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U.S. v Fisher

Case No. 13-1623 (C.A. 6, Mar. 7, 2014)

The question presented on appeal is whether the evidence derived from a warrantless GPS automobile search should be excluded or whether the good-faith exception to the warrant requirement applies. We determine that the police had an objectively reasonable good-faith belief that their conduct was lawful and was sanctioned by then binding appellate precedent, and thus, the exclusionary rule does not apply. We therefore AFFIRM the denial of Fisher’s motion to suppress.

I. FACTS



In May of 2010, the Drug Enforcement Agency and members of the Upper Peninsula Substance Enforcement Team received information from a confidential informant that Brian Scott Fisher (“Fisher”) was involved in the sale of cocaine and had suppliers in Lansing, Michigan, and Chicago, Illinois. The informant also revealed that Fisher would drive to Lansing, Michigan, in a white four-door Oldsmobile on May 28, 2010, and would return to Escanaba, Michigan, the following day with a shipment of drugs. On May 28, 2010, police attached a Global Positioning System (“GPS”) unit to the bumper of Fisher’s car. The battery-operated GPS provided the vehicle’s location when contacted by a telephone signal so long as the GPS was within range of a cell phone tower. Relying on a combination of GPS monitoring and physical surveillance, the police confirmed that Fisher traveled to Lansing and later returned to Escanaba.

The next month, in early June 2010, the confidential informant again told police about an impending drug run, this time to Chicago, Illinois. The informant described the vehicle that would be used, who would be traveling, and the dates of the trip. The events that unfolded corroborated the informant’s tip. Officers observed Fisher leave Escanaba on June 11, 2010. Using ten to twelve vehicles, the police followed Fisher until he arrived in Chicago. The GPS then indicated that Fisher’s vehicle stopped at a location in Plainfield, Illinois. This was corroborated by physical surveillance. When Fisher’s vehicle left the Chicago area several days later, on June 14, 2010, the GPS informed police that the vehicle had started traveling northbound. While the GPS does have a “live track” feature, which allows the police to track the vehicle in real time, it was used sparingly because of the GPS’s limited battery life. Once Fisher entered Michigan, he was stopped. After a trained narcotics dog named “Rambo” alerted to the presence of drugs in the vehicle, police conducted a warrantless search and discovered three ounces of cocaine.
 

 

Judge(s): David McKeague
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Constitutional Law , Criminal Justice
 
Circuit Court Judge(s)
Deborah Cook
Ronald Gilman
David McKeague

 
Trial Court Judge(s)
Allan Edgar

 
Appellant Lawyer(s) Appellant Law Firm(s)
Paul Peterson Office of the Federal Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Sally Berens U.S. Department of Justice

 

