United States v. Lujan

• Decision Date: 10 July 2012
• Docket Number: CRIMINAL ACTION NO.: 2:11CR11-SA
• Parties: UNITED STATES OF AMERICA v. LEONEL LUJAN DEFENDANT
• Court: U.S. District Court — Northern District of Mississippi

UNITED STATES OF AMERICA

v.LEONEL LUJAN DEFENDANT

CRIMINAL ACTION NO.: 2:11CR11-SA

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF MISSISSIPPI

Dated: July 10, 2012

MEMORANDUM OPINION

Defendant Lujan filed a motion to suppress evidence derived from a stop of his vehicle and dismiss the indictment. A hearing was held on January 6, 2012. The Court requested and received supplemental briefing. After such briefing was received, the United States Supreme Court handed down a seminal case on an issue relevant to this suppression motion. The parties submitted additional briefing. A second hearing was held, and the Court reviewed supplemental arguments from the defendant. Accordingly, after reviewing the briefs, hearing transcript, applicable case law and authorities, the Court grants the motion in part and denies the motion in part:

Factual and Procedural Background

Following an extended investigation of alleged narcotic trafficking activity, which included wire tap and pole camera surveillance, DEA Agents placed a GPS tracker on Leonel Lujan's vehicle and monitored his activity for approximately six days. Lujan was subsequently pulled over for a traffic violation in Arkansas, his vehicle was searched, and $83,000 worth of currency was found secreted in a motor trap. Cash in the amount of $2500 was also recovered from a backpack in the vehicle. Lujan's cell phone was seized and the information downloaded at the time of the search.

Lujan was indicted with six others for conspiracy to possess with intent to distribute cocaine hydrochloride. He now seeks to suppress all evidence seized from the warrantless search of his vehicle, including the contents and information found on his cell phone. He also contends that the Government's use of a GPS tracker and consequential surveillance was a violation of the FourthAmendment.

Discussion and Analysis

The Fourth Amendment protects against illegal searches and seizures. U.S. CONST. AMEND. IV. The United States Supreme Court has held that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment - subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (footnote omitted). When a warrantless search or seizure is challenged, the government bears the burden of establishing its validity by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 178 n.14, 94 S. Ct. 988, 39 L. Ed. 2d 242 (1974) (the burden of proof at suppression hearing should be no greater than proof by a preponderance of the evidence).

Lujan asserts that the evidence seized from his vehicle should be suppressed as the placement of a GPS tracker on his vehicle was unconstitutional. He further contends that the Arkansas traffic stop was unjustified at its inception as officers lacked reasonable suspicion to make a traffic stop and had no probable cause to prolong the traffic stop. Further, Defendant contends he had a reasonable expectation of privacy in the recovered cell phone information.

GPS Tracking

The United States Supreme Court recently held that the a governmental "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'" within the meaning of the Fourth Amendment. See United States v. Jones, 565 U.S. —, 132 S. Ct. 945, 181 L. Ed. 2d 911 (Jan. 23, 2012). A second hearing was held on May 29, 2012, regarding the GPS tracking issue specifically.

The Government insists that despite the Supreme Court's ruling that the warrantless placement of a GPS tracker is unconstitutional, the good faith exception to the Fourth Amendment prevents suppression of the evidence found. Citing United States v. Michael, 645 F.2d 252 (5th Cir. 1981), the Government contends that prior to the pronouncement in Jones, the Fifth Circuit recognized that the placement of a beeper without warrant was justified because the officers had reasonable suspicion that the defendant was engaged in criminal activity. This, the Government contends, established an objectively reasonable good faith belief that placing a GPS tracker on Lujan's vehicle on October 31, 2010, was not a search under the Fourth Amendment. Indeed, the Fifth Circuit has more recently provided that the use of a GPS device to track a defendant's movement is not an unconstitutional warrantless search. See United States v. Hernandez, 647 F.3d 216, 220 (5th Cir. 2011). However, that case was handed down after the GPS in question here was placed.

The Government cites to four post-Jones cases involving the applicability of the good faith exception in these circumstances for the Court's consideration.

