UNITED STATES OF AMERICA v. JOSHUA DRAKE HOWARD
CASE NO. 1:19-CR-54-WKW [WO]
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA SOUTHERN DIVISION
November 15, 2019
W. Keith Watkins, United States District Judge
This motion asks whether the Government gets one free day to electronically track a borrowed truck with a GPS tracking device without a warrant. The Supreme Court’s long-standing directive that the Fourth Amendment does not apply to a car’s movements on public roads is in apparent conflict with its recent attempt to adapt the Amendment to twenty-first-century fears that Big Brother is watching. While courts are no doubt called to extend new protections to new technologies, established constitutional limits are binding so long as they remain the rule of law. Therefore, the motion to suppress is due to be denied.
On August 26, 2019, the Magistrate Judge filed a Recommendation (Doc. # 50) that the motion to suppress filed by Defendant Joshua Drake Howard (Doc. # 28) be denied. Defendant timely objected to the Recommendation. (Doc. # 61.) Upon a de novo review of the record and the Recommendation, Defendant’s objections relating to the GPS tracking of his borrowed vehicle and relating to
I. STANDARD OF REVIEW
When a party objects to a Magistrate Judge’s Report and Recommendation, the district court must review the disputed portions de novo.
II. FACTUAL HISTORY
This case involves two automobile stops: one in a parking lot in Headland, Alabama (a suburb of Dothan, Alabama), on February 22, 2018, and one along a roadway in Dothan on July 13, 2018. The Recommendation adequately recites the facts, but some will be repeated or summarized here for clarity.
On February 20, 2018, Investigator Joshua Tye of the Dothan Police Department arrested a woman for possession of methamphetamine and secured her agreement to cooperate with the Department on other unspecified cases. On February 21, 2018, Investigator Tye’s superior, Corporal Krabbe, informed Tye that he had received information from his own confidential informant (“CI”) that Joshua Drake Howard was “possibly traveling to Phenix City that day or that night to pick up a large amount of methamphetamine.” (Doc. # 42, at 4–6, 37); (Doc. # 38, Def. Ex. 2, at 1.) On the same day, Investigator Tye contacted his new informant, who confirmed that she knew Mr. Howard to be a meth distributor and agreed to contact Mr. Howard for more information. The CI soon contacted Investigator Tye and informed him that Mr. Howard “was going to the Phenix City area to pick up methamphetamine” that day and that he asked to borrow her truck. (Doc. # 42, at 7–8.)
As Mr. Howard neared Dothan around 2:00 p.m. on February 22, 2018, Investigator Tye decided to intercept the truck in Headland. His fellow officers confirmed that Mr. Howard was driving the CI’s truck at this time. Mr. Howard stopped and ate in a Hardee’s parking lot, at which time Investigator Tye approached the truck, told Mr. Howard to step out, and saw a handgun in the driver’s door map pocket. Investigator Tye then patted Mr. Howard down; found meth on his person; and found a larger bag containing meth, paraphernalia, ammunition, and another gun in the bed of the truck. (Doc. # 42, at 15–21.) Mr. Howard was transported to the
Less than five months later, on July 13, 2018, Corporal Clifton Overstreet of the Dothan Police Department stopped Mr. Howard for crossing over “a solid yellow line into the beginning of a turn lane for oncoming traffic” and for “failing to signal before getting into the turn lane or before getting within 100 feet of making a left turn.” (Doc. # 50, at 5); (Doc. # 42, at 44–45.) “A computer search revealed that Mr. Howard had active arrest warrants. As a result, he was arrested, and the contents of his vehicle were inventoried. The inventory search of the vehicle revealed a firearm with an obliterated serial number.” (Doc. # 61, at 4.)
Mr. Howard challenges one of the Recommendation’s findings of fact—that Mr. Howard committed a traffic violation before being stopped on July 13, 2018. Because this finding is closely entwined with the Recommendation’s legal conclusion relating to that stop, it is discussed in Section III.C. The Magistrate Judge’s findings of fact with respect to that traffic violation are due to be adopted.
III. DISCUSSION
Mr. Howard objects to the Magistrate Judge’s conclusions that (1) he lacked a reasonable expectation of privacy in his movements while operating the borrowed truck, (2) Investigator Tye had reasonable suspicion to stop his vehicle on February 22, 2018, and (3) Corporal Overstreet had reasonable suspicion to stop his vehicle
A. The Dothan Police Department’s monitoring of the GPS tracker attached to Mr. Howard’s borrowed truck was not a search.
