U.S. v. Howard
U.S. v. Howard
2019 WL 7561543 (M.D. Ala. 2019)
August 26, 2019
Capel, Jr., Wallace, United States Magistrate Judge
Summary
Electronically stored information was used to track the suspect's movements and to determine the presence of contraband or other evidence of a crime. The court found that the installation and monitoring of the GPS tracking device did not violate the defendant's Fourth Amendment rights, and that the search of the vehicle was authorized under the automobile exception. The court also found that the use of the device to monitor the vehicle while the defendant was driving it did not infringe on his Fourth Amendment rights.
UNITED STATES OF AMERICA
v.
JOSHUA DRAKE HOWARD
v.
JOSHUA DRAKE HOWARD
Case No. 1:19cr54-WKW-WC
United States District Court, M.D. Alabama, Southern Division
Signed August 26, 2019
Capel, Jr., Wallace, United States Magistrate Judge
RECOMMENDATION OF THE MAGISTRATE JUDGE
*1 Defendant Joshua Drake Howard (“Howard” or “Defendant”) is charged with violations of 21 U.S.C. § 841(a)(1), possession with intent to distribute methamphetamine; 18 U.S.C. § 924(c)(1)(A), possession of a firearm in furtherance of a controlled substance crime; 18 U.S.C. § 922(g)(1), possession of a firearm by a convicted felon (two counts); and 18 U.S.C. § 922(k), possession of a firearm with an obliterated serial number. Doc. 39. Evidence of those alleged crimes was seized following a search of Defendant’s vehicle after law enforcement received a tip from a confidential informant and as part of a second unrelated routine traffic stop. Defendant filed a Motion to Suppress (Doc. 28), which is currently pending before the Court. In the motion, Defendant argues that his Fourth Amendment rights were violated by the installation and monitoring of a GPS tracking device on a vehicle he borrowed; by the stop and search of that vehicle on February 22, 2018; and by the stop and search of his vehicle on July 13, 2018. He further argues that this Court should suppress all evidence obtained from the searches and statements made to law enforcement after his arrests. Upon consideration of the Defendant’s motion, the Government’s response, and the evidence and testimony adduced at the suppression hearing, the undersigned Magistrate Judge RECOMMENDS that Defendant’s Motion to Suppress be DENIED.
I. FINDINGS OF FACT[1]
A. The First Stop
At the suppression hearing, Investigator Joshua Tye of the Dothan Police Department testified that he began investigating Howard when another investigator, Corporal Crabby, said he had received a tip that Howard may be traveling to Phenix City that day or night to pick up a large amount of methamphetamine. Supp. Hr’g. Tr. (Doc. 42) at 5, 7, 37. Investigator Tye contacted one of his confidential informants to inquire about Howard. Id. at 7. The confidential informant (“CI”) stated that she knew Howard and knew that he sold methamphetamine, and she could contact Howard to find out if he would be making the trip.[2]Id. at 8. She later reported that Howard was in fact going to the Phenix City area to pick up one-and-a-half ounces of methamphetamine and that he wanted to borrow her truck to make the trip. Id. at 8, 38. She then consented to the installation of a GPS tracking device on her vehicle, which Investigator Tye installed that same day after searching the vehicle. Id. at 8–10.
*2 The device allowed Investigator Tye to set parameters for how often it would send him a signal. Id. at 11. If the vehicle was not moving, no signal was sent, but a signal was sent immediately when the vehicle started moving again. Id. The device could be monitored on a web site or from a smartphone. Id. It has an approximate five-second delay in sending information, but otherwise the information is sent in real-time. Id. After the device was installed and the CI left the police station, she contacted Investigator Tye to let him know when Howard took her vehicle, and at that point Investigator Tye began his real-time monitoring of the device. Id. at 11–12. The Court has reviewed the GPS tracking information submitted into evidence at the hearing, and it appears that the device signaled Howard’s location several times per minute while the car was moving. See Def. Ex. 3.
After Howard took possession of the CI’s vehicle, it stopped at a residence on Hilltop Drive, so Investigator Tye and Corporal Crabby went to that location to confirm the vehicle was there. Id. at 12. They saw the vehicle but did not see Howard in the vehicle at that time. Id. at 29. When the vehicle left the Hilltop Drive, it traveled toward the Phenix City area. Id. at 13–14. Investigator Tye and Corporal Crabby did not follow the vehicle, as they could get information from the target source in Phenix City from the GPS tracking information. Id. at 13. The plan was simply to monitor the device until the vehicle was on its way back from Phenix City. Id. at 13.
