United States District Court, D. Massachusetts
MEMORANDUM OF DECISION
RYA W. ZOBEL, District Judge.
Defendant seeks to exclude evidence derived directly and indirectly from a warrantless GPS search.
Based on the evidence adduced at the hearing on defendant's motion, I find the following facts.
Defendant Donald Scott became the subject of investigation after he was stopped at Boston Logan Airport on July 19, 2010, on a trip bound for Los Angeles with $71, 000 in cash. The money was packaged in cellophane, defendant was carrying more than one cellular phone, and he could provide no details, business cards, or external proof of his stated reason for travel that he was a music promoter. These facts, along with a drug dog's alerting to narcotics on the cellophane-packaged currency, triggered further official inquiry.
During the course of the subsequent investigation the agents obtained defendant's banking and cell phone records, monitored his calls, checked his contacts and conducted visual surveillance of him. They found frequent deposits of cash in Boston and subsequent withdrawals in Los Angeles. On one occasion, defendant was intercepted at the Los Angeles airport and found to be carrying $20, 000 in cash. A search of trash at defendant's residence led to the discovery of three bags of cellophane packaging material that smelled of marijuana, and with marijuana on tape stuck to the material.
Starting in October 2010 and continuing to December 20, 2011, the agents periodically installed GPS tracking devices on one or another of the defendant's cars. They obtained neither a search warrant nor consent. On December 20, 2011, Special Agent ("SA") Richard Atwood of the Department of Homeland Security, the leader of the investigation of defendant, instructed Technical Officer William Anderson to install a GPS tracker on defendant's Nissan Maxima, and Anderson did so.
On December 21, 2011, at 1:30 p.m., SA Atwood checked the tracking information of Scott's Nissan and noticed it had left Massachusetts at approximately 7:45 a.m. and arrived in New York at some time after 1:00 p.m. It left the New York area around 2:00 p.m. and headed north on I-95. According to SA Atwood, this pattern of travel is indicative of someone picking-up or dropping-off something. SA Atwood requested the Massachusetts State Police ("MSP") to pull the car over if it crossed their path. The MSP and the Drug Enforcement Agency ("DEA") established surveillance at the border of Massachusetts and Rhode Island to identify defendant as he entered Massachusetts.
MSP Trooper Kennedy identified Mr. Scott's car as it passed into Massachusetts and recognized that the left taillight of the Nissan was not functional. She informed MSP Trooper Kelly, who ultimately made the stop at approximately 7:30 p.m. after locating the vehicle from the description furnished and GPS coordinates.
Several law enforcement personnel, including MSP Trooper Morris and his drugsniffing dog, "Rocky", assembled in short order. Mr. Scott and his passenger, Petrina Williams, were asked to step out of the car. After they complied, Trooper Morris performed an exterior scan of the vehicle with Rocky. Rocky alerted to the presence of narcotics in the trunk area. Trooper Morris then opened the trunk, at which point there emanated a strong smell of unburnt marijuana. Inside the trunk he saw a bag with multi-colored pills which he believed to be narcotics. The pills proved to be Benzylpiperazine ("BZP"), an illegal drug.
II. Conclusions of Law
A. The GPS Tracking
The Fourth Amendment to the United States Constitution prohibits unreasonable searches. U.S. Const. Amend. IV. Evidence obtained in violation of this ban must be suppressed under the prudential "exclusionary rule." Davis v. United States, ___ U.S. ___, 131 S.Ct. 2419, 2427 (2011). Tracking an individual's car by attaching to it a GPS device is a search within the meaning of the Fourth Amendment. United States v. Jones, 132 S.Ct. 945, 949 (2012). It is undisputed that the several agents investigating defendant did not obtain a warrant prior to the placement and use of the GPS device on defendant's cars. As a result, the evidence obtained from that tracking is subject to suppression if the agents' conduct does not fall within an exception to the exclusionary rule.
One such is the "good-faith" exception, allowing the use at trial of evidence obtained in violation of the Fourth Amendment when the police officers have an objectively reasonable good-faith belief that their conduct is lawful. United States v. Rose, 914 F.Supp.2d 15, 22 (D. Mass. 2012). The good-faith exception applies even to an officer's "objectively reasonable ...