Bid to Suppress Warrantless GPS Evidence Fails

, New York Law Journal

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Judge Pooler

The U.S. Drug Enforcement Agency's warrantless placement of a global positioning system device on a suspect's car prior to a change in U.S. Supreme Court precedent falls within the good-faith exception to the Fourth Amendment, the U.S. Court of Appeals for the Second Circuit held on Friday.

Addressing a recent shift in Supreme Court case law on the use of GPS and other tracking devices, the circuit said the use of the device in an investigation into cocaine and heroin distribution in Vermont did not require suppression of the evidence because the agents had a good-faith belief that their actions comported with the Fourth Amendment.

As a result, Judges Dennis Jacobs (See Profile), Rosemary Pooler (See Profile) and Peter Hall (See Profile) refused to set aside guilty verdicts of three men in United States v. Aguiar, 11-5262-cr. Judge Pooler wrote the court's opinion.

DEA agents placed a GPS device on the Suburu Impreza owned by Stephen Aguiar from Jan. 23, 2009, to July 30, 2009, and used the information to identify areas of investigation, support wiretap warrant applications and obtain other evidence.

Aguiar and codefendants Corey Whitcomb and William Murray lost their suppression motion before U.S. District Judge William Sessions of the District of Vermont and the three were convicted on multiple counts.

Following their convictions, the U.S. Supreme Court issued its decision in United States v. Jones, 132 S.Ct. 945 (2012), holding that installation of a GPS device on a target's vehicle is a "search" under the Fourth Amendment. Pooler said Jones changed the landscape and "law enforcement will need to change its approach accordingly."

But Pooler explained that "Jones left open the question of whether the warrantless use of GPS devices would be 'reasonable—and thus lawful—under the Fourth Amendment [where] officers ha[ve] reasonable suspicion, and indeed probable cause' to conduct a search.'"

She said the government's actions in the Aguiar case fell within the good-faith exception to the exclusionary rule outlined by the Supreme Court in Davis v. United States, 131 S.Ct. 2419 (2011).

She said Fourth Amendment case law holds the exclusionary rule is meant to apply in cases where police are acting with deliberate, reckless or gross disregard for Fourth Amendment rights, and that just because a Fourth Amendment violation occurred, exclusion of the evidence doesn't automatically follow.

"The good faith exception in Davis," she said, "provides that 'searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.'"

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