The tracking information showed that the vehicle traveled on Highway 431 to the Bakerhill area, stayed briefly at a residence, and then continued north on Highway 431 to Seale, Alabama. Id. at 14. Highway 431 is the main highway between Dothan and Phenix City. Id. at 15. The device then “went asleep,” indicating that the vehicle was no longer moving. Id. at 14. Around 1:00 a.m., Investigator Tye decided that Howard must be spending the night in Seale, so he stopped monitoring the device for the night. Id.
The next morning, the vehicle was in the same location. Id. at 14. When Investigator Tye received notification that the vehicle was moving again, it was leaving Seale and traveling to a house on Laurel Avenue in Phenix City, where it stayed for almost an hour before returning to the residence in Seale and then traveling back toward Dothan on Highway 431. Id. at 15.
Knowing that Howard was on his way back to Dothan, Investigator Tye and other officers disbursed to various locations along the anticipated route. Id. at 16. Investigator Tye first saw Howard in Abbeville, but he kept his distance and updated Howard’s location to the other officers, who were able to confirm that Howard was driving the vehicle. Id. In Headland, Howard stopped at a fast food restaurant, went through the drive-through, and pulled into a parking spot. Id. at 16–17. When Howard parked, Investigator Tye decided it was safe to activate emergency lights and sirens. Id. at 17. Investigator Tye got out of his car without having his weapon drawn, approached the driver’s door, and advised Howard to show his hands. Id. at 17, 33. There were seven officers in all, but Investigator Tye does not recall if they had weapons drawn. Id. at 34. After Howard showed his hands, Investigator Tye opened the door and told him to step out. Id. at 17. After Howard exited the vehicle and was handcuffed, Investigator Tye noticed a 9-millimeter handgun in the driver’s door map pocket. Id. at 17–19, 34. Before beginning the investigation of Howard, Investigator Tye had researched Howard’s criminal background and knew he was a convicted felon. Id.at 17–18.
After finding the gun, Investigator Tye searched Howard’s person and found a small bag containing residue that Investigator Tye identified as methamphetamine. Id. at 19, 34. Investigator Tye then passed Howard off to another investigator so he could begin a search of the vehicle. Id.at 19. Officers found a black tactical bag in the bed of the pickup containing three bags of methamphetamine, small unused jewelry bags, 65 rounds of 9-millimeter ammunition, and another handgun with one round in the chamber. Id. at 20–21. None of these items was in the vehicle when Investigator Tye searched it before installing the GPS tracking device. Id. at 21. After searching the vehicle, Investigator Tye called for a transport unit to take Howard to his office. Id. at 23. The truck was returned to the CI and was not taken to the police department for an inventory or impoundment. Id. at 36.
B. The Second Stop
*3 Defendant was stopped again on July 13, 2018, by Corporal Clifton Overstreet of the Dothan Police Department. Id. at 40–41. Corporal Overstreet was three vehicles behind Howard at the intersection of South Park and Fortner Streets in Dothan. Id. at 41, 60. Fortner Street is a two-lane road with a center turn lane at certain spots. Id. Corporal Overstreet testified that Howard’s accelerated from the intersection at a high rate of speed and that he was weaving back and forth within his lane, but the undersigned does not find that testimony to be credible. Id.at 42–44. However, Corporal Overstreet also testified that Howard crossed over a solid yellow line into the beginning of a turn lane for oncoming traffic and that he failed to signal before getting into the turn lane or before getting within 100 feet of making a left turn, and his dash camera video played in court supports this testimony. Id. at 44–45, 47–49, 65. As Howard was making the left turn, Corporal Overstreet activated his lights and initiated a traffic stop.[3] Id. at 45.
