United States v. Asghedom

• Decision Date: 15 January 2014
• Docket Number: No. 12–501–LSC–TMP.,12–501–LSC–TMP.
• Court: U.S. District Court — Northern District of Alabama
• Parties: UNITED STATES of America, Plaintiff, v. Biniam ASGHEDOM, Defendant.

992 F.Supp.2d 1167

UNITED STATES of America, Plaintiff,

v.Biniam ASGHEDOM, Defendant.

No. 12–501–LSC–TMP.

United States District Court,

N.D. Alabama,

Southern Division.

Jan. 15, 2014.

Joyce White Vance, Gregory R. Dimler, U.S. Attorney's Office, U.S. Probation, United States Probation Office, USM, United States Marshal, Birmingham, AL, for Plaintiff.

Adam Anthony Bollaert, Steven D. Eversole, Eversole Law, Birmingham, AL, Rita M. Briles, Law Offices of Rita M. Briles, PC, Gardendale, AL, for Defendant.

Order Accepting Report and Recommendation

L. SCOTT COOGLER, District Judge.

This court has reviewed the Report and Recommendation of the Honorable T. Michael Putnam, United States Magistrate Judge entered the 31st day of December, 2013 (Doc. 44) denying the Motions to Suppress filed by the Defendant on November 6, 2013 (Doc. 31) and on November 11, 2013 (Docs. 33, 34). In addition, this court has made a de novo determination of those findings and portions objected to by the Defendant.

It is Ordered that the Report and Recommendation of the Honorable T. Michael Putnam, United States Magistrate Judge entered the 31st day of December, 2013 be accepted as entered. This court adopts the report and recommendation as the Order of this court as if the same were set forth at this point in extenso. The Motions to Suppress filed by the Defendant (Docs. 31, 33, 34) are DENIED.

SECOND REPORT AND RECOMMENDATION

T. MICHAEL PUTNAM, United States Magistrate Judge.

On December 5, 2013, the court conducted a suppression hearing with respect to defendant's motions filed on November 6 and 11, 2013. On November 6, 2013, the defendant filed his pro se “Motion for Hearing Objections to Issue of Tracking Device” (Doc. 31), followed on November 11 by counsel's motion for leave to file additional pretrial motions ¹ and two additional motions to suppress evidence. (Docs. 33 & 34). The pro se motion and both new motions to suppress deal principally with the same issue: whether evidence obtained from a consent search of the defendant's vehicle should be suppressed because law enforcement officers were tracking the vehicle with a GPS tracking device attached to the vehicle without a warrant.² In effect, these motionsare a prequel to the traffic stop and consent search addressed in the court's earlier report and recommendation arising from the defendant's first motion to suppress (Doc. 25). The motions seek to suppress the evidence seized in the consent search on the basis that the warrantless GPS tracker tainted the subsequent traffic stop and consent search.

I. Findings of Fact

As a result of the suppression hearing and arguments of counsel, the court finds the following facts pertinent to the issue:

1. For some period of time prior to October 2010, Drug Enforcement Administration agents had been investigating the drug-trafficking activities of Artavis McGowan and others associated with a residence at 108 Page Avenue in Birmingham. Part of the investigation had focused on defendant, from whom agents had made two undercover purchases of cocaine.

2. On each occasion on which undercover buys were made, defendant was driving a black GMC pickup truck registered to Sharia Harris, a known associate of Artavis McGowan. On other occasions when agents had him under surveillance, defendant was always driving the same truck. It was usually parked at night at an apartment complex where defendant appeared to reside.

3. In late October or early November 2010, agents attached a self-contained, battery-powered GPS tracking device to the undercarriage of the truck as it was sitting the parking lot of the apartment complex at which defendant was believed to reside. About two weeks later, agents returned and replaced the battery on the device, again as the truck was parked in the parking lot. On neither occasion did the agents have a warrant authorizing them to do so.

