The police flagrantly violated the Fourth Amendment by placing a GPS device on a car without a warrant. Defendant was the target, but he’d sold and relinquished control of the car to another days later by the time of the stop where he was just a passenger. Therefore, despite the flagrant Fourth Amendment violation, defendant has no standing. The stop was justified by speeding. United States v. Terry, 2017 U.S. Dist. LEXIS 37630 (S.D. W.Va. March 16, 2017):
In their briefing, the parties focus [*8] solely on the attenuation doctrine and whether Ms. Moore’s speeding violation purged the taint of the government’s illegal GPS search. Neither party addresses whether the defendant has standing to challenge MDENT’s use of the GPS unit to track Ms. Moore’s car. After reviewing the evidence, I determine that this case ultimately turns on the defendant’s lack of standing; however, before addressing standing, I am compelled to briefly address the police misconduct at issue in this case.
As I found during the hearing on this Motion, MDENT’s conduct constitutes a flagrant constitutional violation: MDENT agents disregarded clear, settled case law; misled a magistrate judge; and utilized the fruit of the illegal GPS search to seek out and confirm the intervening crime’s occurrence. The government asserts that an intervening traffic violation alone is sufficient to attenuate the pervasive taint of MDENT’s onerous conduct; however, allowing an intervening circumstance to categorically attenuate the taint of police misconduct is a departure from Supreme Court precedent. See Brown v. Illinois, 422 U.S. 590, 603-04 (1975) (“No single fact is dispositive [in determining attenuation]. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a … talismanic test.”). It is imperative that courts consider all factors in the attenuation test—particularly the flagrancy of the police misconduct. Id. (“The temporal proximity of the [illegal search to the discovery of the evidence], the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant [to attenuation analysis].” (emphasis added)). Indeed, attenuation analyses focus primarily on “considerations relating to the exclusionary rule and the constitutional principles which it is designed to protect.” United States v. Ceccolini, 435 U.S. 268, 279 (1978). “[T]he purpose of the exclusionary rule is to deter undesirable police conduct, where that conduct is particularly offensive the deterrence ought to be greater and, therefore, the scope of exclusion broader.” 6 Wayne R. LeFave, Search & Seizure: A Treatise on the Fourth Amendment § 11.4(a) (5th ed.) (citation omitted).
Here, MDENT agents openly disregarded the law and exploited an illegal GPS search to further an investigation. That disregard undermines our system of justice. See Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting) (“If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.”). Such deliberate indifference to the law invites exclusion; however, exclusion is a remedy afforded only to those with standing.
The defendant lacks standing to challenge MDENT’s GPS search of Ms. Moore’s car on April 20, 2016. As with other vehicular searches, a defendant has standing to challenge a GPS search only where that defendant asserts a property or possessory interest in the searched vehicle. See United States v. Jones, 565 U.S. 400, 404 n.2 (2012) (determining that standing was not an issue because the defendant was the exclusive driver of the vehicle and “he at least had the property rights of a bailee”); United States v. Gibson, 708 F.3d 1256, 1275-79 (11th Cir. 2013) (determining that a defendant who borrowed a vehicle that was registered to another person had standing to challenge a GPS search while the vehicle was in his possession); United States v. Hernandez, 647 F.3d 216, 220 (5th Cir. 2011) (determining that a defendant borrowing a vehicle after a GPS unit had been placed without a warrant had standing to challenge the use of the GPS to track his movement during the time he was in possession of the vehicle). Here, the defendant had a possessory interest in the Kia when the MDENT agent attached the GPS unit because he was driving the Kia at that time. However, the defendant adduced no evidence that he owned the car; indeed, the record indicates Ms. Moore is the registered owner of the Kia. Therefore, he lacks an ownership interest in the Kia.
Because the defendant lacks an ownership interest in the Kia, his standing is limited to times when he actually possessed the vehicle. The record indicates that the defendant relinquished control over the Kia prior to MDENT’s use of the GPS tracker on April 20, 2016, because he was a passenger when MDENT agents pulled over the Kia. Therefore, the defendant had no protectable Fourth Amendment interest in the Kia on April 20, 2016, and the defendant lacks standing to challenge the GPS search of the Kia on that day. Accordingly, the defendant’s Motion must be DENIED.
See Treatise § 4.19 n.4 where standing has been recognized as a remedy where the police conduct was flagrant.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)