U.S. v. Jackson
U.S. v. Jackson
2022 WL 1498191 (M.D. Ala. 2022)
March 15, 2022

Doyle, Stephen M.,  United States Magistrate Judge

GPS
Search and Seizure
Privacy
Criminal
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Summary
The court found that the police did not need a warrant to use the car dealer's GPS location system to find the Town Car. The police only used the GPS data to find the Lincoln so they could arrest Jackson, and the only information on the GPS printout that police used was the last address where the Lincoln was parked. The court found that the short-term data obtained did not show a comprehensive record of Jackson's public movements, and the police only used essentially real-time data to find a wanted car.
UNITED STATES OF AMERICA
v.
LAKEYLEA ANDREA JACKSON, JR
CASE NO. 2:21-CR-331-MHT-SMD
United States District Court, M.D. Alabama, Northern Division
Filed March 15, 2022

Counsel

Brandon Wade Bates, Eric M. Counts, Gregory Oswald Griffin, Jr., Assistant U.S. Attorney, United States Attorney's Office, Montgomery, AL, for United States of America.
Federal Defender, Public Defender, Stephen P. Ganter, Sandi Yoshiko Irwin, Federal Defenders, Montgomery, AL, George B. Bulls, II, George B. Bulls, II, PC, Tuskegee, AL, for Lakeylea Andrea Jackson, Jr.
Doyle, Stephen M., United States Magistrate Judge

REVISED RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION
*1 This motion presents the issue of whether police must first obtain a warrant before utilizing GPS tracking information provided by a car dealer to locate a vehicle. Under the facts here, the answer is no. Defendant, Lakeylea Andre Jackson, Jr. (“Jackson”), is charged with three Hobbs Act robberies in violation of 18 U.S.C. § 1951(a), three counts of brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii), and possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). Indictment (Doc. 1). The charges all stem from a string of armed robberies of Dollar Tree and Family Dollar stores in Montgomery, Alabama, that occurred in December 2019. Police spotted a suspicious car near one of the robberies and utilized GPS location information provided by a car dealer without a warrant to find the vehicle. It was parked behind a row of townhouses. They set up surveillance on the vehicle, saw Jackson leave one of the townhouses and enter the car, and arrested him after a brief chase and foot pursuit. Police later obtained a state warrant to search the townhouse and car. Jackson now argues that all physical and testimonial evidence obtained by police through use of the GPS location data should be suppressed. Mot. (Doc. 28) at 2. Undersigned held an evidentiary hearing on February 14, 2022, and for the reasons that follow, RECOMMENDS that Jackson's motion to suppress be DENIED in its entirety.
 
II. FINDINGS OF FACT
The Family Dollar located at 1162 South Decatur Street in Montgomery, Alabama, was robbed at gunpoint on the night of December 20, 2019. Det. Goodwin Affidavit, Def's Ex. 8 at 2. The cashier told police that a tall Black male wearing a black hooded sweatshirt, black jeans, black shoes, and white socks with a black mask over his face had forced his way into the store as she was letting a customer out. Id. The man pointed a gun at her and demanded money from the safe and register. Id. She handed him $476 in cash, and he exited through the front door and headed south. Id.
 
Before the robbery was reported over the radio, officers on patrol in the area saw a tall Black male dressed in all black walking from behind the Family Dollar toward the Paterson Court public housing complex. Id. When they received the dispatch call with the suspect's description, the officers pulled into Paterson Court, exited their vehicle, and began walking through the complex looking for the man. Id. As they did so, they saw a silver or cream colored Lincoln Town Car with oversize aftermarket rims backing out of the apartment complex at a high rate of speed. Id. The man they saw walking from behind the Family Dollar was driving. Id. They attempted to stop the vehicle, but it drove away. Id. The officers saw that the license plate contained “1J,” but they did not get the full plate. Id.
 
The officers called in the vehicle description and partial tag, and police ran it through their license plate reader (LPR) system. Id. The LPR captures photos of every vehicle that passes it on the street and maintains them in a searchable database. Tr. 37-38. Entering the partial plate and vehicle description in the LPR produced a photo of a Lincoln Town Car with large chrome rims that matched the officers' description. Photo, Def's Ex. 2. The photo showed a white dealer decal at the top of the Town Car's rear windshield from Riteway Auto Sales, a used car dealer with lots in Munford and Anniston, Alabama. Id. Police looked up the dealership's website, and it showed pictures of the Town Car in the dealer's inventory listing it as recently sold. Screenshot Dealer's Website, Def's Ex. 1.
 