II. DISCUSSION
A. The Traffic Stop of July 13, 2018
Before delving into the more complex issues related to the GPS tracking that led to the first stop in this case, the undersigned will address the stop on July 13, 2018. Investigative stops that fall short of arrests—including traffic stops—are governed by Terry v. Ohio and are subject to limited Fourth Amendment scrutiny requiring only a reasonable suspicion of criminal wrongdoing. 392 U.S. 1, 30 (1968); see also Rodriguez v. United States, 135 S. Ct. 1609, 1614 (2015).While such stops are “seizure[s] within the meaning of the Fourth Amendment,” United States v. Purcell, 236 F.3d 1274, 1277 (11th Cir. 2001), they are “constitutional if [they are] either based upon probable cause to believe a traffic violation has occurred or justified by reasonable suspicion as set forth in Terry.” United States v. Harris, 526 F.3d 1334, 1337 (11th Cir. 2008) (per curiam) (citing United States v. Chanthasouxat, 342 F.3d 1271, 1275 (11th Cir. 2003) (emphasis added)). Even a minor traffic violation can constitute the criminal activity required for reasonable suspicion. United States v. Campbell, 912 F.3d 1340, 1349 (11th Cir. 2019) (citation omitted). In this case, the police officer’s dash cam video, which was admitted into evidence at the suppression hearing, shows Howard crossing the solid double line in the center of the road and traveling in the turning lane for oncoming traffic, albeit very briefly. Because even this minor traffic violation alone is sufficient to provide law enforcement with reasonable suspicion to stop a vehicle, and, further, because Defendant conceded that outstanding warrants would have resulted in a lawful arrest and an inevitable inventory search of his vehicle, the undersigned recommends that Howard’s motion to suppress with respect to the stop on July 13, 2018, be denied.
B. The Traffic Stop of February 22, 2018
(1) Installation and Monitoring of the GPS Tracking Device
Defendant argues that he has “standing” to challenge the installation and monitoring of the GPS tracking device on the CI’s vehicle. To answer that question, the Court must essentially determine whether Howard’s Fourth Amendment rights were infringed when law enforcement installed and monitored the GPS tracking device.[4] To determine whether an individual’s Fourth Amendment rights have been infringed by a search or seizure, a court must determine whether the defendant had a “legitimate expectation of privacy in the premises” searched. Byrd v. United States, 138 S. Ct. 1518, 1526 (2018) (citing Rakas v. Illinois, 439 U.S. 128, 143 (1978)). Additionally, recent Fourth Amendment cases have clarified that the legitimate-expectation-of-privacy test, derived from Katz v. United States, 389 U.S. 347 (1967), supplements rather than replaces the property-based concepts of the Fourth Amendment. Id. (citing Florida v. Jardines, 569 U.S. 1, 11 (2013)). The property-based analysis, grounded on principles of common law trespass, was revived with United States v. Jones, 565 U.S. 400 (2012).[5]
*4 In Jones, the Government applied for a warrant authorizing the use of an electronic tracking device on a vehicle registered to the defendant’s wife. Id. at 402–03. The warrant authorized installation of the device within ten days in the District of Columbia; however, the device was installed while the vehicle was in a public parking lot outside the District of Columbia on the eleventh day, making it a warrantless installation of the tracking device. Id. at 403. The Government then monitored the tracking device for 28 days. Id. at 403. Although the defendant’s wife was the owner of the vehicle, there was no dispute that the defendant was the exclusive driver when the tracking device was installed and during the time it was monitored. Id. at 404 n.2. The Government argued that no search occurred because Jones did not have a reasonable expectation of privacy in the underbody of the vehicle (where the device was placed) or its locations on public roads. Id. at 406. However, the Court did not address Jones’s expectations of privacy; instead, because the Government physically occupied privateproperty for the purpose of obtaining information and that physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted, the Court stated that principles of common law trespass applied. Id. at 404. Therefore, the majority held that the Government’s installation of a GPS device on a target’s vehicle and its use of that device to monitor the vehicle’s movements constituted a search. Id. at 404. However, the Court made clear that its trespass analysis would not apply to cases involving transmission of electronic signals without physical contact. Id. at 411 (“Situations involving merely the transmission of signals without trespass would remain subject to Katz analysis....” ) (emphasis in original).
Unlike the defendant in Jones, Howard cannot claim that he had exclusive possession of the vehicle when the GPS tracking device was installed. Moreover, the owner in this case consented to the installation of the tracking device and had possession of the vehicle at the time it was installed. Thus, no trespass (and consequently no search) occurred when the tracking device was installed. Further, for these same reasons, Howard cannot claim that he had a reasonable expectation of privacy in the vehicle when the tracking device was installed. See United States v. Gibson, 708 F.3d 1256, 1277 (11th Cir. 2013) (discussing United States v. Hernandez, 647 F.3d 216, 219–20 (5th Cir. 2011), where the court held that defendant who borrowed brother’s truck lacked standing to challenge installation of tracking device because he had no possessory interest in vehicle when device was installed, but he did have standing to challenge use of device to locate truck on the day he borrowed it.) Thus, because there was no trespass and Howard had no expectation of privacy with respect to the vehicle at the time the device was installed, Howard’s Fourth Amendment rights were not infringed when the GPS tracking device was installed on the vehicle with the owner’s consent.
