United States v. Lee

• Citation: 862 F.Supp.2d 560
• Decision Date: 22 May 2012
• Docket Number: Criminal No. 11–65–ART.
• Parties: UNITED STATES of America, Plaintiff, v. Robert Dale LEE, Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

862 F.Supp.2d 560

UNITED STATES of America, Plaintiff,

v.Robert Dale LEE, Defendant.

Criminal No. 11–65–ART.

United States District Court,

E.D. Kentucky,

Southern Division,

London.

May 22, 2012.

Jason D. Parman, U.S. Attorney's Office, London, KY, for Plaintiff.

Robert Michael Murphy, Law Office of R. Michael Murphy, PLLC, Lexington, KY, for Defendant.

MEMORANDUM OPINION & ORDER

AMUL R. THAPAR, District Judge.

Magistrate Judge Hanly A. Ingram has recommended that the Court grant Defendant Robert Dale Lee's motion to suppress because Drug Enforcement Agency (DEA) special agents illegally placed a GPS tracking device on his car. R. 33. The United States objects to that recommendation, arguing that Lee's arrest was too attenuated from the illegal search to justify suppression. R. 34. The United States also argues that the good-faith exception applies. Id. Because Lee's arrest stemmed directly from the illegal GPS search, and the DEA agents did not rely on binding appellate precedent, the Court will adopt Judge Ingram' recommendation and grant the motion to suppress.

BACKGROUND

Judge Ingram's recommended disposition provides a detailed recitation of the facts, seeR. 33 at 2–5, so the Court will only give a summary here.

Like many criminal investigations, this case started with a tip. A criminal defendant in another federal case wanted a reduced sentence for his drug trafficking charges, so he decided to cooperate with DEA agents. In December 2010, the cooperating defendant told the DEA that he had purchased marijuana from Lee in the past. Lee was no stranger to federal law enforcement. In 2006, he was convicted of marijuana distribution and firearms possession and sentenced to 42 months in prison. See United States v. Robert Dale Lee, London Criminal No. 05–39(1)–KKC (E.D.Ky. Mar. 6, 2006), R. 22. The cooperating defendant also told the DEA agents that Lee obtained marijuana in Chicago and transported it back to eastern Kentucky in his car.

On September 2, 2011, Lee reported to the U.S. Probation Office in London, Kentucky, for the last day of his supervised release. But the end of Lee's supervision did not end law enforcement's interest in him. While Lee met with his probation officer, DEA Task Force Officer Brian Metzger secretly installed a Global Positioning System (GPS) tracking device on Lee's car. The tracking device, which had not been authorized by a judge, transmitted the location of Lee's vehicle to DEA agents in real time.

Three days after installing the tracking device, DEA agents noticed that Lee had driven to Chicago. On September 6, 2011, the agents saw Lee's vehicle moving south, back towards Kentucky. Suspecting that Lee had reverted to his old ways, Task Force Officer Metzger contacted Kentucky State Police Trooper Matt Hutti. He gave Hutti a description of Lee's car, told him that it “probably” contained marijuana, and told him that he “would have to obtain his own PC, probable cause, for a traffic stop.” R. 33 at 3–4. When Lee reached Lexington, DEA agents began following his car and updated Hutti on his position. In the meantime, Hutti stationed himself along Interstate 75 in Mount Vernon with a canine unit to intercept Lee.

Hutti observed that Lee was not wearing a seatbelt as he drove past. He pulled Lee over and approached the car. Hutti noticed that Lee's hand was shaking uncontrollably, so he requested that Lee step out of the car and asked if Lee had any illegal contraband inside. Lee admitted to having two marijuana cigarettes and gave Hutti consent to search the car. By this point, another Kentucky State Police trooper, Jason McCowan, had arrived. Both Hutti and McCowan used their police dogs to search the exterior of the car for narcotics, and both dogs alerted to the presence of contraband. Hutti and McCowan then searched the interior of the car and found approximately 150 pounds of marijuana. Upon finding the drugs, the troopers arrested Lee.

Lee filed a motion to suppress the evidence and the statements he made after his arrest. R. 13. Magistrate Judge Ingram held a hearing on this motion on November 7, 2011, see R. 16; R. 18, and asked the parties to provide supplemental briefing following the Supreme Court's decision in United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012); see R. 28. Judge Ingram recommended granting the motion to suppress. R. 33. The United States objected to that recommendation. R. 34.

