United States v. Erick D. Smith, 741 F.3d 1211

Background

Law enforcement suspected Erick Smith led a cocaine distribution operation between Foley, AL and Pensacola, FL; cooperating witnesses and a co-defendant implicated Smith and identified vehicles he used.
Officers obtained vehicle and property records showing cash purchases of vehicles and no tax returns, and then installed GPS trackers on two of Smith’s vehicles in January 2011 without warrants; tracking produced location data linking Smith to alleged stash-house sites.
In April 2011 agents obtained a warrant to search Smith’s residence; the warrant affidavit relied in part on GPS-derived location data; the search yielded cash, a handgun, phones/computer media, and other evidence introduced at trial.
Smith was indicted on drug conspiracy, firearm, felon-in-possession, and money-laundering counts; he moved to suppress the search evidence (initially not challenging GPS), lost, and was convicted on conspiracy and felon-in-possession counts; sentenced to 420 months.
On appeal Smith argued Jones (decided after trial) renders the earlier warrantless GPS surveillance unconstitutional and the fruits of that surveillance should be suppressed; he also challenged admission of prior convictions, denial of severance, consideration of acquitted conduct at sentencing, and an as-applied Sixth Amendment claim.

Issues

Issue	Smith's Argument	Government's Argument	Held
Admissibility of evidence seized pursuant to warrant that relied partly on warrantless GPS tracking	Warrantless GPS installation/search violated Fourth Amendment under Jones; evidence is fruit of poisonous tree and must be suppressed	Officers reasonably relied on then-binding Eleventh Circuit precedent (Michael); exclusionary rule’s good-faith exception applies per Davis	Court held GPS installation became a "search" under Jones but officers objectively relied on binding precedent (Michael); Davis good-faith exception bars suppression; suppression denied
Whether warrantless GPS tracking was authorized by precedent	Michael and Knotts did not govern GPS; GPS is qualitatively different and requires a warrant	Michael (en banc Fifth Circuit, adopted by Eleventh Circuit via Bonner) treated beepers/electronic trackers permissibly on reasonable suspicion; Knotts held no expectation of privacy in movements on public roads	Court rejected Smith’s distinction; Michael unambiguously authorized installation on these facts; Michael + pre-Jones law made officers’ conduct reasonable
Admission of prior cocaine-possession convictions (Rule 404(b))	Prior convictions were remote and for possession (not distribution); unduly prejudicial and not probative of intent	Prior drug convictions are probative of intent in a drug-conspiracy case; 404(b) is inclusive and admission was not an abuse of discretion	Court affirmed admission: prior convictions relevant to intent and not unduly prejudicial
Sentencing: use of acquitted/uncharged conduct and as-applied Sixth Amendment challenge	Court impermissibly relied on acquitted conduct and judicial factfinding violated Sixth Amendment as applied	Watts permits consideration of acquitted conduct by preponderance; Booker preserved advisory Guidelines and statutory maximum controls Sixth Amendment	Court held Watts controls; sentencing facts may be found by preponderance so long as sentence does not exceed statutory maximum; Smith’s sentence below statutory max; as-applied claim rejected

Key Cases Cited

United States v. Jones, 132 S. Ct. 945 (2012) (installation and use of GPS device on vehicle constitutes a Fourth Amendment search)
Davis v. United States, 131 S. Ct. 2419 (2011) (good-faith exception applies when officers reasonably rely on binding appellate precedent)
United States v. Michael, 645 F.2d 252 (5th Cir. 1981) (en banc) (placement of electronic tracking device on vehicle permitted on reasonable suspicion)
United States v. Leon, 468 U.S. 897 (1984) (good-faith exception to exclusionary rule for objectively reasonable reliance on warrant)
United States v. Knotts, 460 U.S. 276 (1983) (no reasonable expectation of privacy in movements on public roads)
United States v. Watts, 519 U.S. 148 (1997) (sentencing court may consider conduct underlying acquitted charge by preponderance)
United States v. Booker, 543 U.S. 220 (2005) (advisory nature of Federal Sentencing Guidelines to preserve Sixth Amendment)