The next question is whether Howard’s Fourth Amendment rights were infringed when the device was used to monitor the vehicle while he was driving it. In United States v. Miller, 821 F.2d 546 (11th Cir. 1987), the Eleventh Circuit held that a defendant has standing to challenge the search of a car that he borrowed with permission (or, to state it in terms of a substantive violation instead of “standing,” that the defendant had a legitimate expectation of privacy in the borrowed car). Id. at 547. However, in this case, the Government argues that Howard had no reasonable expectation of privacy in his movements on public roads pursuant to United States v. Knotts, 460 U.S. 276 (1983) and that, under United States v. Karo, 468 U.S. 705 (1984), the CI’s consent validated installation of the tracking device on the vehicle, which Howard accepted as it came to him. The Defendant, on the other hand, argues that Jones “flipped Karo” and that Karo cannot be “read in the same light post-Jones.” Doc. 42 at 71.
Justice Scalia wrote the majority opinion in Jones, and he addressed both the Knotts and Karo cases. In Knotts, the Supreme Court upheld a Fourth Amendment challenge to a beeper placed in a container of chloroform (with the owner’s permission) before it was sold to the defendant. Jones, 565 U.S. at 408–09. The defendant in Knottschallenged only the monitoring of the beeper, not its installation. Id. at 408. The Court held that the beeper augmented visual surveillance and did not infringe on Knotts’ “reasonable expectation of privacy since the information obtained – the location of the automobile carrying the container on public roads and the location of the off-loaded container in open fields near Knotts’ cabin – had been voluntary conveyed to the public.” Jones, 565 U.S. at 408–09 (citing Knotts, 460 U.S. at 281–82). Although Justice Scalia stated that Knotts was irrelevant to Jonesbecause Jones involved a trespass (id. at 409), he recognized that the Court “has to date not deviated from the understanding that mere visual observation does not constitute a search. We accordingly held in Knottsthat ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ”[6] Id. at 409, 412 (internal citations omitted) (emphasis added); see also United States v. Woods, No. 17-CR-399, 2019 WL 1353949, at *2–3 (N.D. Ala. Mar. 26, 2019) (recognizing that Jonesplaced limits on but did not abrogate the general rule announced in Knotts).
*5 In examining United States v. Karo, 468 U.S. 705 (1984), Justice Scalia wrote that it “addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure.” Jones, 565 U.S. at 409. As in Knotts, the beeper in Karo was installed on a third party’s container with the owner’s consent before the defendant took possession. Id. at 409. Accordingly, the “specific question [the Karo Court] considered was whether installation ‘with the consent of the original owner constitute[d] a search or seizure ... when the container is delivered to a buyer having no knowledge of the presence of the beeper.’ ” Id. (emphasis in original) (citation omitted). Karo held that it was not, and Justice Scalia said this was “perfectly consistent” with Jones: “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.... Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.” Id. at 409–10.
Thus, Jones did not abrogate the general holding in Knotts and Justice Scalia said the Jones holding was consistent with Karo. Still, several factors in this case provide cause for concern. First, most of the GPS tracking information received by Investigator Tye did not augment visual surveillance by the police. Instead, law enforcement relied solely on the device to track the vehicle after it left for Phenix City, and police did not observe him or the vehicle again until it returned to the Dothan area. Thus, it could be argued that law enforcement went beyond the “mere visual surveillance” sanctioned by Knotts, Karo, and Jones to achieving the same results electronically, the constitutionality of which was expressly left unanswered in Jones. In Justice Sotomayor’s concurrence in Jones, she wrote: “[T]he same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacyexpectations. Under that rubric, I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’ ” Jones, 565 U.S. at 415. Of course, there is no bright line test for what constitutes “longer term” monitoring or what would qualify under “most offenses.” Justice Sotomayor also noted: “In addition, the bugged container in Karolacked the close relationship with the target that a car shares with its owner. The bugged container in Karo was stationary for much of the Government’s surveillance. A car’s movements, by contrast, are its owner’s movements.” Id. at 416 (internal citations omitted). The same is true here: the vehicle’s movements were Howard’s movements, so the GPS tracking in this case was more detailed than the GPS tracking in Karo.
