of this case are not disputed. The Federal Bureau of Investigation (FBI) suspected Sparks of committing three bank robberies in late 2009. Accordingly, in the early hours of December 24, 2009, FBI agents affixed a GPS tracker to a black Chrysler sedan registered to Sparks's mother but used by Sparks himself. At the time, the Chrysler was parked in a private parking lot used by tenants of two adjacent residential buildings, including Sparks himself. The agents did not have a warrant to place the tracker on the car.

The GPS tracker enabled the agents to track the car's location in real time by logging onto a website. The tracker had its own battery and thus drew no power from the car. In fact, the tracker's battery failed shortly after installation, prompting the agents to replace the battery and reattach the tracker on December 29.

On January 4, 2010 (eleven days after the tracker's initial installation), the agents, using the tracker, located the Chrysler in Waltham, Massachusetts. When the agents reached the car at approximately 12:15 p.m., it was parked near the intersection of Ash and Crescent Streets, unoccupied but with the engine running. The agents took up position nearby to watch the car.

Roughly ten minutes later and two blocks away, two men entered the Bank of America branch on Moody Street, wearing dark clothing and ski masks and brandishing what appeared to be handguns. They demanded money. After obtaining approximately $10,676 in cash, they left the bank, and fled in a red SUV with the license plate number 4205YN.

Moments later, the same red SUV pulled up across from the Chrysler and two men in dark hooded sweatshirts, one of whom carried a dark-colored bag, emerged. They ran to the Chrysler, climbed in, and drove off. The watching agents tried to follow, but became ensnarled in traffic. Thanks to the GPS tracker, however, they located the Chrysler heading north on Route 128 and caught up to it. As the car passed through Lexington, a Massachusetts State Police cruiser attempted to pull it over, but the Chrysler's driver slammed on the brakes, sending the car into a ditch along the side of the highway. The two occupants fled into the woods, temporarily evading the agents' grasp.

A quick search of the car revealed two BB guns that resembled the weapons brandished by the bank robbers. A subsequent, more thorough search uncovered further incriminating evidence, including clothing and latex gloves like those worn by the robbers, a knife and a dagger, identification belonging to both defendants, and a screwdriver. (The latter was relevant because the red SUV's ignition had been “popped,” allowing it to be started with a screwdriver. The SUV turned out to have been stolen in Charlestown.) Investigators also found, in the woods into which the suspects fled, $1,381 in cash and a bag containing two dark hooded sweatshirts.

The Lexington Police apprehended defendant Michaud later that afternoon. He was found with roughly $9,284 in cash (bearing money bands from the bank), two black ski masks, and white latex gloves. He was also wearing mismatched shoes, the mates of which were found in the Chrysler. Sparks proved somewhat harder to catch; he was ultimately collared in Maine a few weeks later.

After both defendants were indicted, Sparks moved to suppress the evidence obtained as a result of the placement of the GPS tracker on the Chrysler. United States v. Sparks, 750 F.Supp.2d 384, 387 (D.Mass.2010). Michaud entered a conditional guilty plea and, with the district court's permission, joined Sparks's suppression motion. See id. at 387 n. 4. After thoroughly considering the defendants' privacy interests in the parking lot where the GPS tracker was installed, id. at 388–90, the exterior of the car, id. at 390–91, and the information the tracker revealed about their travel, id. at 391–96, the district court denied the motion to suppress. The court concluded that the case was governed by United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), which held that using a radio-based tracking device to tail a suspect's car was not a Fourth Amendment search, because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281, 103 S.Ct. 1081. Sparks thus entered a guilty plea of his own, and the government agreed that both defendants could appeal the suppression issue (with a caveat as to Michaud that is not relevant here). The district court sentenced each defendant to 188 months' imprisonment and five years' supervised release.

II. Analysis

After the district court denied the motion to suppress, the Supreme Court decided United States v. Jones, which held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search’ ” for Fourth Amendment purposes. 132 S.Ct. at 949 (footnote omitted). The Justices all agreed that a search had occurred, but differed as to why. The five-Justice majority held that a search occurred because “[t]he Government physically occupied private property for the purpose of obtaining information.” Id. The majority opinion emphasized that the government had committed a common-law trespass by installing the tracker on the defendant's car. See id. at 949–50. Justice Sotomayor provided the fifth vote for that position because she agreed that a search occurs “at a minimum” where the government obtains information via physical intrusion, id. at 954 (Sotomayor, J., concurring), but wrote separately to caution that “physical intrusion is now unnecessary to many forms of surveillance,” and to suggest that “some unique attributes of GPS surveillance ... will require particular attention” in future cases, id. at 955. Finally, Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, took issue with the majority's trespass-based approach but nevertheless found that a search had occurred under the reasonable-expectation-of-privacy test articulated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See132 S.Ct. at 957–64 (Alito, J., concurring in the judgment).

Jones thus establishes that the district court's reason for denying the suppression motion in this case—that “the placement of the GPS device on the vehicle cannot be considered a search,” 750 F.Supp.2d at 391—is no longer sound. Consequently, this appeal turns on two questions that remain open after Jones: whether the kind of search recognized in Jones and conducted here requires a warrant (instead of mere probable cause or reasonable suspicion), and, if so, whether the resulting evidence can nevertheless avoid suppression under the good-faith exception to the exclusionary rule articulated in Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011).¹

Few courts (and no circuits that we know of) have grappled with the warrant question so far, largely because the searches at issue in recent cases occurred pre-Jones, allowing the government to argue, and a number of courts to find, that the good-faith exception would apply even if the searches were unconstitutional. E.g., United States v. Andres, 703 F.3d 828, 834–35 (5th Cir.2013); United States v. Pineda–Moreno, 688 F.3d 1087, 1090 (9th Cir.2012); see generally Caleb Mason, New Police Surveillance Technologies and the Good–Faith Exception: Warrantless GPS Tracker Evidence After United States v. Jones, 13 Nev. L.J. 60 (2012). Those courts that have found GPS tracking to require a warrant have typically reached that conclusion by rejecting the government's attempts to fit GPS tracking within the Fourth Amendment's automobile exception. See United States v. Ortiz, 878 F.Supp.2d 515, 535–36 (E.D.Pa.2012); United States v. Katzin, No. 11–226, 2012 WL 1646894, at *6 (E.D.Pa. May 9, 2012), appeal pending, No. 12–2548 (3d Cir. argued Mar. 19, 2013). Some have also more broadly considered the balance of privacy and governmental interests at stake, concluding that the scales tip in favor of requiring a warrant. United States v. Ford, No. 11–CR–42, 2012 WL 5366049, at *8 (E.D.Tenn. Oct. 30, 2012); Ortiz, 878 F.Supp.2d at 530–33;see also Jones, 132 S.Ct. at 955 (Sotomayor, J., concurring) (emphasizing the impact that GPS monitoring can have on a person's privacy); United States v. Maynard, 615 F.3d 544, 562 (D.C.Cir.2010) (same), aff'd sub...