United States v. Fisher

• Decision Date: 09 April 2014
• Docket Number: No. 13–1623.,13–1623.
• Citation: 745 F.3d 200
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brian Scott FISHER, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

745 F.3d 200

UNITED STATES of America, Plaintiff–Appellee,

v.Brian Scott FISHER, Defendant–Appellant.

No. 13–1623.

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 7, 2014.^*

Rehearing En Banc Denied April 9, 2014.

ON BRIEF:Paul A. Peterson, Office of the Federal Public Defender, Negaunee, Michigan, for Appellant. Sally J. Berens, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: GILMAN, COOK, and McKEAGUE, Circuit Judges.

OPINION

McKEAGUE, Circuit Judge.

The question presented on appeal is whether the evidence derived from a warrantless GPS automobile search should be excluded or whether the good-faith exception to the warrant requirement applies. We determine that the police had an objectively reasonable good-faith belief that their conduct was lawful and was sanctioned by then binding appellate precedent, and thus, the exclusionary rule does not apply. We therefore AFFIRM the denial of Fisher's motion to suppress.

I. FACTS

In May of 2010, the Drug Enforcement Agency and members of the Upper Peninsula Substance Enforcement Team received information from a confidential informant that Brian Scott Fisher (“Fisher”) was involved in the sale of cocaine and had suppliers in Lansing, Michigan, and Chicago, Illinois. The informant also revealed that Fisher would drive to Lansing, Michigan, in a white four-door Oldsmobile on May 28, 2010, and would return to Escanaba, Michigan, the following day with a shipment of drugs. On May 28, 2010, police attached a Global Positioning System (“GPS”) unit ¹ to the bumper of Fisher's car. The battery-operated GPS provided the vehicle's location when contacted by a telephone signal so long as the GPS was within range of a cell phone tower. Relying on a combination of GPS monitoring and physical surveillance, the police confirmed that Fisher traveled to Lansing and later returned to Escanaba.

The next month, in early June 2010, the confidential informant again told police about an impending drug run, this time to Chicago, Illinois. The informant described the vehicle that would be used, who would be traveling, and the dates of the trip. The events that unfolded corroborated the informant's tip. Officers observed Fisher leave Escanaba on June 11, 2010. Using ten to twelve vehicles, the police followed Fisher until he arrived in Chicago. The GPS then indicated that Fisher's vehicle stopped at a location in Plainfield, Illinois. This was corroborated by physical surveillance. When Fisher's vehicle left the Chicago area several days later, on June 14, 2010, the GPS informed police that the vehicle had started traveling northbound. While the GPS does have a “live track” feature, which allows the police to track the vehicle in real time, it was used sparingly because of the GPS's limited battery life. Once Fisher entered Michigan, he was stopped. After a trained narcotics dog named “Rambo” alerted to the presence of drugs in the vehicle, police conducted a warrantless search and discovered three ounces of cocaine.

Police arrested Fisher for possession with intent to deliver cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Following his indictment, Fisher moved to suppress the evidence seized from his vehicle, arguing that the warrantless use of the GPS device violated the Fourth Amendment. After holding a hearing, the magistrate judge determined in a written report on January 11, 2011, that the vehicle exception to the warrant requirement applied and that there was probable cause to search the vehicle, referencing the information acquired from the confidential informant, the physical surveillance, and the GPS unit. The district court adopted the magistrate's recommendation and denied the motion to suppress on February 11, 2011. Fisher subsequently entered a guilty plea conditional upon the right to appeal the district court's denial of his motion to suppress evidence, and the district court sentenced him to 33 months of imprisonment.

