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.