Good Faith, The Exclusionary Rule and GPS Tracking

After Abdulfatah Oladosu was indicted on one count of possession of, and one count of conspiracy to possess, one hundred grams or more of heroin with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), 846, and 18 U.S.C. § 2, he filed a motion to suppress certain evidence.  U.S. v. Oladuso, __ F.Supp.2d ___, 2012 WL 3642851 (U.S. District Court for the District of Rhode Island2012). 

More precisely, he moved to suppress “ all evidence obtained by virtue of the warrantless utilization of a Global Position System Tracking Device (`GPS), as fruits of a violation of” his 4^th Amendment rights.  U.S. v. Oladuso, supra.

After Oladosu moved to suppress, the district court judge held a hearing on the matter.  U.S. v. Oladuso, supra.  The only witness who testified at the hearing was Detective Robert DiFilippo of the North Providence Police Department.  U.S. v. Oladuso, supra.  According to this opinion, the facts summarized below came from his testimony.

In October, 2009, DiFilippo was assigned to the Rhode Island State Police High Intensity Drug Trafficking Area (HIDTA) task force when he became involved in an investigation of a Nigerian heroin smuggling organization. U.S. v. Oladuso, supra. Multiple cooperating witnesses connected Oladosu to the organization and provided information regarding where he lived and the vehicle he drove.  U.S. v. Oladuso, supra. 

Beginning in January of 2010, DiFilippo and other members of the task force conducted spot surveillance, installed a pole camera in Oladosu's neighborhood and obtained a pen register on his cell phones.  U.S. v. Oladuso, supra.  On February 12, he installed a GPS device on Oladosu's car while it was parked on Pavilion Street in Providence, across from the mosque he attended. U.S. v. Oladuso, supra. 

DiFilippo put the GPS under the rear bumper, using a magnet. U.S. v. Oladuso, supra.  Since this GPS was an all-in-one device (meaning the GPS and its batteries are contained in one device), DiFilippo did not have to wire the GPS into the car. U.S. v. Oladuso, supra.  DiFilippo installed the GPS on a public roadway because he thought it “`would be better for [him] and the case and the application of the GPS.’” U.S. v. Oladuso, supra. 

DiFilippo did not obtain a warrant to install, or to continue to employ, the GPS on Oladosu's car. U.S. v. Oladuso, supra. DiFilippo testified that he was “`not aware of any rules, regulations or laws that

require us to obtain a search warrant prior to applying this GPS device.” U.S. v. Oladuso, supra. 

He also said he would “`normally get approval from the supervisor’” to install a GPS device and that prior to installing the GPS device in this case, he contacted the U.S. Attorney's Office for approval. U.S. v. Oladuso, supra. DiFilippo was “generally familiar” with the laws and constitutional requirements concerning obtaining warrants based on probable cause. U.S. v. Oladuso, supra.

Approximately two weeks after he installed the GPS, DiFilippo replaced the batteries, “`in the late night hours, in the cover of darkness,’” while the car was parked in the driveway of Oladosu's home. He did this so “to avoid detection.’” U.S. v. Oladuso, supra.  DiFilippo also testified about “the different ways” officers could use the GPS to track an individual's activity.  U.S. v. Oladuso, supra.

Every time the vehicle stops, and remains stopped for a designated amount of time, the location of that stop is registered in what is called a stop report. . . . [E]ven without the vehicle stopping, law enforcement can monitor the vehicle's travel by watching it in real-time. A program that accompanies the GPS provides an animated image of the vehicle on a map.

In live mode, `it's sending signals out consistently, which gives us a true and accurate image of where he's operating.’ When members of the team were not actively viewing it, they would set it to send signals out less frequently. They would use live mode when they were conducting physical surveillance of the vehicle.

U.S. v. Oladuso, supra.

From February 12 to March 30, 2010 (when Oladosu was arrested), “with the exception of the one time the GPS was removed to change the batteries,” it was “continually affixed to Oladosu's vehicle.”  U.S. v. Oladuso, supra. The GPS was transmitting data during this entire time, except between March 2 and March 19 when it went into sleep mode because Oladosu was out of the country. U.S. v. Oladuso, supra.

On March 29, DiFilippo was “reviewing the GPS data in live mode” when he noticed that Oladuso was “driving around on the back streets” in an area he apparently did not frequent.  U.S. v. Oladuso, supra.  DiFilippo followed the car and saw the man (Lorenzo Gadson) who was in the car with Oladuso have a conversation with a letter carrier. U.S. v. Oladuso, supra.

