U.S. v. Hernandez

• Decision Date: 18 July 2011
• Docket Number: No. 10–10695.,10–10695.
• Citation: 647 F.3d 216
• Parties: UNITED STATES of America, Plaintiff–Appelleev.Jose Juan HERNANDEZ, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

647 F.3d 216

UNITED STATES of America, Plaintiff–Appellee
v.
Jose Juan HERNANDEZ, Defendant–Appellant.

No. 10–10695.

United States Court of Appeals, Fifth Circuit.

July 18, 2011.

[647 F.3d 217]

Kevin R. Gingras (argued), Criminal Div., U.S. Dept. of Justice, Washington, DC, Susan Cowger, Asst. U.S. Atty., Dallas, TX, for Plaintiff–Appellee.Reynaldo Antonio De Los Santos (argued), De Los Santos & Associates, P.C., San Antonio, TX, for Defendant–Appellant.Appeal from the United States District Court for the Northern District of Texas.Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit Judges.EDITH H. JONES, Chief Judge:

Jose Juan Hernandez appeals the district court's order denying his motion to suppress illegal drugs obtained after federal agents inserted a GPS device on the undercarriage of his brother's truck, without a warrant, to track its whereabouts. Concluding that Hernandez has “standing” to challenge the use, but not the placing, of the device, we find no error in the district court's decision and affirm the conviction.

BACKGROUND

In 2007, Drug Enforcement Administration agents began investigating the appellant's

[647 F.3d 218]

brother, Angel Hernandez (“Angel”), for suspected drug trafficking in the Dallas, Texas area. Through prior surveillance, the officers knew Angel drove a Chevrolet pickup truck in his drug trafficking operation. The truck was registered to Angel, and visual surveillance confirmed that Angel was the primary driver, although Angel's girlfriend also drove the truck on occasion.

Early in the morning of February 13, 2008, a DEA agent observed the truck parked on a public street in front of Angel's residence. Sometime between midnight and 4:00 a.m., an agent crawled under the back of the truck and attached a GPS tracking device to the undercarriage with a magnet. The agent did not have a warrant to attach or use the device. Soon afterward, the GPS began transmitting the truck's location to DEA officers in the Dallas Communication Center.

This unsophisticated battery-operated GPS device, known as a “slap-on tracker,” was accurate to 50 yards, but could neither relay a precise address nor transmit a signal from an enclosed area like a garage. Instead of a continuous signal, the device emitted a “ping” at intervals ranging from 15 minutes to two hours.

Two days after the GPS was installed, DEA agents intercepted phone calls (pursuant to a warrant) between Angel and Jose Hernandez (“Hernandez”), the appellant here. The calls indicated that Hernandez was driving Angel's truck to a particular hotel in California to pick up drugs for the Texas operation. Using the GPS device, agents determined that Hernandez was driving the truck westbound on a highway. In California, DEA agents were informed of the transaction, located Hernandez's truck and conducted visual surveillance without the GPS.¹ The officers observed Hernandez load several packages onto the truck before leaving the hotel. They contacted local patrol officers who stopped Hernandez for traffic violations; he consented to a vehicle search that produced 20 pounds of methamphetamine hidden in the packages.

Hernandez was eventually charged in federal court with one count of conspiracy to possess with intent to distribute and distribution of a controlled substance in violation of 21 U.S.C. § 846. After seeking unsuccessfully to suppress the methamphetamine evidence, Hernandez entered a conditional plea agreement and was sentenced to 188 months imprisonment. He timely appealed. This court has jurisdiction pursuant to 28 U.S.C. § 1291.

DISCUSSION

On appeal of a motion to suppress, “the district court's findings of facts are reviewed for clear error, viewing the evidence in the light most favorable to the government. The district court's conclusions of law are reviewed de novo. The panel may affirm the district court's decision on any basis established by the record.” United States v. Charles, 469 F.3d 402, 405 (5th Cir.2006) (internal citations and quotation marks omitted).²

[647 F.3d 219]

Hernandez argues that both the placement and the use of the GPS device independently violated his Fourth Amendment rights, requiring suppression of the recovered drugs. A preliminary issue raised by the government, however, is whether Hernandez lacks “standing” to pursue these claims.

I. Standing

The government contends that Hernandez does not have standing to challenge the placement or use of the GPS device because he had no reasonable expectation of privacy in the truck. The district court declined to decide whether Hernandez had standing.

Hernandez cannot claim the protection of the Fourth Amendment unless he “has a legitimate expectation of privacy in the invaded place.” Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). This requirement is typically referred to as “standing,” although the term is used “for brevity's sake” and exists apart from the question of Article III standing. See United States v. Pack, 612 F.3d 341, 347 (5th Cir.2010). Hernandez's expectation must be “personal[ ]” and “reasonable,” and it must have “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (citations and internal quotations omitted). Standing does not require an ownership interest in the invaded area; in Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), for example, the Court recognized that an overnight guest in a home has a legitimate expectation of privacy in that home. Hernandez bears the burden of establishing standing. See Rakas, 439 U.S. at 130 n. 1, 99 S.Ct. 421.

We conclude that Hernandez lacks standing to challenge the placement of the GPS device on his brother's truck. The truck was registered to Angel. Angel was the primary driver, but Hernandez was not a regular driver. When the GPS was attached, the truck was parked on the street at Angel's house, and nothing in the record suggests that Hernandez had any possessory interest in that house.³

Moreover, the government did not place the GPS device with the intent of tracking Hernandez. (Angel, on the other hand, was under court-approved...