Monday, March 11, 2013

GPS, Probable Cause and the Wiretap Order

After he was charged with “possession with the intent to deliver marijuana, possession of a controlled substance, and criminal conspiracy”,  in violation of Pennsylvania law, Edwin Burgos filed a motion to suppress certain evidence.  Commonwealth v. Burgos, __ A.3d __, 2013 WL 618794 (Superior Court of Pennsylvania 2013). 

In ruling on Burgos’ motion, the trial judge made certain findings of fact, which included the following:

In 2010, Detective Harris . . . was involved in an investigation of cocaine and marijuana trafficking in Berks and Montgomery Counties. The investigation was pursued, in part, through the use of wiretaps. On November 5, 2010, based on information gained, in part, from the wiretaps, Harris and other law enforcement officials executed search warrants. At least two of the searches turned up what the detectives described as high grade marijuana.

Eight individuals were arrested; five became confidential informants for Harris. . . . CS # 1 and CS # 2 [said] the supplier of the marijuana . . . seized in earlier warrants was named `Edwin’. [They] described `Edwin's’ vehicle and residence. CS # 2 provided [Burgos]'s full name, and both  identified a photograph of him.

The informants described in detail how [Burgos] obtains his supply of marijuana by traveling to Georgia and Michigan, and transports it back to Berks County in a hidden compartment in the toolbox of the pickup truck registered to [Burgos].

The information provided by CS # 1 and CS # 2 was corroborated by conversations intercepted in the Court ordered wiretaps, wherein several individuals . . . referred to the supplier of their marijuana as `Edwin.’ Police surveillance verified [Burgos]'s residence as 1315 Muhlenberg Street in the City of Reading and [Burgos] operated a white Dodge Ram pickup truck bearing Pennsylvania registration YVE–1957. . . .

On March 25, 2011, an order authorizing the installation and use of a mobile tracking device was entered, pursuant to 18 Pennsylvania Consolidated Statutes § 5761. The order authorized the attachment of the device to [Burgos]'s pickup truck. On March 28, 2011, the device was placed on [Burgos]'s vehicle. [It] enabled Harris and his colleagues to monitor the activities of [Burgos]. . . . 

On April 2, [Burgos] traveled from his residence to a home in Allentown, in the 600 block of North Mohr Street. After leaving that area at 11:05 a.m., [Burgos] made several stops in the vicinity of Allentown, and at approximately 12:56 p.m. departed and headed west and south, ultimately stopping near Dublin, Virginia, at approximately 8:20 p.m.

On April 3, 2011, at approximately 6:03 a.m. the vehicle departed Dublin, and traveled through North and South Carolina and into Georgia, stopping in Midvale at about 12:33 p.m. [It] remained [there] until April 4, and at 6:22 [moved a short distance. [About] one-half hour later, the vehicle began to retrace its route north. . . .

The vehicle was traced via the device back to Pennsylvania and visual surveillance began as [it] entered the Pennsylvania Turnpike. [Burgos] was . . . stopped by Trooper Anthony Todaro, of the Pennsylvania State Police at 9:30 p.m. on Route 222 in southern Berks County. 

After the vehicle was stopped, the search warrant was obtained, and the vehicle was towed to the Pennsylvania State Police Barracks in Reading and ultimately searched. Among the items found . . . were thirty-four (34) black plastic bags containing marijuana, which had been secreted in a special compartment in the toolbox of [Burgos]'s pickup truck.

Commonwealth v. Burgos, supra.

After the truck was searched, officers got another search warrant for the premises

at 630 North Mohr Street in Allentown, Lehigh County, Pennsylvania. The search was based on information that was developed in the search warrant for [Burgos]'s vehicle, and included information to the effect that on March 28, 2011, [Burgos] traveled from his residence in Reading to the North Mohr Street area, returning that evening. 

The warrant affidavit for the North Mohr Street residence repeats the information contained in the warrant for [Burgos]'s vehicle by detailing [Burgos]'s movements from April 2 to the evening of April 4 when the traffic stop . . . was made. . . .

Commonwealth v. Burgos, supra.

Burgos was charged with the crimes noted above and filed the motion to suppress noted above, which sought suppression of “evidence obtained as a result of the GPS placement and monitoring, evidence seized from his truck, his statement regarding marijuana in the hidden compartment of the truck, and evidence seized from the 630 Mohr Street residence.”  Commonwealth v. Burgos, supra.  The trial judge denied the motion, finding that the statutory “order authorizing the use of the mobile tracking device” was based on probable cause.  Commonwealth v. Burgos, supra.  The order was issued under 18 Pennsylvania Consolidated Statutes § 5761, which governs the installation and use of mobile tracking devices.

On March 5, 2012, Burgos filed a motion asking the judge to reconsider the ruling in “light of the recent United States Supreme Court decision in” U.S. v. Jones, 132 S.Ct.945 (2012). Commonwealth v. Burgos, supra.  As the Superior Court noted, “ the Jones Court determined that the governmental installation and monitoring of a GPS device on a target's vehicle constitutes a `search’ under the 4th Amendment”. Commonwealth v. Burgos, supra.

On April 3, 2012, after considering the issue in light of Jones, the trial judge reversed her

original suppression decision and grant[ed] Burgos's motion as to all evidence. The court concluded `Jones stands for the proposition that the use of a GPS tracking device on a suspect's vehicle is subject to the requirement that it cannot be conducted without a warrant based on a finding of probable cause.’ . . . 

