Bailey v. State

Decision Date16 November 2020
Docket NumberNo. 1D18-4514,1D18-4514
Citation311 So.3d 303
Parties Brandon Joshua BAILEY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Andy Thomas, Public Defender, and M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Benjamin L. Hoffman, Assistant Attorney General, Tallahassee, for Appellee.

M.K. Thomas, J.

Brandon Bailey (Appellant) appeals his judgment and sentence for first-degree murder, armed robbery, and possession of a firearm by a convicted felon. He raises three arguments for reversal. His second argument—that the affidavit used by police to obtain the search warrant for his cell phone records failed to establish probable cause—is rejected, and we affirm without further comment. Appellant's remaining arguments are that the trial court erred: 1) in denying his motion to suppress warrantlessly-obtained Global-Positioning-System (GPS) records tracking his movements in a borrowed car; and 2) by failing to conduct a formal competency hearing before proceeding to trial in light of a previous order for a competency evaluation. For the foregoing reasons, we affirm in part and reverse in part.


In the early morning of February 17, 2016, Dustin Howell, the victim, was found shot to death in a park. His body had been stripped of valuables. Mr. Howell resided at an area hotel equipped with video cameras. Police were able to observe him on surveillance footage leaving the hotel with Appellant just after midnight. The footage also revealed Appellant returning to the hotel alone a few hours later.

Police learned that Appellant had been staying at the hotel with his girlfriend, the sole owner of a Honda Accord. The Honda was equipped with a GPS tracker by agreement between the girlfriend and her financing company.1 At trial, she testified that she periodically gave Appellant permission to use her car. However, she acknowledged that on the night of the murder, she called police to report her car stolen because she did not know that Appellant had left with her car. She also testified that when her car was not returned the next day, she contacted her financing company to track the car's location.

Police contacted the automobile financing company and requested limited GPS records of the Honda's movements from the time of the murder through the following day. The records were provided without a warrant. The GPS recorded the Honda's location in timed increments. The records indicated that the Honda was stopped at a home in the vicinity of the park at 1:32 a.m. and remained there for a short time. The Honda then travelled from the home and stopped at the park (where the victim was later found) between 1:49 a.m. and 1:57 a.m. before returning to the home at 2:02 a.m.

When police arrived at the home, the homeowner provided consent to view the home's surveillance cameras. The surveillance footage documented that the Honda had been driven to the home, consistent with the GPS data, and further documented that the codefendant and Appellant were present at the home. Warrants were obtained for a search of the home and for acquisition of the cell phone records of Appellant and the codefendant. Clothes matching those worn by Appellant on the night of the murder were found in the home, and the cell site location information (CSLI) from the cell phones matched the timeline of the GPS records.

After his indictment, Appellant moved to suppress the GPS records and all the fruits thereof, arguing that, pursuant to Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018), he had a reasonable expectation of privacy in his movements across the public roads. Thus, when the police obtained the records showing his recent movements in the Honda without a warrant, an illegal search occurred. The trial court disagreed and denied the motion to suppress, reasoning as follows:

This was a third party GPS device that was not owned by the defendant; the defendant had no expectation of privacy on a device that was not his, nor the owner of the car, as it belonged to a finance company that put it on the car for the purpose of taking care of where it was in case they had to go repossess it. And the sheriff's office in this case was not required to obtain either a search warrant or a subpoena to go get the third party information based on the facts of this case. And the Court finds that Carpenter just simply does not apply to this case.

Prior to trial, Appellant's attorney requested a competency evaluation which was granted by the trial court. However, the record falls silent regarding any further action taken on the matter.

II.Whether the Warrantless Acquisition of the GPS Data Constitutes an Illegal Search

A trial court's ruling on a motion to suppress comes to this Court with a presumption of correctness. See State v. Markus , 211 So. 3d 894, 902 (Fla. 2017). An appeal of a trial court's ruling on a motion to suppress generally presents a mixed question of law and fact. See Pagan v. State , 830 So. 2d 792, 806 (Fla. 2002) ; Connor v. State , 803 So. 2d 598, 608 (Fla. 2001) ; Duke v. State , 255 So. 3d 478, 480 (Fla. 1st DCA 2018). Florida courts decide search and seizure issues in conformity with the Fourth Amendment decisions of the Supreme Court of the United States. Art. I, § 12, Fla. Const.; Cox v. State , 975 So. 2d 1163, 1166 (Fla. 1st DCA 2008).

