United States v. Harry Berry
664 F. App'x 413
| 5th Cir. | 2016Background
- DEA investigated Harry Berry for narcotics trafficking beginning in 2010; agents obtained a wiretap for Berry’s phone (May–July 2011) and installed a warrantless GPS tracker on his car on June 9, 2011, which monitored the vehicle for 73 days until his arrest.
- The tracker sent geofence alerts; agents used it as a supplement to the wiretap and relied on it between July 31 and Berry’s August 20 arrest.
- DEA surveillance linked Berry to stash locations and trips to Houston; agents received a geofence alert on August 20 indicating a return trip to New Orleans and notified Louisiana State Police (LSP).
- LSP troopers stopped Berry for a traffic violation; after a records check and Berry’s refusal to consent to a search, they deployed a narcotics detection dog (Niko), which alerted around the vehicle.
- Troopers searched the truck bed for about 45 minutes, then redeployed the dog to the interior; the dog indicated at the speaker box and officers found 2.5 pounds of heroin.
- Berry moved to suppress the heroin, arguing (1) the warrantless GPS placement and 73-day monitoring violated the Fourth Amendment, and (2) the traffic stop and subsequent search were impermissibly extended/detaining; the district court denied both motions and Berry appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Warrantless GPS attachment and 73-day monitoring | GPS placement and long-term monitoring were an unreasonable Fourth Amendment search | Agents acted in good faith relying on controlling Fifth Circuit precedent (Michael/Andres); exclusionary rule inapplicable under Davis | Affirmed: agents’ reliance on binding Fifth Circuit precedent made their conduct objectively reasonable and suppression not warranted |
| Extension of traffic stop and dissipation of probable cause | Stop was impermissibly extended after background check cleared; initial dog alert lost probable cause after 45-minute unsuccessful search | Troopers developed reasonable suspicion (DEA briefing, Berry’s evasive/inconsistent statements, nervousness) permitting extension; probable cause did not dissipate during diligent search | Affirmed: extension and subsequent search lawful under Terry/automobile exception; probable cause persisted |
Key Cases Cited
- Davis v. United States, 564 U.S. 229 (evidence obtained in reasonable reliance on binding precedent is not excluded)
- United States v. Jones, 132 S. Ct. 945 (attachment and use of GPS is a Fourth Amendment search)
- United States v. Andres, 703 F.3d 828 (5th Cir.) (pre-Jones Fifth Circuit precedent made warrantless GPS tracking objectively reasonable)
- United States v. Michael, 645 F.2d 252 (5th Cir. en banc) (warrantless beeper placement and monitoring permissible under reasonable suspicion)
- Rodriguez v. United States, 135 S. Ct. 1609 (traffic-stop authority ends when tasks tied to the traffic infraction are completed)