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
As the Recommendation noted, a Fourth Amendment quandary awaits the reader. Seven years ago, the United States Supreme Court in United States v. Jones declared 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” for twenty-eight days, “constitutes a ‘search.’” 565 U.S. 400, 404 (2012). This would be a closed case if that Court had found that all GPS vehicle monitoring violated a suspect’s reasonable expectation of privacy, a doctrine which has ostensibly been the “lodestar” test of Fourth Amendment analysis for the past fifty-two years. See Katz v. United States, 389 U.S. 347, 360–61 (1967) (Harlan, J., concurring) (suggesting that government intrusion into an area where an individual has a reasonable expectation of privacy is a search); Smith v. Maryland, 442 U.S. 735, 739 (1979) (declaring Katz to be the “lodestar” when “determining whether a particular form of government-initiated electronic surveillance is a ‘search’”).
Instead, Justice Scalia’s majority opinion in Jones revived the Fourth Amendment’s traditional roots in property law and reasoned that Mr. Jones had been searched because the Government physically trespassed on his bailment interest in his wife’s vehicle for the purpose of obtaining information. Jones, 565 U.S. at 404 & n.2, 405. The length of the surveillance, twenty-eight days, played no part in the holding. See id. at 412–13. As a result, district courts still possess scant and
2.
To understand this quandary, it is helpful to first look to the history and original meaning of the Fourth Amendment, then to recent developments. The Fourth Amendment was drafted and ratified to prevent threats to individual liberty that were well-known at the founding: intrusions by government officers into private property. In the late-eighteenth century, these intrusions included general warrants and writs of assistance. Carpenter v. United States, 138 S. Ct. 2206, 2264 (2018) (Gorsuch, J., dissenting). General warrants failed to identify the person or place to be searched or the evidence that was being sought, and writs of assistance gave customs officials “carte blanche to access ships, warehouses, and homes, and all persons, papers, and effects contained therein” with the forced assistance of nearby laymen. Laura K. Donahue, The Original Fourth Amendment, 83 U. CHI. L. REV. 1181, 1207–08, 1242–44 (2016).
With these evils in mind, the Fourth Amendment’s drafters protected Americans from unreasonable searches in particular classes of property. “When the Fourth Amendment was adopted, as now, to ‘search’ meant ‘to look over or through for the purpose of finding something; to explore; to examine by inspection; as, to
This history motivated the Jones majority in 2012. See Jones, 565 U.S. at 404–405. If property rights were the only Fourth Amendment yardstick, this motion to suppress could be easily dismissed. The police did not commit a trespass to chattel because they attached the GPS device to the truck with the owner’s consent before Mr. Howard borrowed it. See id. at 425 (Alito, J., dissenting) (“[A] bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. So if the GPS device had been installed before [the owner] gave him the keys, respondent would have no claim for trespass—and, presumably, no Fourth Amendment claim either.” (internal citation omitted)).
However, in 1967, the Court pivoted away from notions of property and toward notions of privacy. When confronted with the thorny issue of how to apply
3.
This court is not the only one left in the lurch by the present state of the law.
Jurists and commentators tasked with deciphering [the Supreme Court’s] jurisprudence have described the Katz regime as “an unpredictable jumble,” “a mass of contradictions and obscurities,” “all over the map,” “riddled with inconsistency and incoherence,” “a series of inconsistent and bizarre results that [the Court] has left entirely undefended,” “unstable,” “chameleon-like,” “‘notoriously unhelpful,’” “a conclusion rather than a starting point for analysis,” “distressingly unmanageable,” “a dismal failure,” “flawed to the core,” “unadorned fiat,” and “inspired by the kind of logic that produced Rube Goldberg’s bizarre contraptions.”
Carpenter, 138 S. Ct. at 2244 (Thomas, J., dissenting) (internal citations omitted).
Lest one thinks this lack of guidance is by accident, the Supreme Court noted last year in Carpenter that “no single rubric definitively resolves which expectations of privacy are entitled to protection.” Id. at 2213–14 (majority opinion). “But then it offer[ed] a twist. Lower courts should be sure to add two special principles to their Katz calculus: the need to avoid ‘arbitrary power’ and the importance of ‘plac[ing] obstacles in the way of a too permeating police surveillance.’” Id. at 2266 (Gorsuch, J., dissenting) (internal quotation marks omitted) (quoting id. at 2214 (majority
“While surely laudable, these principles don’t offer” a court “much guidance.” Id. The Supreme Court has not provided instruction as to “how far to carry either principle or how to weigh them against the legitimate needs of law enforcement.” Id. One does not know at what point “access to electronic data amount[s] to ‘arbitrary’ authority” or when “police surveillance become[s] ‘too permeating.’” Id. “And what sort of ‘obstacles’ should judges ‘place’ in law enforcement’s path when it does?” Id. Answers evade analysis. Consequently, one is “left with two amorphous balancing tests, a series of weighty and incommensurable principles to consider in them, and a few illustrative examples that seem little more than the product of judicial intuition.” Id. at 2267.
