The odds that the full Fourth Circuit will review the good faith of pre-2012 warrantless GPS tracking

By Jonathan Biran

In United States v. Stephens, a divided panel of the Fourth Circuit affirmed a holding of the U.S. District Court for the District of Maryland that the good-faith exception to the exclusionary rule applied to police officers’ concededly unconstitutional warrantless use of a GPS device to track a suspect and obtain evidence in furtherance of his prosecution. Judge Dennis Shedd, an appointee of President George W. Bush, wrote the majority opinion, joined by Senior Judge Clyde Hamilton, an appointee of President George H.W. Bush. An appointee of President Obama, Judge Stephanie Thacker, wrote a dissenting opinion.

A petition for rehearing en banc almost certainly will be filed by the defendant. The question then will become whether the six Obama appointees who are active judges on the Court — and at least two other judges appointed by prior presidents — will choose this Fourth Amendment good-faith case as one to plant their flag in en banc. As I explain below, I doubt that this case will result in a very rare grant of rehearing en banc.

The facts in Stephens’ case are straightforward and undisputed. In 2011, federal and local law enforcement officials on a Baltimore High Intensity Drug Trafficking Area (HIDTA) task force were investigating Stephens for drug and firearms offenses. On May 13 of that year, a Baltimore City police officer who was part of the HIDTA unit, acting without a warrant and without first consulting an Assistant U.S. Attorney, installed a GPS device under the rear bumper of Stephens’ vehicle, which was parked in a public lot in Parkville, Maryland. Officers then used data gleaned from the GPS to locate, follow, and ultimately detain Stephens outside his car. A subsequent search of the car resulted in the seizure of a firearm, and Stephens (a convicted felon) was initially charged under Maryland law. Federal authorities eventually adopted the prosecution, and a federal grand jury indicted Stephens for being a felon in possession of a firearm.

While the case was pending in federal district court, the U.S. Supreme Court held in United States v. Jones, 132 S. Ct. 945, 949 (2012), that law enforcement’s installation of a GPS device on a target’s vehicle and the use of that device to monitor the vehicle’s movements constitutes a search within the meaning of the Fourth Amendment. Because the officers in Jones did not have a valid warrant authorizing the GPS usage, that search violated the Fourth Amendment.

Based on Jones, Stephens moved to suppress the firearm and other evidence seized in his case. Following a hearing, U.S. District Judge James K. Bredar concluded (and the government conceded) that, in light of Jones, the warrantless use of the GPS on Stephens’ vehicle was an unconstitutional search. However, Judge Bredar nonetheless denied the motion, holding that the exclusionary rule did not apply because the officers used the GPS in good faith. Stephens subsequently entered a conditional guilty plea, reserving the right to appeal the denial of his suppression motion.

The exclusionary rule is applicable when the police exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights, and the deterrent value of exclusion is strong and tends to outweigh the resulting costs to truth-finding and crime detection and prevention. However, when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrence rationale loses much of its force and exclusion is not warranted. Accordingly, the Supreme Court in Davis v. United States, 131 S. Ct. 2419 (2011), expanded on its good-faith-exception jurisprudence in holding that “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at 2423-24. In a concurring opinion, however, Justice Sotomayor suggested that the outcome of the case might have been different if the governing law at the time of the constitutional violation at issue in Davis had not unequivocally authorized the challenged police action. Id. at 2435 (Sotomayor, J., concurring) (“This case does not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled.”).

Based on Davis’ reference to “binding appellate precedent,” Stephens argued that because there was no case prior to Jones in which the Supreme Court or the Fourth Circuit had affirmatively held that the warrantless use of a GPS device similar to what occurred in his case was constitutionally permissible, the good-faith exception was inapplicable.

The appeal was argued before the Fourth Circuit panel on October 30, 2013. Almost 10 months later, on August 19, 2014, the Court issued its decision upholding Judge Bredar’s denial of the suppression motion. Judge Shedd’s majority opinion noted that, in May 2011, at the time of Stephens’ arrest and before Jones was decided, it was not uncommon for law enforcement officers in Maryland to attach tracking devices to vehicles without a warrant. Although neither the Supreme Court nor the Fourth Circuit had expressly approved or disapproved of warrantless GPS usage in 2011, the Supreme Court in United States v. Knotts, 460 U.S. 276 (1983), had rejected a Fourth Amendment challenge to law enforcement officers’ tracking of a defendant’s car with a beeper, which Judge Shedd characterized as “the technological forerunner to the GPS.” Slip Op. at 9. According to the panel majority, prior to Jones, Knotts was widely and reasonably understood to stand for the proposition that the Fourth Amendment was not implicated by electronic surveillance of public automotive movements. Indeed, based on Knotts, several federal appellate courts — but not the Fourth Circuit — had held prior to 2011 that the warrantless use of a GPS device to track the location of a vehicle did not necessarily violate the Fourth Amendment.

Although the majority expressed “serious doubts about Stephens’ narrow view of the good-faith inquiry,” Slip Op. at 21, it ducked the question Justice Sotomayor flagged in her Davis concurrence, i.e., whether an officer’s reliance on non-binding appellate precedent can be objectively reasonable for purposes of the good-faith exception. Instead, the majority characterized Knotts as binding precedent that the officers reasonably could have relied on at the time they used the GPS device without first obtaining a warrant. Although the majority acknowledged that Knotts was “not exactly on point with the facts of this case,” the majority explained that “it is the legal principle of Knotts, rather than the precise factual circumstances, that matters.” Slip Op. at 23. Without the benefit of hindsight, and with no contrary guidance from the Supreme Court or the Fourth Circuit, the majority concluded that a reasonably well-trained officer could have relied on Knotts as permitting the warrantless GPS usage that was undertaken in Stephens’ case. Slip Op. at 24.

