United States v. Dennis Calvin Bush, Jr.
2013 U.S. App. LEXIS 17906
| 11th Cir. | 2013Background
- Law enforcement surveilled 2904 Cocoa Court after investigating known dealer Daniel Marlow; observations included frequent short visits by persons with narcotics histories and a suspected hand-to-hand transaction.
- Investigators conducted a K-9 ‘‘free air’’ sniff at the front door (positive alert) and placed a magnetic GPS tracker on a rented Ford truck parked in the driveway; the tracker showed trips to Cordele and Tifton, Georgia.
- Officers recovered trash from the residence containing multiple small baggies that tested positive for cocaine and items with Stadmire’s name and the residence address.
- A search warrant for 2904 Cocoa Court was obtained; search yielded cocaine, drug packaging and paraphernalia, cash, and firearms; Bush was found inside and indicted on drug and firearm charges.
- Bush moved to suppress evidence, arguing the warrant relied on information from unconstitutional searches (GPS and dog sniff). The district court denied suppression, finding independent-source sufficiency and good-faith precedent.
- After trial the court gave an Allen charge during deliberations; the jury returned guilty verdicts. Bush appealed denial of suppression and the Allen charge; the Eleventh Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of evidence obtained via search warrant when investigators used a GPS tracker and a K-9 sniff | Bush: Warrantless placement/monitoring of GPS and the dog sniff were Fourth Amendment searches; evidence derived from them should be excluded as fruit of the poisonous tree | Government: Even if violations occurred, the independent-source doctrine and good-faith precedent validated admission; untainted facts in affidavit established probable cause | Court: Affirmed—excising GPS/dog-sniff info, remaining affidavit supported probable cause; independent-source doctrine permits admission |
| Whether investigators’ trash pull was prompted by GPS information (fruit-of-the-poisonous-tree claim) | Bush: Trash pull resulted from GPS-derived information and thus must be excluded | Government: Investigator testified trash pull was independent (opportunity, timing), and district court credited that testimony | Court: Credited investigator’s testimony; no clear error—trash pull not shown to be fruit of illegal search |
| Whether good-faith reliance on precedent justified warrant-related conduct (GPS) | Bush: Good-faith exception not applicable because attachment/monitoring violated Jones | Government: Officers relied on then-binding Eleventh Circuit/Fifth Circuit precedent (Michael) when placing device | Court: Did not decide Jones applicability; noted good-faith issue but relied on independent-source holding (also observed Michael supported officers’ beliefs) |
| Use and timing of Allen charge during deliberations | Bush: Charge was premature (after ~4 hours) and coercive given circumstances (juror childcare call, request to go home, no dinner) | Government: Jury showed signs of being deadlocked on Count 3; Allen charge was appropriate to encourage further deliberation | Court: No abuse of discretion—Allen charge not inherently coercive and timing was within court’s discretion; convictions affirmed |
Key Cases Cited
- United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (upheld warrantless attachment of an exterior tracking device based on investigative suspicion)
- United States v. Noriega, 676 F.3d 1252 (11th Cir. 2012) (explains two-step independent-source doctrine for excising tainted information and assessing whether warrant was prompted by illegality)
- Allen v. United States, 164 U.S. 492 (1896) (establishes the Allen instruction encouraging deadlocked juries to continue deliberating)
- United States v. Woodard, 531 F.3d 1352 (11th Cir. 2008) (approves Eleventh Circuit pattern Allen instruction and sets review standard)
- United States v. Bautista-Silva, 567 F.3d 1266 (11th Cir. 2009) (credibility/factual findings at suppression hearings reviewed for clear error)
- United States v. Scruggs, 583 F.2d 238 (5th Cir. 1978) (upheld Allen charge given late in deliberations; timing discretion of trial court)
- United States v. Jones, 565 U.S. 400 (2012) (holding that attaching a GPS tracker to a vehicle is a search under the Fourth Amendment)