United States v. Hunt
| Decision Date | 24 September 2021 |
| Docket Number | 20-cr-10119-DJC |
| Parties | UNITED STATES OF AMERICA v. TIMMY HUNT, Defendant. |
| Court | U.S. District Court — District of Massachusetts |
Defendant Timmy Hunt (“Hunt”) has moved to suppress the GPS data obtained from a GPS electronic monitoring device imposed as a condition of his pretrial release in a pending state case in Suffolk Superior Court. D. 84. Having considered the motion (and supporting memorandum and exhibits), D. 84-87 the government's opposition, D. 105-06, Hunt's reply D. 109, and having heard oral argument on the motion, D. 111, the Court DENIES the motion.
These findings are based upon the record before the Court including the affidavits of Hunt, D. 87, and Special Agent Timothy R. Kenny (“Kenny”), D. 106; D. 1-1, 20-mj-01119-DLC.
On March 14, 2019, Hunt was arraigned in Suffolk Superior Court and charged with carrying a firearm without a license. D. 87 ¶ 1; D. 86-1 at 4. At his arraignment, the Commonwealth requested a cash bail amount of $40, 000 and Hunt's counsel requested $10, 000 based upon Hunt's ability to pay. D. 105 at 6. Hunt's counsel asserted that Hunt had “no problem” with being put “on a GPS as well as some kind of monitoring.” Id. at 7. The Superior Court set cash bail at $15, 000 and ordered GPS monitoring and home confinement when bail was posted. Id.; D. 109 at 2.
Hunt remained in custody until July 1, 2019 when he posted the $15, 000 bail. D. 87 ¶¶ 1, 2. Hunt met with a Probation employee, outside of court and without counsel present, who told him he would be released on house arrest with a GPS monitoring bracelet. Id. The Probation employee gave Hunt an Order of Pretrial Conditions of Release (“Order”) form to sign. Id. ¶¶ 23; D. 87-1 at 2. The form, in relevant part, noted that home confinement was one of the conditions of his release and that he was to comply with electronic monitoring and “obey all local, state, and federal laws and court orders.” D. 87-1 at 2. Hunt signed the Order below the statement that he “read and understood these conditions.” Id. The second page of the Order outlined Hunt's conditions of GPS supervision, which required that he not tamper, interfere or otherwise damage or destroy the GPS device and keep it charged at all times. Id. at 3. The Order also informed Hunt, in relevant part, that:
You are hereby placed on GPS by this Court. Unless you are excused by your probation officer, you must appear in court on the GPS supervision end date indicated, at which time a report of your GPS progress will be made. If you fail to appear on that date or any other date required, a warrant may be issued for your arrest. Coordinates and other data related to your physical location while on GPS are recorded and may be shared with the court, probation, parole, attorneys and law enforcement. Data generated by GPS equipment assigned to you is not private and confidential.
Id. Hunt also signed the second page, affirming that he “read and understood] the above conditions of GPS supervision and I agree to observe them.” Id.
Hunt's conditions of release were later addressed in at least two hearings. First, on August 20, 2019, Hunt appeared, apparently without counsel, to request a modification to his curfew to facilitate his work schedule. D. 105 at 7-8; D. 86-1 at 7. Hunt stated that “being on a bracelet is not an issue.” D. 105 at 7-8. At an October 4, 2019 hearing, Hunt appeared with counsel to request further modification to his curfew so that he could work certain overnight shifts. D. 105 at 8; D. 86-1 at 9; D. 87 ¶ 4. Hunt's counsel relied upon the fact that Hunt was traceable by GPS to support modification of the curfew, stating that “[a]nybody that wants to know where he is, look at his GPS points.” Id. On both occasions, the Superior Court modified Hunt's curfew to accommodate his employment schedule. Id.
The FBI had been investigating alleged drug trafficking by Hunt and Trevel Brewster (“Brewster”) since approximately February 2020. D. 1-1, 20-mj-01119-DLC, ¶ 9. A confidential witness (“CW”) working with the FBI identified Brewster as dealing cocaine base. Id. ¶ 11. Further investigation suggested that Hunt was Brewster's supplier. Id. ¶ 16. The FBI arranged controlled purchases between the CW and Brewster on or about February 26, 2020, and March 2, 2020. Id. ¶¶ 18-19, 27-28. On both occasions, agents observed Brewster enter the CW's vehicle to collect money from the CW, exit the CW's vehicle, enter a white sedan, and then return to the CW's vehicle with a plastic bag containing suspected crack cocaine. Id. ¶¶ 21-22, 30-34. The bags' contents tested positive for cocaine base. Id. ¶¶ 24, 36. Agents also identified the white sedan observed at the controlled transactions as a Chevrolet Malibu rented by Hunt from Avis Budget Group on February 26, 2020 and returned on March 21, 2020. Id. ¶ 33; D. 106 ¶ 3.
