United States v. Baez

• Decision Date: 16 July 2012
• Docket Number: Criminal Action No. 10–10275–DPW.
• Citation: 878 F.Supp.2d 288
• Parties: UNITED STATES of America, v. Jose BAEZ, Defendant.
• Court: U.S. District Court — District of Massachusetts

878 F.Supp.2d 288

UNITED STATES of America,

v.Jose BAEZ, Defendant.

Criminal Action No. 10–10275–DPW.

United States District Court, D. Massachusetts.

July 16, 2012.

David G. Tobin, United States Attorneys Office, Boston, MA, for United States of America.

MEMORANDUM AND ORDER

DOUGLAS P. WOODLOCK, District Judge.

The question presented is whether evidence gathered through a technique authorized by a number of Courts of Appeals—other than the First Circuit which had not addressed the issue—should be suppressed in this arson case because the Supreme Court held the technique violative of the Fourth Amendment well after the evidentiary initiative used here was completed. I conclude that the exclusionary remedy is not appropriate in these circumstances and will consequently deny the defendant's motion to suppress.

Defendant Jose Baez has moved to suppress the fruits of a number of searches and seizures which federal agents conducted on the basis of evidence gathered, without a warrant, by monitoring his movements through GPS tracking devices. After the GPS monitoring in this case was concluded, the Supreme Court in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) declined to join a clear majority among those Courts of Appeals that had addressed the question and held the technique was a search within the scope of the meaning of the Fourth Amendment for which a warrant was required. Nevertheless, applying the teachings of Davis v. United States, –––U.S. ––––, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), I decline to suppress the evidence gathered through that technique in this case because the purposes of the exclusionary rule would not be served. Where, as here, law enforcement officers at the time they act have a good faith basis to rely upon a substantial consensus among precedential courts, suppression of probative evidence is too high a price to pay because of the subsequent supervention of that consensus by the Supreme Court.

I. FACTS

As will appear below, the evidentiary meat of the government's case against Baez is marbled with elements derived from GPS monitoring which give the case significant texture, taste, and cohesion.¹ To understand the case in full, an extended review of the facts is necessary. The parties largely agree on the facts, which I recite below.

A. The Fires Prompting Investigation

Early in the morning on April 29, 2009, firefighters responded to a fire at Jamaica Plain Auto Body in Jamaica Plain, Boston, Massachusetts. Investigators determined that the fire was the result of arson that originated in front of the garage bay doors where piles of burnt tires and clothing were found. Surveillance camera footage showed that an older-model, dark Chevrolet Caprice with silver trim, a light-colored steering wheel cover, and a silver emblem on the driver's-side C-pillar ² of the vehicle drove onto the road leading to the auto shop moments before the fire began.

On July 31, 2009, firefighters responded to a fire in a brownstone condominium complex in Kenmore Square, Boston, Massachusetts. The complex contained a dentist's office, Back Bay Dental, as well as condominiums. Firefighters found burned tires and clothes, and detected the odor of gasoline, in the building's front vestibule. A witness told officers that he had seen a light-skinned man with dark hair and medium build run away from the building moments before the fire and drive away in a dark-colored mid-sized sedan. Surveillance cameras recorded an older-model, dark-colored Chevrolet Caprice with silver trim travel in the alley next to the building just before the fire.

B. ATF Agents Suspect Baez

Based on the surveillance tapes from both locations, agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”) determined that the vehicle was a Chevrolet Caprice manufactured between 1986 and 1989. After obtaining a list from the Massachusetts Registry of Motor Vehicles of the thirty-eight dark-colored Chevrolet Caprices manufactured during that time period that were registered to addresses in the Boston area, ATF officers located and observed each vehicle to see if it had the distinctive characteristics observed in the surveillance tapes, including the silver trim, light-colored steering wheel, and silver emblem located on the driver's-side C-pillar.

Agent Brian Oppedisano of the ATF observed that a Chevrolet Caprice belonging to Baez, unlike most of the other vehicles reviewed, matched the distinguishing characteristics of the vehicle in the surveillance tapes.

Agent Oppedisano cross-checked the list of dark-colored Chevrolet Caprices with the list of patients at Back Bay Dental. Baez was the only owner of a Chevrolet Caprice in the proper color and model-year who was also a patient at Back Bay Dental. Back Bay Dental's office manager remembered Baez because in September 2008, he had his veneers re-cemented and he became angry when he needed them re-cemented again in June 2009. The office manager recalled that in June, Baez was argumentative, and repeatedly threatened that he would not pay for the re-cementing.

