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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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