Second, in Carpenter v. United States, 138 S. Ct. 2206, 2215 (2018), decided six years after Jones, the Court held that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through cell site location information (“CSLI”).[7] Carpenter at 2217. In this case, the GPS tracking information received by law enforcement is closer to the CSLI information in Carpenter than the rudimentary beeper information addressed in Karo or Knotts, and the majority in Carpenter recognized that five Justices in Jones agreed that privacy concerns would be raised by GPS cell phone tracking or “surreptitiously activating a stolen vehicle detection system” (which, as in the instant case where the owner gave consent, could be accomplished without a trespass). Carpenter, 138 S. Ct. at 2215 (citations omitted). The Carpenter Court further noted that, because GPS monitoring tracks every move a person makes, the concurring Justices in Jones agreed that “longer term” monitoring would impinge on expectations of privacy “regardless whether those movements were disclosed to the public at large” and that “a majority of this Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” Id. at 2215, 2217 (citing Jones, 565 U.S. at 430 (Alito, J. concurring in judgment) and at 415 (Sotomayor, J., concurring)). “[S]ociety’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s care for a very long period of time.” Id. (quoting Jones, 565 U.S. at 430). Finally, while acknowledging Knotts, the Carpenter majority stated that Knotts had reserved the question of whether different principles would apply if 24-hour surveillance on anyone were possible and that different principles “did indeed apply” in Jones when faced with more sophisticated tracking. Carpenter at 2220 (citing Knotts, 460 U.S. at 283–84 and Jones generally). “[W]hen confronted with more pervasive tracking, five Justices agreed that longer term GPS monitoring of even a vehicle traveling on public streets constitutes a search.” Id. at 2220 (citing Jones, 565 U.S. at 430).
*6 Thus, Carpenter and the concurring opinions in Jones make it clear that GPS tracking can be so pervasive as to constitute a Fourth Amendment search because individuals have a reasonable expectation of privacy in the whole of their physical movements, even when those physical movements are revealed to the public. Further, it is clear that the GPS monitoring used in this case is more like the detailed tracking in Carpenter than the beeper tracking in Knotts or Karo. Despite these concerns and the lack of clear guidance on what constitutes “longer term” monitoring for “most offenses,” the undersigned cannot say that the GPS monitoring in this case rose to the level of Jones or Carpenter. To be sure, the monitoring provided law enforcement with very detailed information about Howard’s movements as a whole when the vehicle was moving, but he was tracked during one “discrete automotive journey” for approximately twenty-four hours, as opposed to twenty-eight days in Jones and four months in Carpenter. Further, as recognized even by Justice Alito in his concurring opinion in Jones, “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” Jones at 430 (Alito, J., concurring) (citation omitted). Here, police tracked Howard in order to confirm that he traveled to Phenix City, as the CI predicted, and then to determine his location when he returned to the Dothan area so they could stop him. For these reasons, the undersigned concludes that the short-term GPS monitoring of Howard’s travel on public roads was not a search that infringed on Howard’s Fourth Amendment rights.
(2) Reasonable Suspicion for the Stop
Having concluded that Howard’s Fourth Amendment rights were not violated by installation or monitoring of the GPS tracker on the vehicle he borrowed from the CI, the undersigned must next address whether those rights were violated when Investigator Tye stopped his vehicle when he returned from Phenix City. As set forth above, traffic stops are governed by Terry and require that an officer have a reasonable suspicion of criminal activity in order to comply with the Fourth Amendment. Additionally, the fact that an officer handcuffs a suspect does not alone cause a Terry stop to become an arrest. United States v. Acosta, 363 F.3d 1141, 1146–47 (11th Cir. 2004); United States v. Hastamorir, 881 F.2d 1551, 1557 (11th Cir. 1989) (finding that handcuffing the defendant constituted a Terry stop and was reasonable to provide for safety of agents); United States v. Kapperman, 764 F.2d 786, 790 n.4 (1985) (explaining that handcuffing or restraining a detainee does not automatically convert a Terry stop into an arrest and that police may take reasonable action to protect themselves).
With respect to confidential informants, the Supreme Court has adopted a “totality of circumstances” approach to determine if a tip establishes probable cause. Alabama v. White, 496 U.S. 325, 328 (1990) (citing Illinois v. Gates, 462 U.S. 213 (1983)). The factors used in analyzing the totality of circumstances are also relevant in the reasonable suspicion context, although allowance must be made for the lesser standard of reasonable suspicion. Id. at 328. Reasonable suspicion is a less demanding standard than probable cause; it can be established with information that is different in quantity and content and can arise from information that is less reliable than what is required for probable cause. Id. at 330.
