N.D.Ill.: No IAC for not filing motion under Jones where GFE would have applied

Defense counsel was not ineffective for not filing a motion to suppress under Jones which was decided eight days before defendant’s sentencing. Defense counsel correctly assessed that Jones didn’t apply to him and discussed it with the defendant before sentencing. Besides, Davis good faith would have made it valid. United States v. Williams, 2013 U.S. Dist. LEXIS 105353 (N.D. Ill. July 29, 2013):

Williams also asserts that his trial counsel was ineffective for advising him to plead guilty rather than moving to withdraw his plea in light of Jones, which was decided eight days before his sentencing. Neither the law nor the record before the Court support Williams’s position. First, Williams concedes that his trial attorney discussed the Supreme Court’s decision in Jones with him, advised him that the case did not apply to him, and advised that a successful motion to suppress would be unlikely to change the outcome of his case at trial due to the physical evidence against him and his previous incriminating statements. (Dkt. 1, p. 17.) Generally, when an attorney articulates a strategic reason for a decision, the court defers to that choice. See Strickland, 466 U.S. at 690-691; … Accordingly, if an attorney’s decision was sound at the time the decision was made, the decision cannot support a claim of ineffective assistance of counsel. Winters v. Miller, 274 F.3d 1161, 1166 (7th Cir. 2001). Here, the record shows that Williams’s trial counsel was aware of Jones and decided against moving to withdraw Williams’s guilty plea and filing a motion to suppress on his behalf based on her determination that Jones did not apply and in light of other incriminating evidence against him. Under such circumstances, Williams’s trial counsel cannot be said to have been ineffective. …

Furthermore, the Supreme Court’s holding in Jones was not dispositive of the constitutionality of the GPS tracking on Williams’s vehicle. In Jones, the Supreme Court held that the installation of a tracking device on a car constitutes a search within the meaning of the Fourth Amendment. 132 S.Ct. at 949. However the Court did not decide whether such a search could only be conducted by first obtaining a warrant or, alternatively, be supported by reasonable suspicion alone. See id. at 953-954; United States v. Flores-Lopez, 670 F.3d 803, 807 (7th Cir. 2012) (Seventh Circuit precedent that “a minimally invasive search may be lawful in the absence of a warrant, even if the usual reasons for excusing the failure to obtain a warrant are absent … survives Jones, which declined to decide whether the search entailed in attaching a GPS device required a warrant”); see also United States v. Gibson, 708 F.3d 1256, 1276 (11th Cir. 2013) (“The [Jones] Court expressly declined to consider whether the use of the [GPS] device, without a warrant, to track a vehicle’s movements is valid under the Fourth Amendment if supported by probable cause or reasonable suspicion.”); compare also United States v. Robinson, 903 F.Supp.2d 766, 785-87 (E.D. Mo. 2012) (relying on pre-Jones precedent to find reasonable suspicion sufficient to engage in GPS monitoring of vehicle), with United States v. Ortiz, 878 F.Supp.2d 515, 535-36 (E.D. Pa. 2012) (automobile exception does not apply to permit the government’s warrantless installation and monitoring of a GPS tracking device). Accordingly, it does not automatically follow from Jones that the search of Williams’s vehicle using GPS monitoring violated his constitutional right against unreasonable search and seizure.

Lastly, even assuming it is now the law of this Circuit that law enforcement obtain a warrant for every search that utilizes GPS monitoring, Jones would not have compelled the exclusion of evidence obtained through GPS monitoring in this case. The Supreme Court held in Davis v. United States, 131 S.Ct. 2419 (2011), that the “searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.” Id. at 2423-24 (reasoning that the purpose of the exclusionary rule is to deter Fourth Amendment violations and that purpose is not served by the invocation of the rule when it is used to punish law enforcement officers who comply with governing appellate precedent). The search at issue here was conducted when the prevailing law of this Circuit, pursuant to Garcia, was that a warrant is not required to either install a GPS device or perform GPS tracking. Several courts, applying Davis, have rejected challenges to law enforcement’s use of GPS monitoring where the search was conducted prior to the Supreme Court’s holding in Jones. See, e.g., United States v. Sparks, 911 F.3d 58, 62-63 (1st Cir. 2013) (suppression inappropriate notwithstanding Jones because “the agents’ attachment and monitoring of the GPS tracker was authorized by settled, binding precedent”); … Therefore, even if the probability of winning a motion to suppress was the only strategic consideration Williams’s counsel should have taken into account in advising him whether to plead guilty, Williams’s argument that his counsel was ineffective for not withdrawing his guilty plea and filing a motion to suppress in the days leading up to his sentencing still fails because he has not shown a motion to suppress based on Jones would have been meritorious in his case. See Cieslowski, 410 F.3d at 360.