*2 Police called the dealership when it opened the next morning to find out who bought the car, and the dealership volunteered that they had a GPS tracker in the vehicle to aid in repossession. Det. Goodwin Affidavit, Def's Ex. 8 at 3. They offered to provide the location of the vehicle and explained that their GPS tracker system only showed the location of the vehicle when it was shut off and presumably parked and when it was started. Tr. 41-42. It did not show the movements of the vehicle. Id. Police requested the information, and the dealer sent a screenshot of a computer screen showing eight addresses where the Town Car was shut down between 9:22 p.m. on December 20, 2020 and 3:40 a.m. on December 21, 2020. GPS Tracker Screenshot, Def's Ex. 4. The most recent address on the screenshot was 5565-5567 Carriage Brook Road in Montgomery where the car had been stopped since 3:40 a.m. Id.
 
Police responded to that address at approximately 10:00 a.m. and saw the Lincoln parked behind a row of townhouses. Det. Goodwin Affidavit, Def's Ex. 8 at 3; Tr. 22-24. They set up surveillance from a church parking lot across the street and watched the vehicle. Id. Police saw a tall Black man wearing black clothing exit the townhouse located at 5565 Carriage Brook, enter the Lincoln, and drive away. Det. Goodwin Affidavit , Def's Ex. 8 at 3. They attempted to stop the car, but the driver fled and eventually jumped out of the vehicle. Id. After a brief foot pursuit, he was arrested and identified as defendant Jackson. Id. Police subsequently obtained a state search warrant to search the townhouse and car. Warrant, Def. Ex. 8.
 
III. LEGAL STANDARD
A. United States v. Jones, 556 U.S. 400 (2012).
Police use of location data from a dealer or manufacturer-installed GPS transmitter is governed by the Katz[1] reasonable-expectation-of-privacy test. The Supreme Court considered police use of GPS trackers in United States v. Jones, 556 U.S. 400, 404-413 (2012). In Jones, the FBI obtained a warrant to install a GPS tracker in a suspected drug dealer's Jeep Grand Cherokee. Id. at 402. The warrant authorized installation of the tracker in Washington, DC, within the next 10 days. Id. at 403. In violation of the warrant's restrictions, the FBI installed a GPS transmitter on the Jeep's undercarriage when it was parked in Maryland eleven days after the warrant issued. Id. The FBI then used the GPS transmitter to track the Jeep for 28 days generating over 2,000 pages of location data. Id. The Government ultimately introduced the GPS location data at trial to connect the suspect with a stash house that contained a large quantity of cash and drugs, and he was convicted on drug conspiracy charges. Id. at 403-404. The D.C. Circuit reversed finding that the warrantless use of the GPS tracker violated the Fourth Amendment. Id. at 404.
 
The Supreme Court granted certiorari and unanimously affirmed. However, the Court essentially split evenly on the grounds. Justice Scalia wrote the five-justice majority opinion. He reasoned that the FBI committed a trespass on private property when they surreptitiously installed the transmitter on the Jeep. Id. at 404-405. Under a pre-Katz property-based understanding of the Fourth Amendment, any physical intrusion by the Government on a protected area to obtain information is a search requiring a warrant or an exception to the warrant requirement. Id. Therefore, “the Government's installation of a GPS device on a target vehicle, and its use of that device to monitor the vehicle's movements” is a search under the Fourth Amendment. Id. at 404. The majority explained that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test,” and “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” Id. at 409, 411 (emphasis original).
 
*3 Justice Alito wrote a concurring opinion joined by three other justices. Id. at 418-431. He argued that the trespass test was less than helpful when analyzing modern electronic surveillance methods and that the Katz expectation-of-privacy test should always control. Id. at 426-428. Under this approach, the proper question is “whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Id. at 430. He concluded that “relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable[,]” while longer-term GPS monitoring does not. Id. at 430. The point at which GPS monitoring becomes a search was not precisely defined, but it was something short of four weeks. Id.
 
