U.S.A v. Walker

Decision Date11 February 2011
Docket NumberCase No. 2:10-cr-32
PartiesUNITED STATES OF AMERICA, Plaintiff, v. ASHLEY ROSE WALKER, Defendant.
CourtUnited States District Courts. 6th Circuit. United States District Court (Western District Michigan)

HON. ROBERT HOLMES BELL

OPINION

This matter is before the Court on Defendant's objections, (Dkt. No. 26), to Magistrate Judge Greeley's January 7, 2011, Report and Recommendation ("R&R"). (Dkt. No. 25.) In the R&R, the Magistrate Judge recommends that Defendant's Motion to Suppress Evidence, (Dkt. No. 13), be denied. The Court is required to review de novo those portions of the R&R to which specific objections are made. 28 U.S.C. § 636(b)(1). The Court may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. Id. For the reasons which follow, Defendant's objections will be overruled, and the R&R will be approved and adopted as the opinion of the Court.

I. Background

Defendant does not dispute the Magistrate Judge's factual findings-indeed, it appears that at least with respect to Defendant's motion to suppress, the facts of this case are not contested. Officers of the Upper Peninsula Substance Enforcement Team ("UPSET") first learned about Defendant in July 2009, after receiving tips from alleged co-conspirators.

(R&R 1.) Thereafter, UPSET officers made a controlled buy of crack cocaine from Defendant. (Id.) After the controlled buy, but without a warrant, officers placed a Guardian 811 Global Positional System ("GPS") tracking device on Defendant's vehicle. (Id.) The GPS device was removed, then reattached on three separate occasions. (Id. at 1-2) The Magistrate Judge found, and Defendant does not contest, that the GPS device was placed on her vehicle when it was in parking lots open to the public. (Id. at 2.) During this period, UPSET officers also received eight to ten tips that Defendant was trafficking in cocaine and made two additional controlled buys from Defendant. (Id.)

The GPS device used in this case has a "live track" feature which allows the device to be tracked in real time. (Id. at 2 n.1.) When live track is activated, the device makes regular reports on its location and on its speed and direction of travel via an integrated cellular device. However, live track was not used extensively in this case, as it quickly reduces the device's battery life. (Id. at 2.) Rather, the officers made use of a feature that allows the device to report its location when it crosses a "fence"-a preset virtual perimeter for a geographic area. (Id.) Officers believed that Defendant was purchasing crack cocaine from a source in Chicago. (Id.) On July 27, 2010, UPSET officers received text messages indicating that Defendant's vehicle had crossed a "fence" north of Chicago, and they confirmed that the vehicle was northbound. (Dkt. No. 20, Response to Motion to Suppress 7.) The officers obtained a warrant to search Defendant's vehicle and apartment. (Id.) The officers then positioned themselves along the route back to Defendant's home and were ableto stop her vehicle in western Marquette County, Michigan. (R&R 3.) A search of the vehicle turned up two ounces of crack cocaine and one half pound of marijuana. (Id.) A search of Defendant's apartment turned up scales, packaging material, and other evidence of drug trafficking. (Id.) Defendant was advised of, and waived, her Miranda rights, and she admitted her involvement in drug trafficking. (Id.)

Defendant moved to suppress that evidence, and the Magistrate Judge recommends that this Court deny her motion. Defendant now objects to the R&R, asserting that the evidence was the fruit of a poisonous tree-she alleges that the warrentless placement and monitoring of the GPS device constituted an unconstitutional search and seizure under the Fourth Amendment. (Objections ¶ 6.) Defendant also asserts for the first time in her Objections that GPS monitoring of Defendant's vehicle violates the constitution by its alleged "chilling effect" on her exercise of her First Amendment Rights. (Id. at ¶ 20.)

II. Discussion
A.) Fourth Amendment Search

The Magistrate Judge recommends that this Court join the Supreme Court in holding that "what a person knowingly exposes to the public... is not a subject of Fourth Amendment protection, " Katz v. United States, 389 U.S. 347, 351 (1967), and find that Defendant knowingly exposed her vehicle's location to the public when she drove on public roads. (R&R 7, 9.) The Court is inclined to agree and will deny Defendant's objections regarding a Fourth Amendment search on that basis.