Appellant argues the trial court erred in denying his motion to suppress because it improperly concluded that no search occurred when the police obtained the vehicle's GPS data—a legal issue reviewed de novo.2 See Pagan , 830 So. 2d at 806. He claims the police action constituted a "search" because he had a reasonable expectation of privacy in his movements while operating the vehicle owned by his girlfriend.3

In assessing a suppression motion, the court begins with two threshold questions: 1) has there been a search; and 2) if so, was it reasonable? United States v. Correa , 908 F.3d 208, 217 (7th Cir. 2018) ; see also Carpenter , 138 S. Ct. at 2215 n.2 (cautioning against "conflat[ing] the threshold question whether a ‘search’ has occurred with the separate matter of whether the search was reasonable"). Pursuant to United States v. Knotts , 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983), we answer the initial question in the negative as Appellant did not have a reasonable expectation of privacy. We now flesh out our path to this end.

The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Amend. IV, U.S. Const. Thus, there must be a "search" or a "seizure" to trigger the Fourth Amendment's protections. "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." Morgan v. United States , 323 F.3d 776, 780–81 (9th Cir. 2003) (quoting Florida v. Jimeno , 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ). Generally, "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions." Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

Upon its drafting and ratification, the Fourth Amendment was intended to prevent threats to individual liberty that were prevalent at the founding: intrusions by the government into private property. Such intrusions, in the late-eighteenth century, included general warrants and writs of assistance. Carpenter , 138 S. Ct. at 2264 (Gorsuch, J., dissenting). Thus, historical analysis centered on the Fourth Amendment's immediate connection to property. Id. at 2239 (Thomas, J., dissenting) (citing United States v. Jones , 565 U.S. 400, 405, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) ). However, in 1967, the Supreme Court redefined what constitutes "search" and "seizure" and expanded the protections of the Fourth Amendment to include "what [a person] seeks to preserve as private, even in an area accessible to the public." Katz , 389 U.S. at 351, 88 S.Ct. 507. Justice Harlan's concurrence in Katz announced a new "twofold requirement" to establish Fourth Amendment protection: "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ " 389 U.S. at 361, 88 S.Ct. 507. This " Katz test" became the "lodestar" of Fourth Amendment analysis.

Smith v. Maryland , 442 U.S. 735, 749, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). "Over time, the Court minimized the subjective prong of Justice Harlan's test. That left the objective prong—the ‘reasonable expectation of privacy’ test that the Court still applies today." Carpenter , 138 S. Ct. at 2238 (Thomas, J., dissenting) (citing Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations , 82 U. Chi. L. Rev. 113 (2015) ).

Yet, "recent Fourth Amendment cases have clarified that the [ Katz ] test ... supplements, rather than displaces, ‘the traditional property-based understanding of the Fourth Amendment.’ " Byrd v. United States , ––– U.S. ––––, 138 S. Ct. 1518, 1526, 200 L.Ed.2d 805 (2018) (internal citation omitted) (quoting Florida v. Jardines , 569 U.S. 1, 11, 133 S.Ct. 1409, 185 L.Ed.2d 495 (2013) ). The Katz mechanism has been touted as inconsistent, untenable, and ever-changing. Carpenter , 138 S. Ct. at 2244 (Thomas, J., dissenting). The Supreme Court decisions in Jones in 2012 and Carpenter in 2018 further added to the murkiness of its application. As noted by Justice Alito in his concurring opinion in Jones , "it is almost impossible to think of late-18th century situations that are analogous" to 21st-century surveillance techniques. 565 U.S. at 419, 132 S.Ct. 945. Regardless, the judiciary is "obligated,...

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