The factors a court examines in reviewing a confidential source’s statements include corroboration of the details of the tip through independent police work; whether the informant has made a statement against his penal interests; whether the informant had personal knowledge; whether there is a past history between the informant and the police department that supports his reliability; and whether the police took independent steps to investigate the tip. United States v. Rojas-Coyotl, No. 1:13-CR-0128-AT-AJB, 2014 WL 1908674, at *7 (N.D. Ga. May 13, 2014) (citing Ortega v. Christian, 85 F.3d 1521, 1525 (11th Cir. 1996)). No one factor is determinative, and the credibility determination is made by weighing each factor after applying the facts of the case. United States v. Ohoro, 724 F. Supp. 2d 1191, 1202–03 (M.D. Ala. 2010) (citing Illinois v. Gates, 462 U.S. 213, 233 (1983)).
In White, supra, police received an anonymous telephone tip that the defendant would be leaving an apartment complex at a particular time in a brown Plymouth station wagon with the right taillight lens broken, that she would be going to Dobey’s Motel, and that she would have one ounce of cocaine in a brown attache case. 496 U.S. at 327. Two officers went to the apartment complex, watched her leave in the described vehicle with nothing in her hands, and followed her as she drove toward the motel. Id. Police stopped her just before she reached the hotel and told her that she had been stopped on suspicion of carrying cocaine. Id.When the defendant consented to a search, they found marijuana in a brown attache in her vehicle and then found cocaine during processing at the police station. Id. The Court concluded that the tip to police officers provided reasonable suspicion because, even though the tip was anonymous and officers did not verify every detail of the tip, they did verify that the defendant left a particular building in the vehicle described by the caller. Id. at 331–32. The caller correctly predicted the time and direction the defendant would be traveling, which police were able to confirm shortly after the call. Id. The Court also stated that, when an informant is right about some things, he is probably right about other facts, so being able to corroborate some of the predictions imparted reliability to the other allegations. Id. at 332.
*7 In the instant case, the CI was not anonymous, making her inherently more reliable than an anonymous CI in that she would undoubtedly face negative repercussions if she lied. As in White, the CI predicted the approximate time Howard would be leaving, the vehicle he would be driving, and his destination. These are details not normally known to someone without personal knowledge, and the fact that Howard was borrowing the CI’s own vehicle further supports that she had personal information about the purpose of his trip. Without the CI’s personal knowledge, the police could not have predicted that Howard would make a trip to Phenix City on the day in question. Additionally, police were able to investigate the tip and independently corroborate that Howard was driving the CI’s vehicle to Phenix City through the use of GPS surveillance and visual surveillance once Howard returned to town. Accordingly, the undersigned finds that law enforcement had a reasonable suspicion of criminal activity, and Howard’s Fourth Amendment rights were not violated when he was stopped. See Riley v. City of Montgomery, 104 F.3d 1247 (11th Cir. 1997) (finding that reasonable suspicion was established by anonymous tip describing defendant’s physical appearance and identifying the location and vehicle of defendant, including the license plate); United States v. Woods, 385 Fed. App’x 914 (11th Cir. 2010) (holding that officers had reasonable suspicion to stop defendant after confidential informant called police and advised that defendant would be carrying illegal drugs and driving a particular vehicle in the Georgia Dome area around noon); United States v. Sakapala, 2019 WL 1398902, at *3 (N.D. Ga. Mar. 28, 2019) (concluding that law enforcement had reasonable suspicion when anonymous informant’s tip advised that defendant would travel from California to Atlanta, that he had a warehouse on Patterson Avenue, and that he would send two trucks); United States v. Baptiste, 388 Fed. App’x 876, 880 (11th Cir. 2010) (per curiam) (finding a tip about drug delivery sufficiently reliable even though the truck was a different color than predicted).
(3) Probable Cause to Search the Vehicle
Finally, the undersigned addresses whether law enforcement had probable cause to search the vehicle Howard was driving. Ordinarily, a warrant based on probable cause must issue prior to a search taking place; however, there is an exception for automobiles. Maryland v. Dyson, 527 U.S. 465, 466 (1999). Under the automobile exception, an officer is permitted to conduct a warrantless search of a vehicle when “(1) there is probable cause to believe the vehicle contains contraband or other evidence which is subject to seizure under the law, and (2) exigent circumstances necessitate a search or seizure.” United States v. Talley, 108 F.3d 277, 281 (11th Cir. 1997). Probable cause exists when there is “a fair probability that contraband or evidence of a crime will be found.” United States v. Sokolow, 490 U.S. 1, 7 (1989). “While probable cause requires only a probability or substantial chance of criminal activity, mere suspicion is not enough.” United States v. Allison, 953 F.2d 1346, 1350 (11th Cir. 1992). A separate showing of exigency is not required when a vehicle is readily movable. Dyson, 527 U.S. at 467.