4. While the tracking device was capable of continuous monitoring of the location of the truck, doing so depleted the battery very quickly. To preserve battery life, agents could remotely set a timer to report the location of the truck on intervals from every 30 minutes to every 12 hours, and they frequently set the interval at 8 to 12 hours during periods of the night when the truck was parked. The agents only spot checked the location at certain intervals, rather than maintain continuous tracking.

5. The tracking-device software also allowed agents to set up a “geofence” around certain locations, including the Page Avenue residence. A “geofence” is a perimeter set up around certain locations based on the GPS coordinates of the locations. If the tracking device crossed into a fenced area, it would alert agents immediately, without regard to the time-interval settings on the device.

6. On December 1, 2010, agents were alerted by the GPS device that it had crossed into the geofence set up around the Page Avenue residence. Based on the alert, DEA agents and Birmingham police officers went to the area, and they spotted the black GMC truck parked at the Page Avenue residence. Due to the close proximity of houses in the area and a concern about being detected, agents could not maintain constant visual surveillance, but they drove by the residence periodically to see if the truck was still there.

7. The truck remained at the Page Avenue residence about 15 to 20 minutes before the GPS device alerted agents that it was moving again. Agents located the truck on Arkadelphia Road, a few blocks from Page Avenue. A marked Birmingham police cruiser was called in to follow the truck and make a traffic stop if a traffic violation was observed. After following the truck for about a quarter of a mile, the police officers observed it change lanes without signaling, and they initiated a traffic stop.³

II. Conclusions of Law

As a result of the traffic stop and subsequent consent search of the truck, police found both cocaine and a large sum of money in the truck console. Defendant's fingerprints were on the plastic bags containing the cocaine. It is this evidence of cocaine, money, and fingerprints the defendant seeks to suppress, arguing that the use of a GPS tracking device without a court warrant constituted an illegal search in violation of his Fourth Amendment rights. He cites United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), in support of his argument. He also contends that the evidence should be suppressed as a sanction for the government's failure to reveal in discovery that a tracking device was on the truck and used to locate it before the traffic stop.

In opposition to the motion, the government concedes that the defendant has standing to challenge the search of the truck, notwithstanding his lack of ownership, as he was a bailee with a possessory interest in it. Even so, the government asserts that the evidence seized from the truck is not due to be suppressed because (1) the law enforcement agents had a good faith basis for believing on December 1, 2010, that a warrant was not required for the use of the tracking device, and (2) the traffic stop made by the Birmingham police officers was an intervening event that attenuated any taint from the warrantless tracking device.⁴ The government also denies that any sanction is necessary for discovery abuse, and that certainly suppression of evidence is too harsh a sanction, if one is warranted.

a) Fourth Amendment

On January 23, 2012, more than a year after the defendant's traffic stop and arrest in this case, the Supreme Court announced its decision in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), in which it held that the warrantless placement of a GPS tracking device on a vehicle constituted a search for Fourth Amendment purposes.⁵Jones grounded its reasoning not on the Katz reasonable expectation of privacy analysis,⁶ but on the older, common law prohibition against trespassing on private property. The Court noted, of course, that its case precedent does not recognize a privacy interest in a person's location on a public street. “This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo, 533 U.S. at 31–32, 121 S.Ct. 2038. We accordingly held in Knotts that ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ 460 U.S. at 281, 103 S.Ct. 1081.” United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012). Thus, while the tracking device may not have violated Jones's reasonable expectation of privacy under Katz, that is not the only interest protected by the Fourth Amendment. It also protects traditional property interests against government trespasses. The Court wrote:

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U.S. 27, 31, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001); Kerr, “The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution,” 102 Mich. L.Rev. 801, 816 (2004). Thus, in Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944 (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants,” id. at 464, 48 S.Ct. 564.

United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 949–50, 181 L.Ed.2d 911 (2012).

In the instant case, the warrantless attachment of a GPS tracking device on the black GMC pickup driven...