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Click the maroon box above for a formatted PDF of the decision.
no. 13-1623 united states v. fisher page 5 united states of america, the beeper enabled police to be more effective in detecting crime, it simply has no court has now designated the opinion as one recommended for full-text publication. reckless, or grossly negligent conduct, or in some circumstances recurring or systemic installed, indicating that “a physical trespass is only marginally relevant to the question distinguishable to make prior precedent inapposite, the facts of the present case are a far no. 13-1623 united states v. fisher page 2 suppliers in lansing, michigan, and chicago, illinois. the informant also revealed that such as a “beeper,” that had been installed on a container with the consent of the then- “the grant or denial of a motion to suppress is a mixed question of fact and law. unequivocal. see buford, 632 f.3d at 276 n.9. obviously, the technological device in office, grand rapids, michigan, for appellee. in may of 2010, the drug enforcement agency and members of the upper amendment violations.” davis, 131 s. ct. at 2426. because “[e]xclusion exacts a heavy determined that use of a gps tracker did not require a warrant, and the eighth circuit unanimous understanding of multiple circuit courts should not be ignored. it again goes to the broader impression that the officers acted in good faith and in justifiable reliance we also observe that at the time the gps tracking in the present case took place, vehicle left the chicago area several days later, on june 14, 2010, the gps informed decided and filed: march 7, 2014* motion to suppress, again arguing that the use of the gps violated the fourth , 455 (6th cir. 1983) (indicating that beepers may be used to track individuals in public grossly negligent.” davis, 131 s. ct. at 2427 (internal quotation marks omitted). at the upon the training that they received. ‘search.’” 132 s. ct. 945, 949 (2012). in light of jones, the parties jointly moved to some appellate courts have taken this a step further, holding that knotts and violate the fourth amendment when the container was later delivered to a buyer who _________________ while forest and cassity dealt with cell phones and beepers, not gps, the cases eighth, ninth, and eleventh circuits had all found that the police conduct in the present case was lawful. police that the vehicle had started traveling northbound. while the gps does have a police arrested fisher for possession with intent to deliver cocaine in violation installation of a beeper in a container with the consent of the original owner did not aspartofamoreextensivegovernmentalsurveillance programthat would be sufficiently constitutionality of the practice.5 n had already approved the police conduct. of 21 u.s.c. §§ 841(a)(1) and 841(b)(1)(c). following his indictment, fisher moved them in this case.” id. at 1086. the next year in united states v. karo, 104 s. ct. 3296, (2009) (internal citation and quotation marks omitted) (emphasis added). to assess had indicated that use of a gps tracker without a warrant was permissible for a location. id. at 951–52. as this court explained, “[the defendant] had no legitimate 2 paragraph decision in garner did not address the fourth amendment concerns or the overarching require a warrant. see united states v. hernandez, 647 f.3d 216, 220–21 (5th cir. 2011); united states phone tower. relying on a combination of gps monitoring and physical surveillance, no. 13-1623 united states v. fisher page 6 officers on notice that there was divided precedent on the constitutionality of a gps search. additionally, whether the fourth amendment has been violated.” karo, 104 s. ct. at 3302. a reasonable officer would physical trespass. in forest, the police did not have to attach the tracking device to the defendant’s discounted the relevance of the physical trespass that occurred when the beeper was 5 suppress on january 18, 2013. as fisher did not wish to withdraw his conditional guilty that is the exclusionary rule. as it is apparent that the police acted in reasonable, good- “live track” feature, which allows the police to track the vehicle in real time, it was used _________________ 1 use of a gps to monitor a vehicle constituted a search under the fourth amendment.2 fisher’s motion to suppress. decided in august 2010, after the search in this case took place, and therefore could not have placed the persons, houses, papers, and effects against unreasonable searches and seizures.” in the lower court. jones, 132 s. ct. at 954. before turning to the relevant sixth circuit case law, we briefly review the pre- regarding the vehicle’s location, speed, and direction of travel. this information is stored on the gps unit this decision was originally issued as an “unpublished decision” filed on march 7, 2014. the “[e]xclusion is not a personal constitutional right” but is intended “to deter future fourth the police confirmed that fisher traveled to lansing and later returned to escanaba. no. 2:10-cr-00028-1—r. allan edgar, district judge. vehicle that would be used, who would be traveling, and the dates of the trip. the events authorities. officers testified at the suppression hearing that they believed their conduct 33 months of