4.
With this “guidance” in mind, some specific illustrative examples inform this case. On the one hand, the Court’s holding in United States v. Knotts permits the use of a beeper to follow a vehicle because “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U.S. 276, 281 (1983).
Police officers in that case planted a beeper in a container of chloroform before it was purchased by one of Knotts’s co-conspirators. The officers (with intermittent aerial assistance) then followed the automobile carrying the container from Minneapolis to Knotts’s cabin
in Wisconsin, relying on the beeper’s signal to help keep the vehicle in view. The Court concluded that the “augment[ed]” visual surveillance did not constitute a search because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Since the movements of the vehicle and its final destination had been “voluntarily conveyed to anyone who wanted to look,” Knotts could not assert a privacy interest in the information obtained.
Carpenter, 138 S. Ct. at 2215 (quoting Knotts, 460 U.S. at 281–82) (internal citations omitted). On the other hand, the Court’s recent holding in Carpenter v. United States forbids the Government from warrantlessly accessing seven days of historical cell site location information (“CSLI”) from a target’s wireless carriers because a person has a “reasonable expectation of privacy in the whole of his physical movements.”2 Id. at 2219.
Each case attempted to limit its own construction. The Knotts Court noted the “limited use which the government made of the signals from this particular beeper” during a discrete “automotive journey” and reserved the question of whether “different constitutional principles may be applicable” if “twenty-four hour surveillance of any citizen of this country [were] possible.” Knotts, 460 U.S. at 283–85 (internal quotation marks omitted). In Carpenter, the Court explicitly refused to
5.
Four Supreme Court justices, the D.C. Circuit, and the Sixth Circuit have endorsed an idea that could reconcile these disparate holdings under a mosaic theory of electronic location tracking. “Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring,” thus enabling the creation of a detailed mosaic of a person’s life, “in the investigations of most offenses impinges on expectations of privacy.” Jones, 565 U.S. at 430 (Alito, J., concurring) (internal citation omitted); see also Orin S. Kerr, Implementing Carpenter 35 (discussion draft excerpted from THE DIGITAL FOURTH AMENDMENT (forthcoming), 2018), https://ssrn.com/abstract=3301257 (“The idea of the mosaic theory is to treat short-term or limited records collection differently than long-term or broad records collection. Limited collection is not a search, but surveillance that goes on too long crosses a line and triggers the Fourth Amendment.”).
In the end, the GPS monitoring in this case was not a search, a conclusion that does not rest on the mosaic theory. Instead, the finding is grounded in the fundamentals of the relevant facts and applicable law. First, there was no trespass; the truck was borrowed, and it came equipped with an owner-approved option: GPS tracking. Second, the surveillance was not for an “extended period of time.” Jones, 565 U.S. at 418 (Alito, J., concurring). Mr. Howard was monitored during a discreet trip over a twenty-two-hour period with a two-way distance of approximately two hundred miles. The officers had a short, same-day window to decide whether to install the GPS device, secure the owner’s consent, install the device, and ensure Mr. Howard received the truck. They had to do all of this without arousing suspicion, and all for a single out-and-back journey. These trip characteristics fall easily within the province of Knotts.
Third, GPS is not the technological equivalent of CSLI. A GPS is a “grown up” beeper, both of which can be distinguished technologically from CSLI. While one is satellite based and one is radio based, both provide real-time location monitoring.8 As acknowledged in Carpenter, CSLI is more intrusive than GPS vehicle monitoring because it is retrospective and can track cell phone holders into
Cell phones also differ from vehicles in their capacity to “track[] nearly exactly the movements of its owner. While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.” Id. Cell phones also follow their owners into homes and other constitutionally protected spaces, wherein monitoring them violates Supreme Court precedent. See United States v. Karo, 468 U.S. 705, 714 (1984) (holding that “the monitoring of a beeper in a private residence, a location not open to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence”); see also Carpenter, 138 S. Ct. at 2218 (“A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters, and other potentially revealing locales.”).
While not a perfect fit, this case is more factually analogous to Knotts. Even though Mr. Howard made several stops, he has not argued that the truck was ever located where the police could not have legally observed it. Compare Knotts, 460 U.S. at 281–82 (holding that monitoring a beeper sitting in a car that is in public view is constitutional), with Karo, 468 U.S. at 714 (holding that monitoring a beeper that has been taken into a home is unconstitutional). That Investigator Tye chose not to observe the truck is presently irrelevant. “It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy,” Jones, 565 U.S. at 412, but neither the Supreme Court nor the Eleventh Circuit has yet held as much. So long as Knotts is the law, the court declines to answer that question in the affirmative.