Justice Sotomayor joined the majority but wrote a separate concurrence endorsing both approaches. She agreed that a search occurred when the Government “usurped [defendant's] property for the purpose of conducting surveillance on him[.]” Id. at 413. She also endorsed Justice Alito's position and emphasized that “GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 415. She framed the Katz issue as “whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Id. at 417. The Supreme Court later explained that although Jones was decided on a trespass theory, a majority of the Court “recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements.” Carpenter v. United States, 138 S.Ct. 2206, 2217 (2018) (holding that an individual carrying a cell phone maintains a legitimate expectation of privacy in the record of his physical movements captured through cell site location information).
 
B. Lower Court Rulings
At least two district courts have applied Jones in cases where police used information from dealer or manufacturer-installed GPS transmitters. In United States v. Williams, 2015 WL 4484060 (W.D. Ky July 22, 2015) (unpublished), police had an arrest warrant for a man who shot his wife and then drove off in her recently-purchased car. 2015 WL 4484060 at *3. Police learned that the vehicle had a dealer-installed GPS tracking device, and they asked the dealership to provide the vehicle's location. Id. The GPS showed that the vehicle was parked at an extended stay hotel. Id. Police went to the hotel and found the car in the parking lot. Id. They then went door-to-door in the hotel until they located the defendant and arrested him. Id. They subsequently obtained a warrant to search the hotel room and found a handgun. Id. The defendant moved to suppress, arguing that the dealership's use of the GPS transmitter at the Government's request was an illegal search, and the subsequent search of the hotel room was fruit of the poisonous tree. Id.
 
The court held, inter alia, that police use of dealer-supplied GPS location information to find a vehicle was not a search within the meaning of the Fourth Amendment. Id. at *6. The magistrate judge's recommendation that the court adopted reasoned that neither of Jones' two prerequisites for a search were satisfied. First, there was no Government trespass because the transmitter was already preinstalled by the dealer when it sold the car. Id. Second, the device was not used to monitor the vehicle's movements. Id. Rather, the GPS data was only used to locate the car in order to find the defendant and effect an arrest. Id. The GPS was not used to track the defendant's activities in an effort to gather incriminating information. Id. The district judge emphasized that in the absence of a physical trespass, the Katz reasonable expectation of privacy test would control, and under United States v. Knotts, 460 U.S. 276, 281 (1983), a person travelling in a car on public streets has no reasonable expectation of privacy in his movements. Id. at *2. The court concluded that “[t]he activation by a car dealership upon request of the Government of a pre-installed GPS tracking device to locate a missing vehicle for the limited purpose of executing a valid arrest warrant did not constitute an unreasonable search.” Id.
 
*4 United States v. Diggs, 385 F. Supp. 3d 648 (N.D. Ill. 2019) presents a very different set of facts leading to a different result. In Diggs, police identified the make, model, and license plate number of the getaway car used in a jewelry store heist. Id. at 649-650. Responding to an alert seeking information on the vehicle, the selling dealership told the police that it was equipped with a GPS tracking device monitored by a third-party service: Air Assault Asset Track GPS Systems. Id. at 650. The dealership provided police with their login credentials to Air Assault's website and authorized them to access all GPS records associated with the car. Id.
 
Police logged into the website and downloaded a spreadsheet with over a month's worth of GPS data. The spreadsheet gave time-stamped historical information showing the car's approximate location by street address each time it was turned on, every five minutes while it was moving, and when it was parked. Id. They could also use a software program built into the website to gain even greater detail concerning the vehicle's historical location. Id. Using Air Assault's website, police determined that the car was driven to the city where the jewelry store was located on the day of the robbery, on the same block as the jewelry store at the time of the robbery, and in the alleyway directly behind the store during the robbery. Id. The data also showed the car being driven to and from the various co-defendants' addresses in the days immediately prior to the robbery. Id.
 
In a thorough and thoughtful opinion, the Diggs Court granted the defendant's motion to suppress. Id. at 661. The court held that the GPS data police obtained from Air Assault's website “fits squarely within the reasonable expectation of privacy identified by the Jones concurrences and reaffirmed in Carpenter.” Id. at 652. The court explained that the GPS data provided a precise and comprehensive record of the car's public movements over the course of a month. Id. Although the defendant ultimately abandoned the vehicle, “his reasonable expectation of privacy in the GPS data arises from the story that data tells about his movements over the course of a month, not from any expectation of privacy” in the car itself. Id. at 654. The court concluded that “the government's warrantless acquisition of historical GPS data revealing [defendant's] movements over the course of more than a month was a search” that violated the Fourth Amendment. Id. at 655.
 