imprisonment. whether exclusionisdemanded,a“rigorousweighing of [] costs and deterrence benefits” conduct here was in good faith. subject to exclusion at trial. as the supreme court has made clear, however, (2005) (holding that “[a]ny fact (other than a prior conviction) which is necessary to support a sentence magistrate recommended that the good-faith exception to the exclusionary rule should a tracking device to follow an individual in public spaces was permissible. was stopped. after a trained narcotics dog named “rambo” alerted to the presence of remand the appeal to the district court. this court granted the motion to remand on april b. officers acted in good faith when they utilized the gps tracker 4 more specifically, the seventh and ninth circuits had perez, 640 f.3d 272, 278 (7th cir. 2011) (flaum, j., concurring) (“a gps device works holding.”), vacated, 132 s. ct. 1534 (2012). thus, although a gps device could be used supported by reasonable suspicion or probable cause because this was not raised by the government before to suppress the evidence seized from his vehicle, arguing that the warrantless use of the surveillance, and the gps unit. the district court adopted the magistrate’s been our last resort, not our first impulse.” herring v. united states, 129 s. ct. 695, 700 on brief: paul a. peterson, office of the federal public defender, in light of this overwhelming authority, there is no indication in the present case for the sixth circuit had no knowledge of the presence of the beeper. importantly, the court in its analysis established that a decision of the supreme court declaring a new constitutional rule cir. 2012) (similar). our holding today is thus consistent with our sister circuits. of cocaine. drugs. on may 28, 2010, police attached a global positioning system (“gps”) unit1 recommendation and denied the motion to suppress on february 11, 2011. fisher judgment in forest, which therefore remained binding authority. of electronic tracking devices was permissible. given this uniform authority, the police that the dea’s use of cell-site data effectively turned his cellular phone into a tracking the only other meaningful difference between forest and the present case is the absence of a drugs in the vehicle, police conducted a warrantless search and discovered three ounces jones, which held that “the government’s installation of a gps device on a target’s a suspected drug trafficker’s phone, without allowing it to ring, and tracked him on the judgment of sentence inforest, was later vacated by garner v. united states, 543 u.s. 1100 applied). we need not go that far here because at the time of the search the sixth circuit 632 f.3d 264, 269 (6th cir. 2011) (internal quotation marks omitted) (“it is firmly for the reasons provided above, we affirm the district court’s denial of plea, the district court resentenced him to time served. fisher appeals the denial of his (citation omitted). depending on use. the unit offers a “live track” function that provides, as the name suggests, information reasonable period of time so long as the police have “reasonable suspicion.” see united - exclusionary rule is justified by these deterrence principles varies with the culpability 1 be informed when he had crossed certain preset geographic boundaries. on june 11, 2010. using ten to twelve vehicles, the police followed fisher until he punishment even for flagrant misconduct. but, similarly, the fact that the officers “conduct[ing]asearchinobjectivelyreasonable reliance on binding appellate precedent, put differently, our precedent on the constitutionality of warrantless tracking was circuits, after the search in the present case took place but prior to jones, held that a gps search did not plaintiff-appellee, admitted by the defendant or proved to a jury beyond a reasonable doubt”). the supreme court’s one finally, we note that the officers conducting the search conformed to the v. i. facts no. 13-1623 united states v. fisher page 7 opinion conduct is lawful does not make the conduct such, nor does it prevent a court from arrived in chicago. the gps then indicated that fisher’s vehicle stopped at a location vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a states v. pineda-moreno, 591 f.3d 1212 (9th cir. 2010), vacated, 132 s. ct. 1533 device, violating his rights under . . . the fourth amendment.”). this is again precisely f.3d 544 (d.c. cir. 2010), holding that gps tracking was a fourth amendment search. maynard was received advice from prosecutors and training from the drug enforcement agency and - such conduct was consistent with the constitution; no circuit authority had indicated that (2012); united states v. marquez, 605 f.3d 604, 610 (8th cir. 2010); united states v. * vehicle. but as previously discussed, prior to jones, the supreme court’s jurisprudence had downplayed cry from that orwellian vision. the same information by following garner’s car.” id. at 951. our decision in forest was the court did not consider whether the search would have been considered “reasonable” if the fourth amendment protects the “right of the people to be secure in their bestowed upon them at birth with such enhancement as science and technology afforded the warrant requirement applied and that there was probable cause to search the vehicle, 737 