First, the Government cites United States v. Leon, 2012 U.S. Dist. Lexis 42737, 2012 WL 1081962 (D. Haw. Mar. 28, 2012). There, the district court of Hawaii denied suppression of evidence seized from a vehicle tracked by GPS for four months. Because warrantless placement of the GPS tracker was "specifically authorized by binding Ninth Circuit precedent" at the time of placement, the search was conducted in objectively reasonable reliance on that precedent, and the good faith exception prevented suppression. Id. at *10 (emphasis added) (citing United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)). The court alternatively noted that the officers' conduct in using the tracking device was objectively reasonable as the Ninth Circuit held that prolonged useof a GPS tracking device was constitutional after the placement and tracking was complete. Id. at *14. The district court noted:

This after-the-fact ruling provides further support that the agents acted with an objectively reasonable good-faith belief - - a court would be hard-pressed to place culpability on the agents for their actions in 2009 when, one year later, three judges of the Ninth Circuit relied on Knotts to conclude that the prolonged use of a GPS tracking device did not violate the Fourth Amendment.

Id. at *15 (citing United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) and United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011) (holding that the use of a GPS device to track a vehicle was constitutional)).

The district court of Montana, also in the Ninth Circuit, came to a similar conclusion in United States v. Heath, 2012 U.S. Dist. Lexis 62410, 2012 WL 1574123 (D. Mont. May 3, 2012). In the second case cited the by the Government, the district court refused to suppress evidence discovered as a result of the unlawful use of a GPS tracking device. The court, relying on binding Ninth Circuit precedent, held that the officers' good faith reliance on existing federal law exempted them from the ruling in Jones. See also United States v. Aguilar, 2012 WL 1600276 (D. Idaho May 7, 2012) (same).

The district court in United States v. Amaya, 2012 U.S. Dist. Lexis 50151, 2012 WL 1188456 (N.D. Iowa Apr. 10, 2010), held the exclusionary rule did not apply to evidence discovered as a result of the use of GPS tracking devices. Because both parties recognized that Jones applied retroactively, the court stated that the installation and use of GPS devices to monitor the defendant constituted a search under the Fourth Amendment. The court held

Even assuming that the warrantless use of GPS devices to monitor [the defendant] violated the Fourth Amendment, the evidence collected from the GPS devices is not subject to the exclusionary rule because, pursuant to Davis v. United States, 131 S.Ct. 2419, 180 L. Ed. 2d 285 (2011), the good faith exception applies, as the agents here relied upon binding Eight Circuit precedent authorizing warrantless GPS surveillance.

Id. at *18. In making that determination, the court looked first to see whether binding appellate precedent regarding the use of GPS devises existed at the time of the search at the time, and second, whether the searches were conducted in objectively reasonable reliance on that binding appellate precedent.

The Eighth Circuit held, prior to the searches at issue in Amaya, that "when police have reasonable suspicion that a particular vehicle is transporting drugs, a warrant is not required when, while the vehicle is parked in a public place, a non-invasive GPS tracking device is installed for a reasonable period of time." Id. at *22 (quoting United States v. Marquez, 605 F.3d 604 (8th Cir. 2010)). After finding that the officers complied with each of the four elements of the Marquez precedent, the court found such reliance reasonable. Accordingly the exclusionary rule did not apply pursuant to Davis, 131 S. Ct. at 2423-24.

Here, the Court finds more persuasive United States v. Katzin, 2012 U.S. Dist. Lexis 65677, 2012 WL 1646894 (E.D. Penn. May 9, 2012), as no explicit determination as to the constitutionality of the placement of GPS trackers was made in the Fifth Circuit prior to the incidents here. Katzin involved GPS surveillance of a van driven by one of the defendants which evidenced a pattern relevant to a string of pharmaceutical burglaries. The district court noted that there was no "special need" that would obviate the need for a warrant pursuant to the Supreme Court's guidance in Jones as nothing in the investigation outweighed the intrusion onto the private property of the defendants. Id. at *18. The court discarded the theory of the good faith exception propagated by the Government as the Third Circuit had yet to formulate any caselaw regarding the warrantless installation andmonitoring of a GPS device. Id. at *25. Likewise here, the Fifth Circuit's standing precedent at the time the GPS tracker was placed was that the placement of a beeper, not specifically a GPS tracker, without a warrant was justified where the officers had reasonable suspicion that the defendant was engaged in criminal activity. Michael, 645 F.2d at 257-58. Accordingly, the Court finds that application of the good...