IV. ANALYSIS
Jackson argues that police needed a warrant before using the car dealer's GPS location system to find the Town Car. Mot. (Doc. 28) at 2-3. This argument overstates the Fourth Amendment limitations on police use of third-party GPS data. As explained above, police use of data from a dealer or manufacturer-installed GPS transmitter is governed by the Katz reasonable-expectation-of-privacy test. Jones, 565 U.S. at 411. Here, police obtained GPS location data on the Town Car for a little over six hours: from 9:22 p.m. on December 20, 2020, until 3:40 a.m. on Dec. 21. Def. Ex. 4. This is exactly the type of “short-term monitoring of a person's movements on public streets [that] accords with expectations of privacy that our society has recognized as reasonable.” Jones, 565 U.S. at 430 (Alito, J., concurring). The short-term data obtained here did not show “a precise, comprehensive record of [Jackson's] public movements that reflects a wealth of details about [his] familial, political, professional, religious, and sexual associations.” Id. at 415 (Sotomayor, J., concurring). It only showed where the Lincoln was parked over the course of one night.
 
*5 Moreover, the police only used the GPS data to find the Lincoln so they could arrest Jackson. The only information on the GPS printout that police used was the last address where the Lincoln was parked at 5565-5567 Carriage Brook Road.[2] Def. Ex. 4. This was an imprecise address covering three townhouses. This information was no different than a traditional tip from a witness that the Lincoln was parked in the vicinity of that address. The police did not aggregate historical GPS data to tell a detailed story about Jackson's movements over a period of time to link him to the rash of dollar store robberies. Rather, they used essentially real-time data to find a wanted car. This is a critical distinction that fundamentally distinguishes this case from Jones and Diggs.
 
The facts here are virtually identical to those presented in Williams, 2015 WL 4484060, where police used a dealership's GPS data to find a car linked to the defendant in the parking lot of an extended stay hotel and then went door-to-door in the hotel to locate and arrest him. Id. at *3. Here, police found the parked Lincoln, watched it from a public location, and arrested Jackson when he drove away. Undersigned agrees with the holding in Williams that police use of a pre-installed third-party GPS tracking system to locate a wanted vehicle for the purpose of making an arrest is not an unreasonable search under the Fourth Amendment. Id. at *6. See also United States v. Martin, 712 F.3d 1080, 1082 (7th Cir. 2013) (applying attenuation doctrine to deny suppression when warrantless Government-installed GPS tracker used to locate defendant and effect an arrest).
 
V. CONCLUSION
For the reasons stated above, it is the RECOMMENDATION of the Magistrate Judge that Jackson's motions to suppress (Doc. 28) be DENIED. It is further
 
ORDERED that the parties shall file any objections to this Recommendation on or before March 21, 2022.[3] A party must specifically identify the factual findings and legal conclusions in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge's findings and recommendations in accordance with the provisions of 28 U.S.C. § 636(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright, 677 F.2d 404 (5th Cir. 1982); 11TH CIR. R. 3-1. See Stein v. Lanning Securities, Inc., 667 F.2d 33 (11th Cir. 1982). See also Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc).
 
*6 DONE this 15th day of March, 2022.

Footnotes
Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan J. concurrence explaining that the Fourth Amendment protects against violations of a person's “reasonable expectation of privacy”).
Jackson seemed to suggest during his examination of the witness at the hearing that the parking lot behind the townhouses was not a public area. Tr. 21-24. However, it is undisputed that police were able to observe the Town Car from a nearby church parking lot. Tr. 23. In any event, this argument was not developed in the briefs or at oral argument and is deemed abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014).
Due to the current timing of trial, Undersigned has shortened the usual period for filing objections. See Sabal Trail Transmission, LLC. v. 7.72 Acres in Lee Cnty., Ala., 2016 WL 10789585, at *1 (M.D. Ala. 2016) (“where exigencies exist, a court may shorten the time for filing objections.”); Securities and Exchange Commission v. Lauer, 2016 WL 3225306, at *2 (S.D. Fla. Mar. 3, 2016) (shortening the usual fourteen day objection period due to concerns about the fiscal quarter end); United States v. Williams, 2016 WL 304320 (M.D. Ala. Jan. 22, 2016) (Mendoza, J.) (noting that the magistrate judge ordered that due to exigent circumstances, the objections period was shortened to two days and adopting the report and recommendation).