That said, the Court acknowledges that this is a contentious issue regarding which there have been great differences of opinion among the federal courts. The starting point for all such analyses must lie in the Fourth Amendment, which provides that:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

There is nothing in the text of the Amendment which would positively require a warrant in order to make a search, nor indeed is there even a requirement of probable cause so long as the search is not "unreasonable, " but the Amendment does require probable cause for a warrant to issue, and the Supreme Court has long presumed that a warrant is required for a search to be reasonable. See United States v. Leon, 468 U.S. 897, 913-14 (1984). Thus, warrantless searches are presumptively unreasonable. See Mincey v. Arizona, 437 U.S. 385, 390 (1978). There are, however, a great many exceptions to this rule in which warrantless searches are deemed "reasonable" and thus quite acceptable. See, e.g., Draper v. United States, 358 U.S. 307, 310 (1959). In a great many of these cases, not even probable cause is required to make a search reasonable. See, e.g., Vernonia Sch. Dist. 47jv. Acton, 515 U.S. 646 (1995) (random drug testing of student athletes); Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (search of a probationer's home); New York v. Burger, 482 U.S. 691, 699-703 (1987) (search of the premises of certain highly regulated businesses); Skinner v. Ry. Labor Execs.' Ass'n, 489 U.S. 602 (1989) (drug and alcohol testing of railway employees). Often, the less stringent standard of "reasonable suspicion" applies. See Terry v. Ohio, 392 U.S. 1, 37 (1968) (Douglas, J., dissenting). Of course, if there is no search and no seizure (and no warrant issued), the Fourth Amendment does not require the application of any standards or requirements, even the overarching standard of reasonableness, because the protections of the Fourth Amendment are not triggered.

"A 'search' occurs 'when an expectation of privacy that society is prepared to consider reasonable is infringed.'" United States v. Karo, 468 U.S. 705, 712 (1984) (quoting United States v. Jacobsen, 466 U.S. 109, 113 (1984)). This standard breaks down into two discrete inquiries: "first, has the [defendant] manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?" California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Smith v. Maryland, 442 U.S. 735, 740 (1979)). A reasonable expectation of privacy may be affected by a number of factors, and although the Fourth Amendment protects people, not places, the question of what protection it affords those people generally requires reference to a place. Katz, 389 U.S. at 361 (Harlan, J., concurring). A person's expectation of privacy, and the reasonableness of that expectation, is higher in some areas and lower in others. The level of protection offered by the Fourth Amendment corresponds to the expectation and its reasonableness-the protection is strongest in the home and diminishes progressively in increasingly public venues and activities. With respect to the interior of vehicles, because "[o]ne has a lesser expectation of privacy in a motor vehicle, " "'[t]hesearch of an automobile is far less intrusive on the rights protected by the Fourth Amendment than the search of one's person or of a building.'" Cardwell v. Lewis, 417 U.S. 583, 590 (1974) (quoting Almeida-Sanchez v. United States, 413 U.S. 266, 279 (1973) (Powell, J., concurring)). The exterior of a vehicle has less protection still. See United States v. Rascon-Ortiz, 994 F.2d 749, 754 (10th Cir. 1993) ("The undercarriage is part of the car's exterior, and as such, is not afforded a reasonable expectation of privacy."). And, as noted above, what remains a steadfastly cardinal rule in a universe of varying expectations is that "[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." Katz, 389 U.S. at 351.

As Defendant notes in her objections, the Supreme Court has not yet considered whether GPS monitoring of a vehicle's location constitutes a Fourth Amendment search, but several circuit courts have and are split on the issue. (Objections ¶ 11.) Defendant relies on a recent decision by the Court of Appeals for the District of Columbia Circuit holding that prolonged GPS monitoring-24 hours a day for four weeks-was a Fourth Amendment search and was unreasonable without a warrant. United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). It appears, however, that the great weight of the law from other federal circuits rejects this view. See United States v. Garcia, 474 F.3d 994 (7th Cir. 2007) (holding that GPS tracking is not a search); United States v. Pineda-Moreno, 591 F.3d 1212, 1217 (9th Cir. 2010) ("We conclude that the police did not conduct an impermissible search of [defendant's] car by monitoring its location with mobile tracking devices."), reh 'g en banc denied 617 F.3d 1120 (9th Cir. 2010); see also United States v. Sparks, No. 10-10067, 2010 U.S. Dist. LEXIS...

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