When DiFilippo questioned the carrier, after Oladuso and Gadson left, he said Gadson was checking on an express package at an address where Gadson had previously resided.  U.S. v. Oladuso, supra.  The carrier told DiFilippo that Gadson

continued to receive mail and packages there. This information was significant to DiFilippo because he knew from his investigation that narcotics were being distributed through the mail, and Defendant and Gadson were checking on a package for an address where neither resided. 

U.S. v. Oladuso, supra. 

DiFilippo checked with a Postal Inspector, the package was identified and checked by a K-9 trained in narcotics detection, who alerted on it.  U.S. v. Oladuso, supra. The officers “delivered” it to Gadson, who was again driving around with Oladuso, after which they arrested Oladuso (and, I assume, Gadson).  U.S. v. Oladuso, supra.  When they opened the package, heroin.  U.S. v. Oladuso, supra.

This all happened in 2010.  On January 23, 2012, the Supreme Court decided U.S. v. Jones, 132 S.Ct. 945 (2012), in which it held that law enforcement’s installing GPS devices on citizens’ vehicles is a 4^th Amendment search, which must be justified either by a search warrant or by an exception to the warrant requirement. 

This court had not yet ruled on Oladuso’s motion to suppress, and so asked Oladuso and the government to brief the impact, if any, Jones had on that motion.  U.S. v. Oladuso, supra.  They did so, and the court then ruled on the motion.

The prosecution conceded-- “as it must—that the use of the GPS in this case was a violation of the 4th Amendment warrant requirement as held in Jones.”  U.S. v. Oladuso, supra.  It conceded the violaton, but did not concede that the evidence should be suppressed.  The government’s first argument was that Oladuso’s motion should be denied on the

basis of the good faith doctrine. . . . [T]he government argues that, because the officers acted in objectively reasonable reliance on judicial precedent in obtaining the GPS tracking information, that information, as well as derivative information, should not be excluded as a result of the 4th Amendment violation under the exclusionary rule because the good faith exception . . . applies here.

U.S. v. Oladuso, supra. 

As you probably know, U.S. courts use the exclusionary rule to enforce constitutional rules, such as the 4^th Amendment, that restrict what officers can do in investigating crime.  The premise behind the exclusionary rule is that officers know they cannot use evidence they obtain by intentionally violating the 4^th Amendment or other constitutional provisions, they will not violate those rules.  The Supreme Court has therefore limited the exclusionary rule’s application to cases in which it will “`yield appreciable deterrence’”. Davis v. U.S., 131S. Ct. 2419 (2010) (quoting U.S. v. Janis, 428 U.S. 433 (1976)).

The Court has also held that because the exclusionary rule “costs” the justice system valuable evidence, “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Davis v. U.S., supra. The Davis Court’s holding was based on its finding that suppression would do noting to deter unlawful police conduct if the police did not realize they were violating the law.  

The federal judge who has this case noted, however, that the Davis decision does not apply in cases in which the law governing the constitutionality of a search was “unsettled.”  U.S. v. Oladuso, supra.  He pointed out that cases involving the use of GPS monitoring “before, during and after . . . Jones, raise such questions in spades.”  U.S. v. Oladuso, supra. 

After reviewing the relevant case law at the time DiFilippo installed and used the GPS at issue in this case, the judge found that when he attached the

GPS to Oladosu's car, the Supreme Court had sanctioned the use of beeper technology without a warrant, and two circuits had ruled, in what appeared to be a growing consensus, that the beeper precedent was analogous and applicable to GPS use. Just as in Davis, law enforcement here acted `with an objectively ‘reasonable good-faith belief’ that their conduct [was] lawful.’

U.S. v. Oladuso, supra. 

He also found that

[n]ot only does suppression in these contexts `fail[ ] to yield “appreciable deterrence,”’ Davis v. U.S. supra ((quoting U.S. v. Janis, supra), a prerequisite to application of the exclusionary rule, but . . . by discouraging the lawful use of new investigatory tools, it would only `discourage the officer from ‘do[ing] his duty.’“ Davis v. U.S. supra (quoting U.S. v. Janis, supra), 

`It is one thing for the criminal “to go free because the constable has blundered,”’ (Davis v. U.S. supra (quoting People v. Defore, 150 N.E. 585, 587 (N.Y.1926)), but `quite another to set the criminal free because the constable has scrupulously adhered to governing law’.  Davis v. U.S. supra. 

U.S. v. Oladuso, supra. 

(In People v. Defore, Benjamin Cardozo, who would later become a Supreme Court Justice, found that the exclusionary rule was not a proper way to enforce search and seizure law because, basically, it cost too much.  In Mapp v. Ohio, 367 U.S. 643 (1961), the U.S. Supreme Court finally adopted the exclusionary rule as the device U.S. law employs to enforce the 4^th Amendment, against both state and federal officers.)