Baez had also been a customer of Jamaica Plains Auto Body, which had been set on fire in April. Agent Oppedisano talked to the owner and operator of the body shop and with his permission searched the business's records. The owner of the shop noted that a customer later determined to be Baez had come to the shop in the summer of 2008 to fix a water leak in the trunk of his older, black, vinyl-roofed Chevrolet Impala. Baez was not satisfied with the quality of the work, and demanded his money back. The owner refused and Baez became upset, later filing a claim in small claims court. Baez lost his case; the owner of the body shop provided Agent Oppedisano with a copy of the small claims court's judgment, dated September 18, 2008.

C. GPS Tracking

On August 27, 2009, Agent Oppedisano attached a GPS device to Baez's Chevrolet Caprice while it was parked on a public road in front of his apartment. The GPS device sent Agent Oppedisano a text message any time the vehicle traveled outside of a perimeter around Baez's residence.³

From January 2010 until August 2010, Baez's Chevrolet Caprice traveled outside of the perimeter of Baez's house on twenty-six days. During the last week before Baez was arrested for arson, however, Baez traveled outside of the perimeter on six out of seven days.

On August 9, 2010, at 3:21 a.m. (roughly the same time when the April and July fires were reported), the GPS device attached to Baez's car reported that it had left the perimeter. Agent Oppedisano received a text message alerting him to Baez's movement. By logging on to a website, Agent Oppedisano was able to determine that the GPS device was stopped near 5 Bexley Road in Roslindale, where it remained for approximately seventeen minutes. Because this was an unusual break from Baez's travel patterns, and matched the timeline of the previous arsons, Agent Oppedisano alerted law enforcement personnel regarding Baez's movements and directed officers to the area.

At approximately the same time, a fire was reported at 11 Firth Road in Roslindale. Firth Road runs parallel to Bexley Road. The structure at 11 Firth Road was a two-and-a-half story home, occupied both by tenants and the owner. Investigators determined that the fire originated on the front porch of the home, where a strong odor of gasoline was detected. Trained arson canines detected ignitable liquids around the area of the fire's origin, which investigators determined to be an arson. Two of the residents of 11 Firth Road were asked if they knew Baez. After being shown a photo array, they identified Baez as a man who had sold them tickets in the Dominican lottery.

Boston Police Detective James Freeman located Baez in his vehicle in front of his residence a few minutes after the fire was reported. As Detective Freeman approached, Baez lowered his driver's side window, and Freeman smelled a strong odor of gasoline coming from the interior of the Caprice. Freeman arrested Baez, read him his Miranda rights, and took him into custody.

Officers searched Baez and found a box of matches in his pocket. During a later interview, Baez claimed that the matches were in his pocket because he was a smoker. Officers report that during all of the searches they subsequently performed, no cigarettes were ever found.

Officers later discovered that surveillance cameras near Baez's residence showed him leaving his home shortly before the Firth Road fire. Traffic cameras from Columbia Road (the road in front of Baez's residence) showed Baez's Chevrolet Caprice driving in the direction of the Firth Road fire at 3:20 a.m.

D. Subsequent Searches

Later on August 9, officers executed search warrants on Baez's Chevrolet Caprice and his apartment. Officers found Poland Springs bottles which contained residue of gasoline in the Caprice's trunk, and traces of gasoline were found on the vehicle's passenger-side floor carpeting and on the driver's seat. Baez's residence contained matches found in a towel, computers, notebooks, maps and an index card linking him to the Whole Foods grocery store in the Fresh Pond area of Cambridge that had been the victim of arson in December 2008. An ATF agent at the scene remembered that the Whole Foods arson involved a wick made of clothing with a laundry stamp of “Baez” on it.

On August 13, 2010, officers executed a search warrant at a garage in West Roxbury that was rented to Baez. Agent Oppedisano knew of the garage because the GPS on Baez's Caprice had been stationary in front of the garage for a period of time two days before the Firth Road fire. Officers found tires, plastic containers with gasoline residue, and other materials associated with arson. They also found a Whole Foods apron, and a shirt with laundry tags with “Baez” on them like the shirt used as a wick in the Whole Foods arson. On September 16, police conducted a search with Baez's consent...