Finally, this conclusion is grounded in the much older principles of stare decisis. Carpenter’s seemingly sweeping language and its two new principles, Carpenter, 138 S. Ct. at 2214, may signal the Supreme Court’s willingness to revisit
Considering these distinctions, a full-scale Katz evaluation of these facts is not warranted. Their import has already been decided. While different facts may someday call for a different analytical lens, “the fact” here “is that the ‘reality hardly suggests abuse.’” Knotts, 460 U.S. at 284 (quoting Zurcher v. Stanford Daily, 436 U.S. 547, 566 (1978)). Until a higher court dictates that “achieving the same result” as extended visual observation “through electronic means, without an accompanying
B. Investigator Tye had reasonable suspicion to stop Mr. Howard on February 22, 2018.
Mr. Howard has objected to the Recommendation’s finding that the vehicle stop by Investigator Tye on February 22, 2018, was supported by reasonable suspicion of criminal activity. That objection is due to be overruled, and the Recommendation is due to be adopted with modification.
The Recommendation’s legal and factual analysis of Investigator Tye’s basis for reasonable suspicion is sound and will be briefly summarized for clarity. (Doc. # 50, at 15–19.) Under Terry v. Ohio, a law enforcement agent may conduct a traffic stop if he or she has reasonable suspicion of criminal activity. 392 U.S. 1, 30 (1968). When determining whether the totality of the circumstances establishes reasonable suspicion, a court considers the following factors: 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; and
The Recommendation analogized this case to the facts of Alabama v. White, 496 U.S. 325 (1990). In that case, “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.” (Doc. # 50, at 17 (citing White, 496 U.S. at 327).) Police watched the defendant leave that apartment complex with nothing in her hands and drive the described vehicle toward the motel. White, 496 U.S. at 327. Police stopped the defendant near the motel. Id. The Court concluded that the officers had reasonable suspicion because the caller correctly predicted the time and direction of the defendant’s travel and because the officers independently confirmed those facts. Id. at 331–32.
“As in White, the CI predicted the approximate time Howard would be leaving, the vehicle he would be driving, and his destination.” (Doc. # 50, at 18.) These details and the fact that Howard was borrowing the CI’s own vehicle indicate that she had personal knowledge about the purpose of his trip. “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
But the analysis is modified to acknowledge the presence of a second confidential informant. (Doc. # 50, at 2.) This investigation began when Corporal Krabbe, Investigator Tye’s superior, received a tip from his own confidential informant that Mr. Howard “was possibly traveling to Phenix City that day or that night to pick up a large amount of methamphetamine.” (Doc. # 42, at 4–5, 37); (Doc. # 38, Def. Ex. 2, at 1.) This tip prompted Investigator Tye’s call to the other CI who loaned Mr. Howard the truck. (Doc. # 42, at 4–5, 37.) While the record does not provide any information as to Corporal Krabbe’s CI’s history with law enforcement or his or her motivations, that CI’s tip does add to the foundation for reasonable suspicion. For the reasons stated here and in the Recommendation, Investigator Tye had a reasonable suspicion of criminal activity when he stopped Mr. Howard’s truck.
Additionally, Mr. Howard’s objections raise some factually unsupported claims that are worth correcting. First, Mr. Howard asserts that “it appears that the alleged agreement for Mr. Howard to travel to Phenix City was orchestrated by the C[I].” (Doc. # 61, at 11.) Mr. Howard cites no evidence in the record that supports this assertion, and the evidence that is in the record suggests that Mr. Howard made this plan before he asked Investigator Tye’s CI for her truck. (Doc. # 42, at 4–5, 8,
C. Corporal Overstreet had probable cause to believe that Mr. Howard committed a traffic violation on July 13, 2018.
Mr. Howard objects to the Magistrate Judge’s finding that he committed a traffic violation that would justify his July 13, 2018 stop. (Doc. # 61, at 14–15.) Upon review of the dashboard camera video (Doc. # 38, Def. Ex. # 5), the court finds that Mr. Howard did cross a double-yellow line in violation of
IV. CONCLUSION
For these reasons, the GPS tracking of Mr. Howard’s borrowed vehicle was not a search and did not violate his Fourth Amendment rights. Mr. Howard’s Fourth Amendment rights were not violated during his February 22, and July 13, 2018 traffic stops. The Recommendation is therefore adopted with modifications, and Defendant’s motion to suppress is denied.
It is ORDERED as follows:
- The Magistrate Judge’s Recommendation (Doc. # 50) is ADOPTED as MODIFIED herein;
- Defendant’s objections (Doc. # 61) are OVERRULED; and
- Defendant’s motion to suppress (Doc. # 28) is DENIED.
DONE this 15th day of November, 2019.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE