United States v. Rose

• Decision Date: 14 September 2012
• Docket Number: Criminal Case No. 11–10062–NMG.
• Citation: 914 F.Supp.2d 15
• Parties: UNITED STATES, v. Russell C. ROSE, Kelvin Frye, Omay A. Ford, Michael Andrews, Kyle Hicks, Adalberto Graciani, Anthony Vaughn, Stefan Pina, Delrico Graham, Jonathan McGee–Baker, Richard Jackson, Bonnie Bearse, Thomas Gilson, Jeremy Wobecky, and Joel Arias, Defendants.
• Court: U.S. District Court — District of Massachusetts

914 F.Supp.2d 15

UNITED STATES,

v.Russell C. ROSE, Kelvin Frye, Omay A. Ford, Michael Andrews, Kyle Hicks, Adalberto Graciani, Anthony Vaughn, Stefan Pina, Delrico Graham, Jonathan McGee–Baker, Richard Jackson, Bonnie Bearse, Thomas Gilson, Jeremy Wobecky, and Joel Arias, Defendants.

Criminal Case No. 11–10062–NMG.

United States District Court, D. Massachusetts.

Sept. 14, 2012.

David J. D'Addio, James E. Arnold, U.S. Attorney's Office, Boston, MA, for United States.

Rudolph F. Miller, R.F. Miller & Associates, Rosemary C. Scapicchio, Law Office of Rosemary C. Scapicchio, William Keefe, Law Office of William Keefe, Edward J. Lee, Law Office of Edward J. Lee, Charles W. Rankin, Rankin & Sultan, Matthew A. Kamholtz, Daniel Klubock, Matthew H. Feinberg, Feinberg & Kamholtz, John F. Palmer, Law Office of John F. Palmer, P.C., John G. Swomley, Kevin L. Barron, Mark D. Smith, Peter B. Krupp, James P. Duggan, J. Thomas Kerner, Boston, MA, Debra A. Delvecchio, Delvecchio & Houseman, Victoria R. Kelleher, Salem, MA, Inga L. Parsons, Attorney at Law, Marblehead, MA, for Defendants.

MEMORANDUM & ORDER

GORTON, District Judge.

This case arises out of a joint investigation by federal, state and local law enforcement agencies of a heroin and cocaine trafficking and distribution operation on Cape Cod, Massachusetts. As a result of that investigation, 16 individuals were arrested and charged with conspiracy to possess with intent to distribute 100 grams or more of heroin and 500 grams or more of cocaine, in violation of 21 U.S.C. § 846. Pending before the Court are defendants' motions to suppress.

I. Procedural History

The three-count superseding indictment (“the Indictment”) charges all defendants with the original conspiracy and separately charges Joel Arias and Delrico Graham with possession with intent to distribute and distribution of 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1). Defendants Stefan Pina, Delrico Graham, Richard Jackson and Thomas Gilson have pled guilty. Defendant Gregory Slayton died earlier this year.

The remaining defendants have moved to suppress:

1) evidence obtained through the use of GPS tracking devices on the vehicles used by Andrews, Hicks and Ford;

2) evidence obtained through police interrogation of Andrews, including his statements and any physical evidence derived therefrom;

3) electronic and wire interceptions and all evidence derived therefrom; and

4) physical evidence seized at 35 Woodland Parkway in Randolph, Massachusetts, 55 Lake Avenue in East Wareham, Massachusetts and 110 Raspberry Lane in Barnstable, Massachusetts.

In addition to the motions to suppress, defendants have filed a motion to sever, a motion for expedited discovery and separate motions for a Franks hearing. The government has opposed all of defendants' motions.

A five-hour hearing on the motions to suppress was held on Friday, August 10, 2012. The Court heard oral argument on the merits of all of the motions to suppress and presided over an evidentiary hearing to develop the factual record with respect to Andrews' motion to suppress his statements and Hicks's motion to suppress evidence seized at his residence. The Court took the motions under advisement and now renders its decision.

II. Use of GPS Tracking DevicesA. Facts

During the investigation, agents installed global positioning system (“GPS”) tracking devices on the following four vehicles believed to be operated by co-defendants Kelvin Hicks, Michael Andrews and Omay Ford:

1) a Lincoln Navigator bearing MA registration 42TA99, registered to Rachel Huffman and operated by Hicks (2/27/09–3/2/10);

2) a Nissan Stanza bearing MA registration 866GB8, registered to Christine Frye and operated by Andrews (6/4/10–9/9/10);

3) a Honda Accord bearing Massachusetts registration 251DD5, registered to and operated by Andrews (6/4/10–6/20/10); and

3) a Mazda 6 bearing Massachusetts registration 632AB6, registered to Shashauna Raposa and operated by Ford (11/16/10).

The GPS devices were monitored by a computer system that gave agents access to both real time and historical location data. The system also transmitted text messages to the FBI case agent when certain activities occurred, such as when a vehicle that had been stationary for an extended period began to move.

B. Background Law

Until recently, the government's use of technology to track the movements of suspects through public areas was not thought to be a “search” implicating the protectionsof the Fourth Amendment under the theory that suspects have no reasonable expectation of privacy on public roads. See United States v. Knotts, 460 U.S. 276, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983). While that doctrine developed in response to the government's use of electronic monitoring beepers, circuit courts were unanimous, until the fall of 2010, that it applied with equal force to the government's use of GPS tracking devices, the technological successor to beepers. See United States v. Marquez, 605 F.3d 604, 609–10 (8th Cir.2010); United States v. Pineda–Moreno, 591 F.3d 1212, 1216–17 (9th Cir.2010); United States v. Garcia, 474 F.3d 994, 996–98 (7th Cir.2007).

In August 2010, the United States Court of Appeals for the District of Columbia Circuit (“the DC Circuit”) challenged the consensus by ruling that the use of GPS tracking for 28 days qualified as a Fourth Amendment search. United States v. Maynard, 615 F.3d 544, 555–67 (D.C.Cir.2010). According to the Court, the issue was not whether the police could have obtained the same information by lawfully following the defendants on public roads, as the Supreme Court framed the issue in Knotts, but whether such extensive surveillance would be reasonable to expect. Id. at 559. Estimating the probability that a stranger would observe the entirety of one's movements over the course of a month at “essentially nil,” the DC Circuit held that GPS tracking violated the defendant's reasonable expectation of privacy. Id. at 560–67.

Four judges on the DC Circuit criticized the panel decision in Maynard as “inconsistent not only with every other federal circuit which has considered the case, but more importantly, with controlling Supreme Court precedent.” See United States v. Jones, 625 F.3d 766, 769 (D.C.Cir.2010) (Sentelle, J., joined by Henderson, Brown and Kavanaugh, JJ., dissenting from denial of rehearing en banc). Many other courts, including this one, joined in faulting Maynard as contrary to Knotts. See, e.g., United States v. Walker, 771 F.Supp.2d 803, 808 (W.D.Mich.2011) (opining that Maynard flew in the face of the “great weight” of authority); United States v. Sparks, 750 F.Supp.2d 384, 393–96 (D.Mass.2010) (finding Knotts controlling and the Maynard analysis “legally unconvincing” and “practically unappealing”). If a person lacks a reasonable expectation of privacy while traveling on public roads, those courts reasoned, it makes no difference whether police monitor his movements via an electronic monitoring beeper or a GPS tracking device. In light of the resulting circuit split, the Supreme Court granted certiorari. United States v. Jones, ––– U.S. ––––, 131 S.Ct. 3064, 180 L.Ed.2d 885 (2011).

In a decision that came as a surprise to many, the Supreme Court affirmed Maynard and ruled that the government's attachment of a GPS tracking device to a vehicle and its use of that device to monitor that vehicle's movements on public streets is a search. United States v. Jones, ––– U.S. ––––, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012). The majority analyzed GPS tracking under a trespass theory, concluding that a search was effected because the government “physically occupied private property” (the installation) “for the purpose of gathering information” (the monitoring). Id. at 954, 949. Justice Sotomayor joined the majority's trespass theory but wrote separately to express her opinion that GPS tracking qualified as a search under the separate theory that it violated a suspect's reasonable expectation of privacy. Id. at 955–56 (Sotomayor, J., concurring). In a concurring opinion joined by the four remaining justices, Justice Alito criticized the majority opinion's reliance on 18th-century tort law to assess the constitutionality of a 21st-century surveillance technique. Id. at 957 (Alito, J., concurring). In his view, the reasonable expectation of privacy standard was the correct one. Id. at 954. Applying it to the facts, he concluded that installation of a GPS device coupled with long-term monitoring constitutes a search. Id.

For all it decided, the Jones decision left a number of issues unresolved, among them 1) whether the government must obtain a warrant to install and use a GPS tracking device, 2) if not, what quantum of suspicion is required (e.g., probable cause, reasonable suspicion), 3) if the Fourth Amendment is violated, whether the exclusionary rule requires suppression and 4) if so, what evidence must be suppressed. See id. at 954.

C. Analysis

The parties agree that the installation and use of GPS tracking devices, post- Jones, constitutes a “search” under the Fourth Amendment. They disagree as to whether such a search may be conducted without a warrant, whether the government's failure to get a warrant here requires suppression of evidence and, if so, what evidence should be suppressed.

Defendants assert that Jones forbids the warrantless use of GPS tracking and reason that all evidence “derived from” such tracking must be suppressed under the exclusionary rule. They seek suppression of 1) the tracking data itself, 2) surveillance observations made and physical evidence seized during the monitoring period and 3) intercepted conversations obtained through wiretaps which relied in any way on GPS tracking data. The government responds that suppression is not required under the good-faith exception to the exclusionary rule.

Stated generally, the good-faith exception provides that evidence obtained in violation of the Fourth Amendment and ordinarily...