f.3d 251, 261–62 (2d cir. 2013) (finding that police could reasonably have while fisher’s appeal was pending, the supreme court decided united states v. toll on both the judicial system and society at large,” not all violations of the fourth following briefing and a hearing, at which several officers testified that they had fisher would drive to lansing, michigan, in a white four-door oldsmobile on may 28, before: gilman, cook, and mckeague, circuit judges. the relevance of a physical trespass. “[a] physical trespass is only marginally relevant to the question of no. 13-1623 what the police did here. officers heavily relied on physical surveillance to follow place a gps device on a vehicle and that the good-faith exception to the warrant rule evidence derived from a warrantless gps automobile search should be excluded or that the police acted in bad faith or that their conduct was “deliberate, reckless, or 3 applies to all similar cases pending on direct review.”) on remand, fisher renewed his peninsula substance enforcement team received information from a confidential faith reliance and that their conduct was lawful, the exclusionary rule does not apply. precedent that upholds the constitutionality of a police practice that is later overruled by brian scott fisher, their technological predecessors. gps devices clearly have capabilities that older _________________ > jones,thesupremecourt,relyingoncommon-law trespass doctrine, determined thatthe the bumper of fisher’s car. the battery-operated gps provided the vehicle’s location denial of his motion to suppress evidence, and the district court sentenced him to iii. conclusion conduct was lawful; the relevant supreme court case law had indicated such a practice no. 13-1623 united states v. fisher page 8 exercising the exclusionary rule. a ruling to the contrary would shield officers from police officers dialed the good-faith safe harbor, even though the technology described by the cases was not conclusions of law de novo.” united states v. ellis, 497 f.3d 606, 611 (6th cir. 2007) (1983), the supreme court held that the monitoring of an electronic tracking device, does not apply. we therefore affirm the denial of fisher’s motion to suppress. misconduct nor improve public safety, and consistent with davis v. united states, 131 s. 1126–28 (9th cir. 1999). the police had an objectively reasonable good-faith belief that their conduct was lawful (5th cir. 2013) (similar); united states v. pineda-moreno, 688 f.3d 1087, 1090–91 (9th negaunee,michigan,forappellant. sallyj.berens,unitedstatesattorney’s public roads by identifying which cell phone towers were being “pinged.” this court places but not in private areas like homes), vacated, 468 u.s. 1212 (1984). the gps unit used in this case was the guardian 811. the unit can be affixed to an automobile ii. analysis constitutional foundation.” knotts, 103 s. ct. at 1086; see also united states v. cuevas- when the vehicle crosses a “fence” and thereby enters or exits a predetermined geographic area. 3301–02 (1984), the supreme court further elaborated, in relevant part, that the “[i]nsofar as respondent’s complaint appears to be simply that scientific devices such as received consistent advice from multiple authorities that correctly reflected the be applied. the district court adopted the recommendation and denied the motion to karo actually authorized the warrantless use of gps devices and therefore are ct. 2419, 2426 (2011), we find that the good-faith exception applies. v. smith, 741 f.3d 1211, 1218–25 (11th cir. 2013) (similar); united states v. sparks, 711 motion to suppress. and was sanctioned by then binding appellate precedent, and thus, the exclusionary rule pursuant to sixth circuit i.o.p. 32.1(b) subsequently entered a guilty plea conditional upon the right to appeal the district court’s the present case is not exactly the same as that used in forest, but the effect it has is x tracking devices lack. but these differences are not relevant to the present case, and clearlyindicatedthatthewarrantlessuseofelectronic tracking devices was permissible.4 no. 13-1623 united states v. fisher page 3 was lawful; and our precedent also provided binding authority permitting such conduct. the use of a gps tracker was unconstitutional, and three circuits had held that such f.3d 58, 66–67 (1st cir. 2013) (similar); united states v. andres, 703 f.3d 828, 834–35 recommended for full-text publication themselves a basis for asserting the good-faith exception. see united states v. aguilar, no. 13-1623 united states v. fisher page 4 time the police placed the tracking device on fisher’s vehicle, the training and guidance no. 13-1623 united states v. fisher page 9 expectation of privacy in the cell-site data because the dea agents could have obtained when contacted by a telephone signal so long as the gps was within range of a cell for the western district of michigan at marquette. was lawful based upon drug enforcement agency training, police trainings, and fisher directs our attention to the d.c. circuit’s determination in united states v. maynard, 615 whether the good-faith exception to the warrant requirement applies. we determine that gps device violated the fourth amendment. after holding a hearing, the magistrate the next month, in early june 2010, the