In addition, as Judge Shedd noted, the Court of Special Appeals of Maryland held in 2008 that warrantless GPS usage was permissible under the Fourth Amendment. Stone v. State, 178 Md. App. 428, 941 A.2d 1238 (2008). As the Maryland Court of Appeals explained in Kelly v. State, 436, Md. 406, 82 A.3d 205, 216 (2013), “before Jones, binding appellate precedent in Maryland, namely Knotts, authorized the GPS tracking of a vehicle on public roads” such that, at that time, the Court would have applied Knotts as the Court of Special Appeals had done in Stone “to resolve the question of the constitutionality of GPS tracking of a vehicle on public roads.” Id. Judge Shedd found compelling the holding in Kelly that “just as the Court of Special Appeals applied Knotts, pre-Jones, when considering the relevance of testimony on the subject of GPS tracking of a vehicle on public streets in Stone, so too could police officers reasonably rely on Knotts, pre-Jones, in affixing a GPS tracking device to the vehicle of a person under their investigation for the purpose of conducting surveillance.”  Slip Op. at 15 (quoting Kelly, 82 A.3d at 216).

According to the majority, Stone was therefore binding precedent under Maryland law that the HIDTA officers also could have relied on for purposes of the good-faith-exception analysis. The Maryland law enforcement officers assigned to HIDTA were investigating both federal and state crimes, and their investigation led to Stephens’ arrest (initially) for violating Maryland law. Under these circumstances, according to the majority, “we would make a mockery of the good-faith inquiry if we were to ignore the clear pre-Jones state of the law in Maryland – as pronounced by Maryland’s highest court [in Kelly] – and hold that a Maryland officer’s use of the GPS was objectively unreasonable. The fact that Stephens was later charged federally does not alter our determination.” Slip Op. at 25.

In her dissenting opinion, Judge Thacker disagreed with the majority’s conclusion that Knotts was on-point and therefore binding precedent that specifically authorized the officers’ warrantless use of the GPS device. Among other things, Judge Thacker distinguished Knotts on the basis that, in that case, the beeper was placed in a container with the consent of the owner of the container, and the suspect later placed the container in his car. To Judge Thacker, this is a sufficiently different scenario from officers’ covert placement of a GPS unit on the underside of a suspect’s car to render Knotts non-binding. Judge Thacker also relied on the difference between beepers and GPS devices: “The two are of an entirely different character. A beeper tracking device requires law enforcement to at least be in proximity to the device to receive the transmitted signal, whereas a GPS device downloads location data at specific time intervals with no proximity needed.” Slip Op. at 35 n.4.

In addition, it was important to Judge Thacker that the state of the law regarding warrantless GPS usage was in “flux” when the HIDTA officers acted. See, e.g., Slip Op. at 41. At the relevant time, Jones (sub nomine United States v. Maynard) had been decided adversely to the government in the D.C. Circuit, and the Supreme Court had already granted certiorari in that case. Given this state of flux, it was unreasonable (according to Judge Thacker) for the officers not to consult with the U.S. Attorney’s Office about whether they needed to apply for a warrant.

Given the single issue to be resolved and the undisputed facts, it’s surprising that the case took almost 10 months to decide. One wonders whether Judge Shedd or Senior Judge Hamilton initially was inclined to hold that reliance on non-binding (but generally accepted) appellate precedent can satisfy the good-faith exception and the other judge in the majority balked, leading to the fallback position that Knotts was sufficiently on-point to qualify as “binding” precedent. Whatever the reason for the lengthy interval between argument and decision, the majority’s efforts to make this case fit neatly under Davis may render the majority opinion en banc-proof.

Even if seven of the Fourth Circuit’s other active judges find Judge Thacker’s argument that Knotts is non-binding more persuasive than Judge Shedd’s contrary position, it seems unlikely to me that those judges will find this dispute to be worthy of en banc review. In order to benefit from this ruling, the government in a subsequent case will still need to be able to make the argument that a now-incorrect precedent was “binding” at the time officers relied on it. In addition, Judge Shedd’s invocation of Maryland case-law might help some of the other judges come to the conclusion that en banc review is unwarranted – perhaps especially Judge Motz, who, as a former judge on the Court of Special Appeals, may find that portion of the majority opinion particularly compelling. Moreover, while she is generally considered one of the more liberal members of the Court, Judge Motz has shown in the past that she is willing to take a strong pro-government position when it comes to the good-faith exception. See United States v. McKenzie-Gude, 671 F.3d 452 (4th Cir. 2011).

Even if Judge Motz does vote for en banc review, some of the other liberal or moderate judges may be favorably disposed to the government’s good-faith-exception argument in this case. See, e.g., United States v. Williams, 548 F.3d 311 (4th Cir. 2008) (opinion written by Judge King overturning suppression ruling on good-faith grounds); United States v. Moore, 477 F. App’x 102 (4th Cir. 2012) (unpublished) (opinion written by Judge Keenan overturning suppression ruling on good-faith grounds; Judge Gregory wrote a dissenting opinion). [Note: I represented the government on appeal in Moore.] In short, I don’t think that the votes will be there for en banc review. If there’s a poll, I predict that it will be in the neighborhood of 10-to-5 to deny the petition.

One last point: Although Judge Thacker worked as a federal prosecutor for 12 years, she has relatively quickly established herself as one of the judges on the Fourth Circuit who the government will not want to see on a panel in a difficult Fourth Amendment case. In addition to Stephens, see United States v. Yengel, 711 F.3d 392 (4th Cir. 2013) (affirming suppression of evidence; opinion by Thacker, J.); United States v. Jackson, 728 F.3d 367, 375 (4th Cir. 2013) (affirming denial of suppression motion; Thacker, J., dissenting).

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