Kenny learned that Hunt was on pretrial release related to his pending criminal matter in Superior Court, which included GPS monitoring as a condition of release. D. 106 ¶ 7. On May 8, 2020, Kenny contacted the Massachusetts Probation Service to request GPS monitoring points for Hunt on February 26, 2020 between 3:00 p.m. and 4:30 p.m., and on March 2, 2020 between 4:00 p.m. and 5:30 p.m. Id. ¶ 8. On May 9, 2020, Kenny received two maps responsive to that request. Id. Later that day, Kenny requested GPS monitoring points for Hunt on the same days as the initial request, but for more specific time windows: February 26 from 3:40 p.m. to 4:00 p.m. and March 2 from 4:40 p.m. to 5:00 pm. Id. ¶ 9. Kenny did not obtain a warrant to access Hunt's historical GPS data. See id.; D. 85 at 11. The government asserts that the GPS data places Hunt at or near the location of the CW's controlled buys with Brewster. D. 85 at 2, 6.
A federal grand jury indicted Hunt and Brewster on June 23, 2020 with two counts of distribution and possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), and one count of conspiracy for same, 21 U.S.C. §§ 846. D. 1.
The Fourth Amendment protects an individual's right to be free from an unreasonable search or seizure and a “search” need not be a physical intrusion, but may be a violation of a person's reasonable of privacy, Smith v. Maryland, 442 U.S. 735, 739-40 (1979), as Hunt alleges here in GPS location monitoring and the historical data regarding same. D. 85 at 6-7. A person has a reasonable expectation of privacy when he has a subjective expectation of privacy and that expectation is one that “society is prepared to recognize as reasonable.” Smith, 442 U.S. at 740; see United States v. Rheault, 561 F.3d 55, 59 (1st Cir. 2009). A defendant bears the burden of establishing a reasonable expectation of privacy regarding the items searched or seized. United States v. Lipscom, 539 F.3d 32, 35-36 (1st Cir. 2008).
Neither the gathering nor the use of the GPS location data constitutes a search since Hunt had no reasonable expectation of privacy in either. To the extent that Hunt contends that the attachment of the GPS device as part of his pretrial conditions was a search, he has shown no reasonable expectation of privacy as to same and no case law supporting this contention. Such monitoring is routinely a part of pretrial release in state court (as it was in this case) and in federal court. See 18 U.S.C. 3142(c)(1)(B)(xiv). Also, as discussed more fully below, Hunt also consented to same as part of his pretrial release and implicitly affirmed that assent in his motions to alter the conditions of his release to accommodate his work schedule.
As to the gathering and use of the historical data, Hunt also has not shown a reasonable expectation of privacy. Although Hunt expresses some subjective expectation of privacy in same, see D. 87 ¶ 3, the Court does not conclude that such expectation is one that can be recognized as reasonable, particularly on this record where Hunt consented to the GPS monitoring and even to the possibility that GPS data could be shared with law enforcement. D. 105 at 16-17, D. 87-1 at 3. The case law upon which Hunt relies does not compel a different outcome. Hunt points primarily to Carpenter v. United States, U.S., 138 S.Ct. 2206 (2018). In Carpenter, the Supreme Court ruled that the seizure of cell site location information in that case constituted a seizure, but it make clear that its holding was limited to the greater scope of data seized there, noting that “[i]t is sufficient for our purposes today to hold that accessing seven days of [cell site location information] constitutes a Fourth Amendment search.” Id. at 2217 n.3. The court expressly did not reach “whether there is a limited period for which the [g]overnment may obtain an individual's historical [cell site location information] free from Fourth Amendment scrutiny, ” id., which is the situation presented here. That is, the holding in Carpenter addressed to seven days of cell site location information does not mean that the seizure of a far more limited scope of location date (1.5 hours of GPS data for each of two days) constituted a search.
Accordingly, as an initial matter, the Court concludes that the imposition of the GPS monitoring as part of Hunt's pretrial release and the gathering and limited use of location data here does not constitute a search under the Fourth Amendment.
Even assuming arguendo, that the GPS...
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