UNITED STATES of America, Plaintiff-Appellee, v. Matthew L. MARTIN, Defendant-Appellant.
No. 11-1696.
United States Court of Appeals, Seventh Circuit.
March 25, 2013.
707 F.3d 1080
Though the record is not well developed on this point, we doubt that Westmoreland‘s counsel‘s decision to refuse to pursue Westmoreland‘s arguments in favor of a new trial was anything other than a reasonable strategic choice. But even if Westmoreland were sоmehow able to overcome that hurdle, he has not shown prejudice. His argument is that he was prejudiced because his motion for new trial had merit. Those arguments have now been developed on appeal by highly capable appointed counsel. We have examined those arguments and affirm the district court in finding that a new trial was not warranted. Without a meritorious argument for a new trial, Westmoreland cannot show prejudice, and without prejudice, he cannot show that his counsel‘s performance was deficient in refusing to present his arguments. Accоrdingly, whether fashioned as an ineffective assistance of counsel claim or as a right to counsel claim, his claim still fails.
AFFIRMED.
Linda L. Mullen, Attorney, Officе of the United States Attorney, Rock Island, IL, for Plaintiff-Appellee.
George F. Taseff, Attorney, Office of the Federal Public Defender, Peoria, IL, for Defendant-Appellant.
Before FLAUM, KANNE, and WOOD, Circuit Judges.
PER CURIAM.
Matthew L. Martin, a convicted felon, pleaded guilty to possessing a firearm, see
Our earlier opinion thoroughly discussed the police‘s investigation of Martin and his arrest, and we repeat here only the details relevant to his current motion. After a bank robbery in Burlington, Iowa, police officers received a tip that Martin was one of the robbers. The police located Martin, attached a GPS device to his car, and tracked him into Illinois, where a local deputy sheriff stopped and searched his car. The search revealed drugs and a revolver underneath the hood of the car, and Martin еventually admitted during a police interview that he knew about the gun.
On the limited remand, the district court concluded that, pursuant to Davis v. United States, — U.S. —, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011), suppression was not warranted because of the “officer‘s good faith reliance on then-existing precedent.” With respect, we find that to be an unwarrantеd expansion of the Supreme Court‘s decision in Davis and not one that we should adopt in the present case. Davis expanded the good-faith rationale in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), only to “a search [conducted] in objectively reasonable reliance on binding appellate precedent,” finding that this set of searches are not subject to the exclusionary rule. See Davis, 131 S.Ct. at 2434 (emphasis added). As Justice Sotomayor pointed out in her opinion сoncurring in the judgment, Davis “d[id] not present the markedly different question whether the exclusionary rule applies when the law governing the constitutionality of a particular search is unsettled.” Id. at 2435. The Supreme Court may decide to expand Davis in the coming years, but until it does so, we are bound to continue applying the traditional remedy of exclusion whеn the government seeks to introduce evidence that is the “fruit” of an unconstitutional search. We reject the government‘s invitation to allow police officers to rely on a diffuse notion of the weight of authority around the country, especially where that amorphous opiniоn turns out to be incorrect in the Supreme Court‘s eyes. Here, as Martin points out in his supplemental brief, there was no binding appellate prеcedent in the Eighth Circuit at the time that Iowa law enforcement officials attached the GPS device to Martin‘s car.
We need not definitely rеsolve this point in the context of this case, however, because the facts require us to reject Martin‘s argument for suppression. The evidence he seeks to suppress had little to do with the fact that a GPS device had been used at all: put differently, it was significantly “attenuated” from the improper installation of the device. As the district court initially ruled in 2010, “there was probable cause for Martin‘s arrest [and] it was reasonablе for the officers to believe Martin‘s vehicle contained evidence of the bank robbery” independent of any data gleaned from its еlectronic surveillance of the vehicle. The GPS data here appears simply to have aided law enforcement officials in tracking down Martin when they decided to effect his arrest. This is quite different from the situation in Jones, where the GPS data was used to establish a necessary link betweеn the defendant and a cocaine stash house, 132 S.Ct. 945 (2011). It is also different from the various post-Jones district court cases Martin cites, United States v. Katzin, 2012 WL 1646894 (E.D.Pa. May 9, 2012) (GPS data tying suspects to string of pharmacy robberies), United States v. Lee, 862 F.Supp.2d 560 (E.D.Ky.2012) (GPS tracking data indicating suspect was transporting marijuana), United States v. Ortiz, 878 F.Supp.2d 515 (E.D.Pa.2012) (GPS data connected defendant to complex drug trafficking scheme). Martin has not responded to the government‘s attenuation argument. Indeed, he has offered zero argument, at any stage, that would establish why exclusion of the evidence seized here is necessary to vindicate the specific (somewhat unique) privacy interest that has been violated in his case. As Justice Scalia put it in Jones, the problem arises when “[t]he Government physically occuрie[s] private property for the purpose of obtaining information.” 132 S.Ct. at 949. Perhaps if Martin had developed this argument more fully at the district cоurt level, that gap could have been filled. But it was not, and so, even though we are willing to proceed on the basis that he did not completely forfeit
No judge in active service has requested a vote on the petition for rehearing en banc, and all of the judges on the original panel have voted to deny rehearing. It is therefore ordered that the petition for rehearing and for rehearing en banc is DENIED.