While Fisher's appeal was pending, the Supreme Court decided United States v. Jones, which held that “the Government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a ‘search.’ ” ––– U.S. ––––, 132 S.Ct. 945, 949, 181 L.Ed.2d 911 (2012). In light of Jones, the parties jointly moved to remand the appeal to the district court. This court granted the motion to remand on April 3, 2012, and vacated Fisher's judgment of conviction. See United States v. Buford, 632 F.3d 264, 269 (6th Cir.2011) (internal quotation marks omitted) (“It is firmly established that a decision of the Supreme Court declaring a new constitutional rule applies to all similar cases pending on direct review.”) On remand, Fisher renewed his motion to suppress, again arguing that the use of the GPS violated the Fourth Amendment and that any evidence resulting from the illegal search should be excluded. Following briefing and a hearing, at which several officers testified that they had received advice from prosecutors and training from the Drug Enforcement Agency and other police agencies indicating that the warrantless use of GPS was permitted, the magistrate recommended that the good-faith exception to the exclusionary rule should be applied. The district court adopted the recommendation and denied the motion to suppress on January 18, 2013. As Fisher did not wish to withdraw his conditional guilty plea, the district court resentenced him to time served. Fisher appeals the denial of his motion to suppress.

II. ANALYSIS

“The grant or denial of a motion to suppress is a mixed question of fact and law. On appeal, we review the district court's findings of fact for clear error and its conclusions of law de novo.” United States v. Ellis, 497 F.3d 606, 611 (6th Cir.2007) (citation omitted).

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” In Jones, the Supreme Court, relyingon common-law trespass doctrine, determined that the use of a GPS to monitor a vehicle constituted a search under the Fourth Amendment.²Jones, 132 S.Ct. at 949. The question presented on appeal is whether the good-faith exception to the exclusionary rule applies where the police rely on then-binding precedent that upholds the constitutionality of a police practice that is later overruled by the Supreme Court. As suppression in such circumstances would neither deter police misconduct nor improve public safety, and consistent with Davis v. United States, ––– U.S. ––––, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011), we find that the good-faith exception applies.

A. The Exclusionary Rule

Evidence that has been obtained in violation of the Fourth Amendment may be subject to exclusion at trial. As the Supreme Court has made clear, however, “[e]xclusion is not a personal constitutional right” but is intended “to deter future Fourth Amendment violations.” Davis, 131 S.Ct. at 2426. Because “[e]xclusion exacts a heavy toll on both the judicial system and society at large,” not all violations of the Fourth Amendment result in the exclusion of evidence. Id. at 2427. “[E]xclusion has always been our last resort, not our first impulse.” Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 700, 172 L.Ed.2d 496 (2009) (internal citation and quotation marks omitted) (emphasis added). To assess whether exclusion is demanded, a “rigorous weighing of [ ] costs and deterrence benefits” is necessary. Davis, 131 S.Ct. at 2427. In particular, because the extent to which the exclusionary rule is justified by these deterrence principles varies with the culpability of the law enforcement conduct, the cost-benefit analysis should focus on the “flagrancy of the police misconduct” and on whether the police misconduct was “deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” Herring, 129 S.Ct. at 701–02. When police act in good faith, however, “conduct[ing] a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.” Davis, 131 S.Ct. at 2434.

B. Officers Acted in Good Faith When They Utilized the GPS Tracker

At the time of the disputed GPS surveillance, the Supreme Court had strongly indicated, and the Sixth Circuit and three other circuits had held, that the warrantless use of electronic tracking devices was permissible. Given this uniform authority, the police conduct here was in good faith.

Before turning to the relevant Sixth Circuit case law, we briefly review the pre-Jones Supreme Court precedent. In United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 1087, 75 L.Ed.2d 55 (1983), the Supreme Court held that the monitoring of an electronic tracking device, such as a “beeper,” that had been installed on a container with the consent of the then-owner, did not constitute a search in violation of the Fourth Amendment. “Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” Id. at 1086. The next year in United States v. Karo, 468 U.S. 705, 104 S.Ct. 3296, 3301–02, 82 L.Ed.2d 530 (1984), the Supreme Court further elaborated, in relevant part, that the installation of a beeper in a container with the consent of the original owner did not violate the Fourth Amendment when the container was later delivered to a buyer who had no knowledge of the presence of the beeper. Importantly, the Court in its analysis discounted the relevance of the physical trespass that occurred when the beeper was installed, indicating that “a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated.” Id. at 3302. Taken together, Knotts and Karo strongly suggested that the warrantless installation and monitoring...