United States v. Diggs

• Decision Date: 13 May 2019
• Docket Number: 18 CR 185-1
• Parties: UNITED STATES of America, Plaintiff, v. Tobias DIGGS, Marvon Hamberlin, and Joshua McClellan, Defendants.
• Court: U.S. District Court — Northern District of Illinois

385 F.Supp.3d 648

UNITED STATES of America, Plaintiff,

v.Tobias DIGGS, Marvon Hamberlin, and Joshua McClellan, Defendants.

18 CR 185-1

United States District Court, N.D. Illinois, Eastern Division.

Signed May 13, 2019

AUSA, Albert Berry, III, United States Attorney's Office, Chicago, IL, Pretrial Services, for Plaintiff.

Douglas E. Whitney, Douglas Whitney Law Offices LLC, Michael John Petro, Petro & Associates, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Gary Feinerman, United States District Judge

Tobias Diggs, Marvon Hamberlin, and Joshua McClellan are charged under the Hobbs Act, 18 U.S.C. § 1951(a), for the robbery of a Razny Jewelers store in Hinsdale, Illinois on March 17, 2017. Doc. 1. While investigating the robbery, a Hinsdale detective obtained from a third party—without a warrant—more than a month's worth of Global Positioning System ("GPS") location data for a vehicle associated with Diggs. Doc. 56-1 at 2-5. Diggs moves to suppress the GPS evidence. Doc. 49. The motion is granted.

Background

Because there are no "disputed issues of material fact that will affect the outcome" of Diggs's motion, an evidentiary hearing is not required. United States v. Edgeworth , 889 F.3d 350, 353 (7th Cir. 2018) (internal quotation marks omitted). The undisputed facts, drawn primarily from police reports and search warrant applications, are as follows.

While investigating the Razny Jewelers robbery, Hinsdale detectives came to believe—based on witness statements, video surveillance, and an anonymous tip relayed by another law enforcement officer—that the getaway vehicle was a 2003 Lexus RX with Michigan license plate number DPA 8960. Doc. 50-1 at 4-5; Doc. 56-1 at 2-4. The Lexus was registered to Diggs's wife, Devinn Adams. Doc. 49 at 1; Doc. 50-1 at 5. Adams bought the car on credit from Headers Car Care in July 2016. Doc. 55-1 at 2. Her contract with Headers includes this provision: "If your vehicle has an electronic tracking device, you agree that we may use this device to find the vehicle." Id. at 4. Although Adams owned the Lexus, Diggs "regularly drove" it. Doc. 55 at 4.

On March 29, 2017, Hinsdale detectives issued an alert "on multiple databases" seeking information about the Lexus. Id. at 3. On April 4, 2017, a Headers employee told one of the detectives that the Lexus was equipped with a GPS tracking device serviced by Air Assault Asset Track GPS Systems. Doc. 49-1 at 3-4; Doc. 56-1 at 2-3. The Headers employee gave the detective her login credentials for Air Assault's website and authorized him to access "all the GPS records associated with the Devinn Adams/Lexus RX account." Doc. 56-1 at 3. The GPS records included historical data tracking the Lexus's "movement and global position." Ibid.

Without first obtaining a warrant, the detective downloaded a spreadsheet containing GPS data for the period from March 1, 2017 through April 4, 2017. Ibid. ; Doc. 49-1 at 6, 8, 10. The spreadsheet sets forth time-stamped entries giving the Lexus's approximate street address (usually at the block level, such as "5701-5799 S Campbell Ave, Chicago, IL, 60629") each time it was turned on, approximately every five minutes while it was being driven, and each time it was parked. Doc. 56-1 at 3-4; Doc. 49-1 at 8. According to the detective, "[g]reater detail" beyond those approximate street addresses "c[ould] be extracted from the map points" using "the software program that manages the GPS data," which allowed the detective to "narrow[ ]" each recorded location "to specific latitude and longitude way points." Doc. 56-1 at 3.

The GPS data reflect that the Lexus traveled to Hinsdale on the date of the robbery, March 17, 2017, and on each of the two previous days. Id. at 3. The data also reflect that the Lexus traveled to and from all three defendants' "family residence[s]" from March 15 through March 17. Id. at 4 (capitalization altered). The March 17 data show the Lexus driving from Diggs's address to McClellan's, then to Hamberlin's, then to Hinsdale, and then back to Hamberlin's. Id. at 3-5. The data place the Lexus on the same block as Razny Jewelers at the time of the robbery, and in the alleyway "directly behind" the store during the robbery. Id. at 5. Later on March 17, the Lexus was parked in the garage at Diggs's girlfriend Jessica Christian's mother's home, where it remained until the police seized it on April 4. Id. at 3; Doc. 49-1 at 4.