DISCUSSION

I. Timeliness

As a first matter, Lee argues that the United States failed to make a timely objection to Judge Ingram's recommendation. R. 35. Judge Ingram issued his recommendation on March 22, 2012, 2012 WL 1880636, and informed the parties that they could object “within fourteen days after being served with a copy of this recommended decision” R. 33 at 27;see28 U.S.C. § 636(b)(1) (giving parties fourteen days to object to a magistrate judge's recommendations); Fed.R.Crim.P. 59(b)(2) (same). The United States filed its objections fifteen days later, on April 6, 2012. At first blush, the United States appears to be one day too late, and such tardiness would waive its right to object. See United States v. Campbell, 261 F.3d 628, 631–32 (6th Cir.2001).

That logic, however, assumes that the United States was served on the same day that Judge Ingram issued his recommendation. Owing to a quirk of the Federal Rules, it was not. Under Federal Rule of Criminal Procedure 45(c), “[w]henever a party must act or may act within a specified period after service,” and that service is accomplished by one of the means outlined in Federal Rule of Civil Procedure 5(b)(2)(C), (D), (E), or (F), “3 days are added after the period would otherwise expire.” This three-day extension is sensible for some forms of service. Federal Rule of Civil Procedure 5(b)(2)(C), for example, allows service by mail to a person's last-known address, and the next subsection, Rule 5(b)(2)(D), permits service by leaving a document with the Clerk of the Court if the person has no known address. In these situations, a few additional days may pass before the person receives the documents: mail can be slow, and not everyone can make an immediate trip to the Clerk' Office.

But Criminal Rule 45(c) also grants an additional three days for service accomplished by sending a document “by electronic means,” including the “court's transmission facilities” if the local rules allow it. SeeFed.R.Civ.P. 5(b)(2)(E); id. 5(b)(3). In the Eastern District of Kentucky, Local Criminal Rule 49.4 allows service through the court's Electronic Case Filing (“ECF”) system, and Joint General Order Number 11–02 requires it. Electronic filing has many virtues, and speed is among them. As the Administrative Office of the Courts has pointed out, ECF “greatly speeds delivery” of documents because parties receive e-mail notices of all new filings. Frequently Asked Questions, PACER, http:// www. pacer. gov/ psc/ efaq. html # CMECF (follow “What are the benefits and features of using CM/ECF?” hyperlink), (last visited May 21, 2012). Nevertheless, under the Federal and Local Rules, parties are entitled to three extra days to act on documents they receive instantly. SeeFed.R.Civ.P. 5(b)(2)(E); E.D. Ky. Joint General Order No. 11–02 ¶ 12.3 (“[S]ervice by electronic means is treated the same as service by mail for purposes of adding three (3) days to the prescribed period to respond.”). Fourteen days from Judge Ingram' recommendation was April 5, and an additional three days extended the deadline for objections to April 8. Because that day was a Sunday, the United States had the right to object until Monday, April 9, 2012. SeeFed.R.Crim.P. 45(a)(1)(C). Its objections were therefore timely.

II. Objections to the Recommended Disposition

The United States raises two objections to Judge Ingram's recommendation. It argues that the traffic stop was sufficiently attenuated from the illegal GPS search to expunge the taint of the illegal search, and even if it was not, that the officers acted in good faith. The Court reviews these objections de novo. See28 U.S.C. § 636(b)(1).

A. Attenuation

Both Lee and the United States agree that, in light of Jones, the DEA agents performed an illegal search when they installed a GPS device on Lee's car. R. 33 at 6. That agreement does not, however, settle the matter because “[w]hether the exclusionary sanction is appropriately imposed in a particular case ... is an issue separate from the question [of] whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.' ” United States v. Leon, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). Under some circumstances, the causal connection between an illegal search and the incriminating evidence is “so attenuated as to dissipate the taint” of illegality, and the evidence should not be excluded. Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939) (Frankfurter, J.). In other cases, there is a direct causal connection between the search and the evidence, but “the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence.” Hudson v. Michigan, 547 U.S. 586, 593, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (citing New York v. Harris, 495 U.S. 14, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990)). To put it simply, “exclusion may not be premised on the mere fact that a constitutional violation was a but-for' cause of obtaining evidence,” because “but-for causality is only a necessary, not a sufficient, condition for suppression.” Id. at 592, 126 S.Ct. 2159.

In this case, the parties disagree on whether the illegally placed GPS device was sufficiently connected to the evidence that Troopers Hutti and McCowan found during their stop of Lee's car. A three-factor test determines whether the connection between an illegal search and...