confidential informant again told police that unfolded corroborated the informant’s tip. officers observed fisher leave escanaba or can be transmitted by cell signal. apart from the “live track function,” the unit can also notify the police jones supreme court precedent. in united states v. knotts, 103 s. ct. 1081, 1087 judge determined in a written report on january 11, 2011, that the vehicle exception to amendment and that any evidence resulting from the illegal search should be excluded. v. smith, 387 f. app’x 918, 921 (11th cir. 2010) (per curiam). thus, prior to jones, the fifth, seventh, counsel consistent with this court’s prior determination in united states v. cassity, 720 f.2d 451, every other circuit to have considered the issue had uniformly upheld the appeal from the united states district court concluded, pre-jones and based on knotts and karo, that a warrant was not needed to owner, did not constitute a search in violation of the fourth amendment. “nothing in in united states v. forest, 355 f.3d 942 (6th cir. 2004),3 consistent training and advice that they received from federal and state law enforcement in approximately 30 seconds and is held in place using magnets. the unit’s battery lasts one to ten days constituted binding precedent for purpose of warrantless gps tracking); united states - the fourth amendment prohibited the police from augmenting the sensory faculties of whether the fourth amendment has been violated.” id. at 3302. taken together, at the time of the disputed gps surveillance, the supreme court had strongly is necessary. davis, 131 s. ct. at 2427. in particular, because the extent to which the file name: 14a0049p.06 _________________ trackers. as such, officers relying on these earlier cases were still within the scope of the supreme court. as suppression in such circumstances would neither deter police other circuits have similarly held that pre-jones cases, authorizing the use of the exclusionary rule does not apply.” davis, 131 s. ct. at 2434. conversations with prosecutors. the existence of police training indicating that certain fisher and used the gps device to sporadically identify the defendant’s location or to mckeague, circuit judge. the question presented on appeal is whether the indicated, and the sixth circuit and three other circuits had held, that the warrantless use cir. jan. 28, 2014) (holding that prior cases permitting the warrantless use of a beeper upheld the practice, finding that the police did not conduct a search under the fourth none of this is to discount the possible differences between gps devices and these are not the type of circumstances that warrant the application of the “bitter pill” negligence.” herring, 129 s. ct. at 701–02. when police act in good faith, however, differently than a beeper, but nothing inheres in the technology to take it out of knotts’s united states court of appeals - in plainfield, illinois. this was corroborated by physical surveillance. when fisher’s sparingly because of the gps’s limited battery life. once fisher entered michigan, he about an impending drug run, this time to chicago, illinois. the informant described the exception to the exclusionary rule applies where the police rely on then-binding referencing the information acquired from the confidential informant, the physical evidence that has been obtained in violation of the fourth amendment may be of the law enforcement conduct, the cost-benefit analysis should focus on the “flagrancy nearly identical: police used the defendant’s cell phone in forest like a gps tracker to on appeal, we review the district court’s findings of fact for clear error and its - knotts and karo strongly suggested that the warrantless installation and monitoring of a. the exclusionary rule (2005), and remanded for further consideration in light of united states v. booker, 125 s. ct. 738, 756 amendment result in the exclusion of evidence. id. at 2427. “[e]xclusion has always informant that brian scott fisher (“fisher”) was involved in the sale of cocaine and had 3, 2012, and vacated fisher’s judgment of conviction. see united states v. buford, defendant-appellant. - jones, 132 s. ct. at 949. the question presented on appeal is whether the good-faith if we were to consider maynard, we would also be obliged to note that both the fifth and the eleventh garcia, 474 f.3d 994, 997–99 (7th cir. 2007); united states v. mciver, 186 f.3d 1119, other police agencies indicating that the warrantless use of gps was permitted, the not have been able to anticipate this shift in the supreme court’s fourth amendment jurisprudence. amendment when they obtained the cell-site data and thereby identified the defendant’s 2010, and would return to escanaba, michigan, the following day with a shipment of to of the police misconduct” and on whether the police misconduct was “deliberate, exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be identify the defendant’s location. see forest, 355 f.3d at 948 (“[defendant] contends exactly the same. see united states v. ransfer, -- f.3d --, 2014 wl 292379, *5–7 (11th tracking devices like beepers, provided binding authority for the warrantless use of gps provided to these officers by various police agencies and prosecutors all indicated that


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