[T]he court determined § 5761 was no longer applicable and the search warrant requirements specified in the Pennsylvania Rules of Criminal Procedure governed the present matter.  The court found the police violated several search warrant requirements and opined that it was constrained to conclude that the evidence should be suppressed.

Commonwealth v. Burgos, supra.

The prosecution used an interlocutory appeal, as of right under Pennsylvania Rules of Appellate Procedure 311(d) to ask the Superior Court to review the trial judge’s ruling.  Commonwealth v. Burgos, supra.  On appeal, the prosecution made two arguments.

First, it conceded “that the installation and monitoring of the GPS on Burgos's truck was a `search’ for purposes of 4th Amendment analysis based on in Jones” but claimed the trial court judge “misinterpreted Jones by concluding that a search conducted through GPS monitoring is per se unreasonable.” Commonwealth v. Burgos, supra.  Second, the prosecution argued that “the trial court` `improperly inferred a warrant requirement’ based on Jones”, i.e., incorrectly required a search warrant for the installation and use of a GPS device. Commonwealth v. Burgos, supra. 

The Superior Court began its analysis of the first argument by noting that the Jones Court “concluded the Government committed a trespass by attaching the GPS device to the defendant's car and such action constituted a search under the 4th Amendment.”  Commonwealth v. Burgos, supra.  It also noted that “[d]espite this holding, the Jones Court did not address whether the government must obtain a warrant to install and use a GPS tracking device, and if not, what level of suspicion is required, reasonable suspicion or probable cause.” Commonwealth v. Burgos, supra.  As this court noted, that omission has “created a variance among the federal district courts”, i.e., the federal trial courts do not agree on whether a warrant is required or whether officers can proceed without a warrant based on reasonable suspicion or probable cause. 

After reviewing a number of federal district court decisions (which are not binding on this court), the Superior Court agreed with the trial judge that

Jones is controlling and the attachment and monitoring of a GPS tracking device to Burgos's car constituted a `search’ under the 4th Amendment. Furthermore, whether we apply the per se unreasonableness standard . . . or the balancing test . . . , we are compelled to conclude that for the police to attach and monitor a GPS tracking device to an individual's vehicle in Pennsylvania, the police must have probable cause. Therefore, the trial court was correct in finding that the officers needed probable cause to install and monitor the GPS tracker to the Burgos's car.

Commonwealth v. Burgos, supra.

(As to the standards noted above, the first comes from federal district court opinions holding that the warrantless installation and monitoring of a GPS device on someone’s vehicle is a per se violation of the 4th Amendment.  The second standard comes from other federal opinions which have found that because the installation and use of such a device is a “significant intrusion” on individual privacy rights, balancing that intrusion against the government’s need to obtain information does not justify allowing the installation of such a device without complying with the 4th Amendment, i.e., without first obtaining a warrant. Commonwealth v. Burgos, supra.)

Here, as noted above, the officers relied on a “court-authorized order, pursuant to § 5761” in attaching the GPS device to Burgos’ vehicle.  Commonwealth v. Burgos, supra. Section 5761(c)(4) says an order authorizing the use of such a mobile tracking device issues if the officer applying for the order shows there is “reasonable suspicion that criminal activity” has been/is in progress and the device will yield evidence of that activity.  Commonwealth v. Burgos, supra.

The trial court judge found that the officers in this case complied with all of the requirements of § 5761 and “`that the information provided established not only reasonable suspicion of criminal activity, but rather the higher standard of probable cause.’” Commonwealth v. Burgos, supra. But, as noted above, she also found that officers could not rely on § 5761 after Jones.  Commonwealth v. Burgos, supra.

The Superior Court found that the trial judge erred in that ruling.  Commonwealth v. Burgos, supra.  It found that “in keeping the purpose and functionality of the Wiretap Act in mind, it is evident that these wiretap orders serve as the functional equivalent of traditional search warrants.”  Commonwealth v. Burgos, supra.  

It also found that the trial judge erred “in its conclusion that § 5761 no longer governs and that Pennsylvania Rules of Criminal Procedure now apply to the use of GPS devices by investigating officers.”  Commonwealth v. Burgos, supra.  The court noted that, after reviewing Jones and the cases interpreting its holding, “we see nothing that would support the notion that a GPS device placed onto a vehicle in full compliance with § 5761 . . . offends the 4th Amendment”.  Commonwealth v. Burgos, supra. 

So, since this court found that an order validly issued under the Pennsylvania Wiretap Act can be the equivalent of a 4th Amendment search warrant, it found it necessary to determine whether the order in this case was based on probable cause, as required by the 4th Amendment.  Commonwealth v. Burgos, supra. 

As noted above, the trial judge originally denied Burgos’ motion to suppress because she found the order was based on probable cause.  Commonwealth v. Burgos, supra.  The Superior Court noted that fact, and then explained that

[a]fter conducting an independent review of the investigating officers' affidavit of probable cause, we agree with the court's original disposition that the facts established the requisite probable cause to support the issuance of the order authorizing the mobile tracking device.

Commonwealth v. Burgos, supra. 

It therefore reversed the trial court’s order granting the motion to suppress and remanded the case for further proceedings.  Commonwealth v. Burgos, supra. 

If you’re interested, you can read a little more about the facts in the case in the news story you can find here.

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