The Volokh Conspiracy
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Are you in the market for a used car? If so, you might not want to buy a car from a drug dealer. Or if you do, you might not want to sell drugs from the car yourself a few days later. In a new case, United States v. Wood, decided by a federal judge in Colorado last week, the court considered how the Fourth Amendment applies when the government has a warrant to install and monitor a GPS device on a car being used by one suspected drug dealer who then sold his car to another accused drug dealer. The court suppressed the evidence found of the second dealer's crimes on the ground that the government should have stopped the GPS monitoring when it was put on notice that the car might have been sold. I think the decision is problematic, and I thought I would explain why.
Here are the facts. The government obtained a search warrant to place a GPS device on a car driven by a suspected narcotics dealer known as "S.B." The warrant allowed the government to monitor the location of the car for 60 days after the device's installation. On June 7, officers placed the GPS device on the car and began monitoring its location. On June 28, officers watching the car noticed that it had a "for sale" sign in the window. Starting on July 3, the location and driving pattern of the car changed. Instead of being parked and driven in the area of S.B.'s house, the car began to be parked and driven on streets near a house about five miles away. On July 8, officers decided to visit the car in person and to watch it to see whether S.B. was still using it. They saw a man selling drugs from the car in a high school parking lot, and that led to the man's arrest and prosecution on narcotics and weapons charges.
It turned out, though, that the man selling drugs on July 8 was not S.B. A few days earlier, on July 2 or July 3, S.B. had sold the car to another accused drug dealer named Wood. It was Wood who was monitored the last 5 or 6 days, and it was Wood who was arrested for selling drugs from the car. Wood was charged in federal court, and he moved to suppress the evidence found of his crimes on the ground that the officers approached him in the parking lot only because they were still carrying out the warrant to monitor the location of S.B.
The district court, per Judge Christine Arguello, suppressed the evidence against Wood. According to Arguello, the officers were required to stop monitoring the car as soon as they had reason to know S.B. had sold it:
In this case, the probable cause undergirding the warrant was founded exclusively in the illicit activities of S.B. On July 2, nearly halfway through the lifecycle of the warrant, S.B. relinquished the possessory interest he had in the vehicle when it was sold and, in doing so, vitiated the probable cause at the heart of the warrant. The Government does not dispute that electronic tracking continued after the sale of the vehicle. If the executing officers knew or had reason to know of the sale, their continued search was "unsupported by probable cause" and violative of the Fourth Amendment.
Arguello relied on the Supreme Court's decision in Maryland v. Garrison. In Garrison, officers executing a warrant for what they thought was an apartment covering an entire third floor learned mid-search that the third floor was actually two different apartments. The officers were targeting McWebb's apartment, and without realizing it also searched Garrison's apartment. The Supreme Court commented:
If the officers had known, or should have known, that the third floor contained two apartments before they entered the living quarters on the third floor, and thus had been aware of the error in the warrant, they would have been obligated to limit their search to McWebb's apartment. Moreover, as the officers recognized, they were required to discontinue the search of respondent's apartment as soon as they discovered that there were two separate units on the third floor and therefore were put on notice of the risk that they might be in a unit erroneously included within the terms of the warrant.
Applying Garrison, Arguello held that the new location pattern put the officers on notice that the car had changed hands and was no longer being used by S.B. At that point, the officers had to stop monitoring. Because they continued monitoring the car after being put on notice that the car might have changed hands, the evidence had to be suppressed:
The Court recognizes that granting a motion to suppress in a case like this is an extraordinary remedy. However, it is the extraordinary duty of law enforcement officers to ensure that they pursue their important work with an appropriate regard for the foundational constitutional rights of those they police. Here, the executing officers had reason to believe that they were prosecuting a search without probable cause, and forged ahead anyway. For that reason, the Court must suppress.
I think this reasoning is problematic for a few reasons. Here's an overview of why.
1) Before we get to the warrant issue, we need to make sure that Wood was searched. If he wasn't searched, then he can't get any evidence suppressed. I don't think Wood was subject to a "search" under the trespass theory of United States v. Jones, which would focus on the installation of the device. The trespass of installing the GPS device occurred before Wood bought the car. S.B.'s property was trespassed upon, but Jones suggests that the trespass was over after the GPS device was installed. Importantly, Jones distinguished the earlier beeper case of Karo on the ground that the GPS device in Jones was installed after Jones took possession of the car. In Karo, by contrast, Karo took possession of a can of ether with a location tracking device already secretly inside it. The Supreme Court held that Karo couldn't object to the installation of the tracking device while Jones could: "Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor the container's location." The facts of Wood seem like the facts of Karo in that regard. Wood bought a car "as it came to him, [GPS device] and all," so I don't think he can claim that the installation of the GPS device during the ownership of someone else trespassed onto Wood's property.
2) There doesn't seem to be evidence that Wood was searched under the mosaic theory of the Jones concurrences, either, even assuming that the mosaic theory of the Fourth Amendment is viable. As I have explained, the mosaic theory posits that long-term surveillance that begins to reveal very private details about someone eventually becomes a search even if the same surveillance over the short term is not a search. But there's no indication in the Wood case that the monitoring revealed anything particularly private about Wood. Over five or six days, the monitoring revealed that someone unknown to the government—maybe S.B., maybe someone else—was driving and parking the car in a new neighborhood. The location of the car on July 8 was then used to go see the car in person. The officers then saw someone unknown in the car. Using the doctrinal test offered by Justice Sonia Sotomayor's mosaic concurrence in Jones, I don't see how those very limited facts "enable[d] the Government to ascertain, more or less at will, [Wood's] political and religious beliefs, sexual habits, and so on."
Arguello's opinion does include a standing analysis to determine whether Wood has standing to challenge a search of the car. I don't think the analysis works, though. Arguello asks whether Wood had enough rights in the car to have standing to challenge a physical search of it after he bought it. I think Jones calls for a different analysis. If the alleged search is the placing of the device on the car, the issue is when the car was searched, and did Wood have standing then. If the alleged search is the ongoing monitoring, the issue is whether Wood was monitored sufficiently for him to be searched. For more, see my mosaic theory article at 342 and this 2012 blog post.
3) If you assume that Wood was searched, I'm not sure how Maryland v. Garrison applies. Under Garrison, the officers have to stop searching when they have reason to believe they're in the wrong place. But it's not clear to me how that applies to facts like this one. I see the language in Garrison as indicating that officers should pause the search and investigate further, which is what the officers did here. A few days after the traffic pattern changed, they went to visit the car in person to see whether S.B. was still driving it. It's not clear to me what else they could have done. Should they have cut off all monitoring as soon as the traffic pattern changed, not visiting the car at all to see what explained the shift? That doesn't make much sense to me.
4) Finally, I found it odd that there was no good-faith analysis in the court's opinion. The court went straight from a ruling that Wood's Fourth Amendment rights were violated to a ruling that the evidence should be suppressed. Given the broad scope of the good-faith exception of the exclusionary rule, it's not clear to me why it doesn't apply here. At the very least, the issue needed to be analyzed.
Thanks to Brad Heath of USA Today for the link to the new decision.