In this case, after Howard exited the car was handcuffed, Investigator Tye saw a gun in the map pocket of the driver’s door. Because Investigator Tye knew Howard was a convicted felon, the gun was clear evidence of a crime and was sufficient to establish probable cause for a search of the vehicle under the automobile exception. Furthermore, under Terry, an officer may frisk or pat-down an individual in order to conduct a limited search for weapons when the officer has reason to believe that the individual is armed and dangerous. United States v. Salter, 255 Fed. App’x 355 (11th Cir. 2007) (citing Terry, 392 U.S. at 27). Seeing a gun in the driver’s door certainly gave Investigator Tye reason to believe that Howard was armed and dangerous and that he may have had additional weapons. Thus, the pat-down of Howard was justified under Terry, and the small bag with drug residue found during the pat-down further established probable cause to search the vehicle under the automobile exception. Therefore, the undersigned finds that Howard’s Fourth Amendment rights were not violated when he was stopped and his vehicle searched on February 22, 2018.[8]
III. CONCLUSION
*8 For all of the foregoing reasons, the undersigned concludes that the installation and monitoring of the GPS tracking device in this case did not constitute a search under the Fourth Amendment. Further, police had a reasonable suspicion to stop Howard in both instances described above, and the firearm and bag containing drug residue provided probable cause to search the vehicle under the automobile exception on February 22, 2018. Accordingly, the undersigned RECOMMENDS that Defendant’s Motion to Suppress be DENIED.
It is further ORDERED that the parties are DIRECTED to file any objections to this Recommendation on or before September 9, 2019.Any objections filed must specifically identify the findings in the Magistrate Judge’s Recommendation to which the party is objecting. Frivolous, conclusive, or general objections will not be considered by the District Court. The Plaintiff is advised that this Recommendation is not a final order of the court and, therefore, it is not appealable.
Failure to file a written objection to the proposed findings and recommendations in the Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of factual findings and legal issues covered in the report and shall “waive the right to challenge on appeal the District Court’s order based on unobjected-to factual and legal conclusions” except upon grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993) (“When the magistrate provides such notice and a party still fails to object to the findings of fact and those findings are adopted by the district court the party may not challenge them on appeal in the absence of plain error or manifest injustice.”); Henley v. Johnson, 885 F.2d 790, 794 (11th Cir. 1989).
DONE this 26th day of August, 2019.
Footnotes
The court reaches findings of fact at a suppression hearing based on a preponderance of the evidence. United States v. Beechum, 582 F.2d 898, 913 n.16 (5th Cir. 1978) (citing Lego v. Twomey, 404 U.S. 477, 489 (1972)).
This occurred on February 21, 2018, and at that point Tye had been working with the CI for only one day. Id. at 5, 25. She had been arrested and found to be in possession of methamphetamine the day before when police had received a similar tip about her. Id. at 6, 25. After her arrest, she agreed to provide information leading to four trafficking cases. Id. at 6.
This traffic stop resulted in a search of Howard’s vehicle in which police found a bag with four pills, methamphetamine, a digital scale, shotgun shells, .38-caliber shells, and a Rossi .38-caliber firearm with some of the serial numbers rubbed off. Doc. 42 at 57–58. At the suppression hearing, Defendant’s attorney conceded that Howard had outstanding warrants at the time of the stop that would have resulted in his arrest and an inventory search of the vehicle regardless of whether probable cause otherwise existed. Id. at 68. Thus, the only issue for the Court to determine with respect to this stop is whether the officer had reasonable suspicion to justify the stop. Id.Accordingly, this Recommendation sets forth only those facts bearing on the officer’s reasonable suspicion to initiate the stop and does not set forth the facts relating to probable cause to search the vehicle.