Discussion

Diggs argues that the Hinsdale police's warrantless acquisition of the Lexus's long-term historical GPS data was an unreasonable search in violation of the Fourth Amendment as interpreted by United States v. Jones , 565 U.S. 400, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), and Carpenter v. United States , ––– U.S. ––––, 138 S. Ct. 2206, 201 L.Ed.2d 507 (2018). Doc. 49 at 1-4; Doc. 56 at 4-10. The government responds that acquiring the data was not a Fourth Amendment search because: (1) unlike in Jones , the police made no physical intrusion on the Lexus, Doc. 55 at 10-12; and (2) under the third-party doctrine, Diggs lacked a reasonable expectation of privacy in the data because he voluntarily provided it to the third party (Headers) from which the police obtained it, id. at 5-10. The government submits in the alternative that even if the Hinsdale police violated the Fourth Amendment, the good-faith exception to the exclusionary rule applies because the police adhered to binding appellate precedent in obtaining the data. Doc. 62 at 1-5.

I. Whether Law Enforcement's Acquisition of the GPS Data Violated the Fourth Amendment

The Fourth Amendment prohibits "unreasonable searches." U.S. Const. amend. IV. To determine whether that prohibition has been violated, the court must "ask[ ] two questions: first, has there been a search ..., and second, 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"). The parties dispute only the first question.

"The Supreme Court uses two analytical approaches to decide whether a search has occurred. One is the property-based or trespass approach. The other is based on expectations of privacy." Correa , 908 F.3d at 217 (citations omitted); see also United States v. Thompson , 811 F.3d 944, 948 (7th Cir. 2016) ("A search occurs either when the government physically intrudes without consent upon a constitutionally protected area in order to obtain information or when an expectation of privacy that society is prepared to consider reasonable is infringed.") (citation and internal quotation marks omitted). "The two approaches work together" in that " ‘property concepts’ are instructive in ‘determining the presence or absence of [protected] privacy interests.’ " Correa , 908 F.3d at 217 (quoting Byrd v. United States , ––– U.S. ––––, 138 S. Ct. 1518, 1526, 200 L.Ed.2d 805 (2018) ). Diggs invokes only the privacy-based approach, arguing that he had a reasonable expectation of privacy in his movements, as chronicled by a month's worth of GPS data tracking the vehicle he was driving. Doc. 49 at 3-4; Doc. 56 at 4-5. Under the principles set forth in Jones and Carpenter , Diggs is correct.

In Jones , the government attached a GPS tracking device to a target's vehicle and used it to monitor the vehicle's movements over a 28-day period. 565 U.S. 400, 403-04, 132 S.Ct. 945. The Supreme Court unanimously held that a search occurred, but split evenly as to why. The five-Justice majority held that the government conducted a search by "physically occup[ying] private property for the purpose of obtaining information." Id. at 404-05, 132 S.Ct. 945. In a concurrence joined by three other Justices, Justice Alito rejected the majority's "trespass-based theory," concluding instead that "the use of longer term GPS monitoring in investigations of most offenses" is a search because it "impinges on expectations of privacy" to a "degree ... that a reasonable person would not have anticipated." Id. at 419-21, 424, 430, 132 S.Ct. 945 (Alito, J., concurring in the judgment). Justice Sotomayor adopted both theories, joining the majority in holding that "[w]hen the Government physically invades personal property to gather information, a search occurs," while agreeing with Justice Alito that long-term GPS monitoring implicates privacy concerns by "enabl[ing] the Government to ascertain, more or less at will, [individuals'] political and religious beliefs, sexual habits, and so on." Id. at 414-16, 132 S.Ct. 945 (Sotomayor, J., concurring). Thus, as the Court recognized in Carpenter , although Jones was formally resolved under the property-based approach, "[a] majority of [the] Court [in Jones ] ... recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements." Carpenter , 138 S. Ct. at 2217 ; see also United States v. Caira , 833 F.3d 803, 808 (7th Cir. 2016) ("Traditionally, a person had no reasonable expectation of privacy in his movements on public streets, so it would not be a ‘search’ if officers watched him. But two concurring opinions [in Jones ], signed by five Justices total, expressed the view that technology has changed the constitutional calculus by dramatically increasing the amount and precision of data that the government can easily collect.") (citation omitted).

The GPS data at issue here fits squarely within the scope of the reasonable expectation of privacy identified by the Jones concurrences and reaffirmed in Carpenter. The GPS data provide "a precise, comprehensive record of [Diggs's] public movements" over the course of a month. Jones , 565 U.S. at 415, 132 S.Ct. 945 (Sotomayor, J., concurring); see also id. at 430, 132 S.Ct. 945 (Alito, J., concurring in the judgment) ("We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was...