The Supreme Court has instructed that Fourth Amendment challenges are “more properly placed within the purview of substantive Fourth Amendment law than within that of standing.” United States v. Chaves, 169 F.3d 687, 690 (11th Cir. 1999) (quoting Minnesota v. Carter, 525 U.S. 83 (1998) (quoting Rakas v. Illinois, 439 U.S. 128, 139–40, (1978)) (“Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.... [This requires a] determination of whether the disputed search and seizure has infringed an interest of the defendant which the Fourth Amendment was designed to protect.”). Nonetheless, the Eleventh Circuit continues to analyze Fourth Amendment challenges under the concept of standing. See, e.g., United States v. Gibson, 708 F.3d 1256 (11th Cir. 2013) (concluding that defendant lacked standing to complain about tracking device when he was neither in possession nor a passenger in a vehicle) (citing United States v. Miller, 821 F.2d 546 (11th Cir. 1987) for the proposition that defendant had standing to challenge search of car borrowed from friend); United States v. Guerrero-Torres, 762 Fed. App’x 873 (11th Cir. 2019) (finding that defendant lacked standing to contest a search in the absence of a subjective expectation of privacy); United States v. Rodriguez, 762 Fed. App’x 712, 715 (11th Cir. 2019); (holding that defendant lacked standing to challenge search of codefendant’s home because he lacked legitimate expectation of privacy); United States v. Dixon, 901 F.3d 1322 (11th Cir. 2018) (finding that defendant lacked standing to challenge search of girlfriend’s car because he was a passenger with no possessory interest); and United States v. Campbell, 434 Fed. App’x 805, 809 (11th Cir. 2011) (concluding that defendants lacked standing to challenge search of package).
The Jones Court noted that Katz’s reasonable-expectation-of-privacy test includes both property law concepts and understandings permitted by society. Jones, 565 U.S. at 408 (citing Minnesota v. Carter, 525 U.S. 83, 88 (1998)). In other words, Katz did not “erode” the principle that a physical intrusion by government may constitute a Fourth Amendment violation. Id. at 407; see also United States v. Figueroa-Cruz, 914 F. Supp. 2d 1250, 1260 (N.D. Ala. Dec. 11, 2012) (“In rediscovering the trespassory origins of the Fourth Amendment the Jones majority observed that the more recently adopted ‘reasonable-expectation-of-privacy test has been added to, not substituted for, the common law-trespassory test.’ ”).
The opinion in Jones, at least as it relates to approval of Knotts, does not provide a clear path for analyzing all searches involving monitoring of GPS tracking devices. Although the Jones majority approved of Knotts with regard to “mere visual surveillance” and travel on public roads, it stated that Knotts had noted the “limited use which the government made of the signals from this particular beeper” and reserved the question of whether “different constitutional principles might be applicable” to “dragnet-type law enforcement practices” made possible by GPS tracking. Jones, 565 U.S. at 431 n.6. The court went on to state that, although visual surveillance of Jones for the same time period would be constitutionally permitted, Jones does not answer the question of whether obtaining the same results electronically is constitutional (“It may be that achieving the same results through electronic means without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.”). Id. at 412.
Carpenter addressed (1) the expectation of privacy in physical location and movements and (2) the expectation of privacy in information voluntarily disclosed to a third party. 138 S. Ct. 2215–16. The discussion of the former issue is instructive in this case because, althoughCarpenter involved CSLI, the Court recognized the similarities between GPS tracking and CSLI: “Such tracking partakes of many of the qualities of the GPS monitoring we considered in Jones. Much like GPS tracking of a vehicle, cell phone location information is detailed, encyclopedic, and effortlessly compiled.” Id. at 2216.
Howard argued in his Motion to Suppress, before the evidentiary hearing and before the Government made known the basis of the search in question, that searching the bed of the truck violated his Fourth Amendment rights pursuant to Arizona v. Gant, 556 U.S. 332, 351 (2009), which authorizes a search incident to a recent arrest only if the arrestee is within reaching distance of the passenger compartment or it is reasonable to believe the vehicle contains evidence of the offense of arrest. However, the search in this case was proper under the automobile exception, not as a search incident to arrest. As a result, because officers had probable cause to believe the truck, which was readily movable, contained contraband or other evidence of a crime, a search of the bed of the truck was proper. See, e.g., United States v. Stotler, 591 F.3d 935, 940 (7th Cir. 2010) (finding that search of truck cab and bed was authorized under automobile exception because probable cause existed) and United States v. Dooley, No. 09-CR-00016, 2011 WL 2162687, at *3 (N.D. Ga. June 2, 2011) (finding that search of truck’s bed was lawful under automobile exception); see also Gant, 556 U.S. at 347 (stating that law enforcement may search any area of a vehicle where evidence may be found if there is probable cause to believe vehicle contains evidence of criminal activity) (citing United States v. Ross, 456 U.S. 798, 820–21 (1982)).