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No. IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 2012 JUAN PINEDA-MORENO,
Petitioner, v.
UNITED STATES OF AMERICA,
Respondent.
On Petition for a Writ of Certiorari To the United States Court of Appeals For the Ninth Circuit
____________
PETITION FOR A WRIT OF CERTIORARI
TIMOTHY R. VOLPERT HARRISON LATTO Davis Wright Tremaine LLP Counsel of Record 1300 S.W. Fifth Avenue Law Office of Harrison Latto Suite 2400 1631 NE Broadway, No. 533 Portland, Oregon 97201-5610 Portland, Oregon 97232 Telephone: (503) 241-2300 Telephone: (503) 223-0783 E-mail: [email protected] E-mail: [email protected]
Attorneys for Petitioner
(i)
QUESTION PRESENTED
Did police officers act in objectively reasonable reliance on circuit court
precedents holding that the warrantless use of a “beeper” device did not violate the
Fourth Amendment, so that the exclusionary rule does not apply, when without a
warrant and with the advice of counsel they used a GPS tracking device to monitor
the precise movements of a suspect’s car in public over a prolonged period of time?
(ii)
TABLE OF CONTENTS
Page:
OPINIONS BELOW .................................................................................................. 1 JURISDICTION ......................................................................................................... 1 CONSTITUTIONAL PROVISION INVOLVED ..................................................... 2 STATEMENT OF THE CASE .................................................................................. 2 REASONS FOR GRANTING THE PETITION ....................................................... 6
A. This Court’s “reasonable reliance” decisions all involve well-defined factual situations that are easily applied and confined within clear boundaries .................................................... 8
B. The governing law was unsettled at the time police acted................... 11
C. The Ninth Circuit also erred by ignoring certain salient
circumstances in assessing whether police officers acted in objectively reasonable reliance upon the precedents it cited. ................................. 20
D. Applying the “objectively reasonable reliance” exception
when the law is unsettled endangers continued application of the exclusionary rule. ...................................................................... 22
E. Review of this case would also permit consideration of the
important underlying question, unaddressed in Jones of whether warrantless GPS surveillance over a prolonged period violates the Fourth Amendment. .............................................. 30
CONCLUSION ........................................................................................................ 32
(iii)
APPENDIX:
Circuit court’s opinion on remand (Aug. 6, 2012) ......................................... 1a
Circuit court’s order denying rehearing en banc (Sept. 14, 2012) ................. 9a
District court’s first order denying motion to suppress (June 10, 2008) .................................................................................. 13a
District court’s second order denying motion to suppress
(June 16, 2008) .................................................................................. 12a
Circuit court’s opinion in first stage of appeal (Jan. 11, 2010) .................... 20a
Circuit court’s order denying rehearing en banc, with dissenting opinions (Aug. 12, 2010) .................................................. 31a
TABLE OF AUTHORITIES
Cases:
Arizona v. Evans, 514 U.S. 1 (1995) .................................................................................................. 8
Arizona v. Hicks, 480 U.S. 321 (1987) ............................................................................................ 23
Boyd v. United States, 116 U.S. 616 (1886) ............................................................................................ 29
Davis v. United States, 131 S. Ct. 2419 (2011) ................................................................................. passim
Dow Chemical v. United States, 476 U.S. 227 (1986) ............................................................................................ 18
Groh v. Ramirez, 540 U.S. 551 (2004) ............................................................................................ 10
(iv)
Herring v. United States, 555 U.S. 135 (2009) ..................................................................................... passim
Illinois v. Caballes, 543 U.S. 405 (2005) ............................................................................................ 18
Illinois v. Krull, 480 U.S. 340 (1987) .................................................................................. 9, 20, 21
Katz v. United States, 389 U.S. 347 (1967) ............................................................................................ 18
Kyllo v. United States, 533 U.S. 27 (2001) ....................................................................................... passim
Michigan v. Hudson, 547 U.S. 586 (2006) ............................................................................................ 10
New York v. Belton, 453 U.S. 454 (1981) .............................................................................................. 9
Olmstead v. United States 277 U.S. 438 (1928) ............................................................................................ 18
Ornelas v. United States, 517 U.S. 690 (1996) ............................................................................................ 27
Scott v. Harris, 550 U.S. 372 (2007) ............................................................................................ 23
Smith v. Maryland, 442 U.S. 735 (1979) ............................................................................................ 18
State v. Louis, 672 P.2d 708 (Or. 1983) ..................................................................................... 17
Terry v. Ohio, 392 U.S. 1 (1968) .......................................................................................... 26, 27
(v)
United States v. Brown, 951 F.2d 999 (9th Cir. 1991)............................................................................... 21
United States v. Ford, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS 155208 (E.D. Tenn. No. 11-CR-42, Oct . 30, 2012) ................................................................................... 29
United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002 (1976) .................................. 6
United States v. Johnson, 457 U.S. 537 (1982) ............................................................................................ 26
United States v. Jones, 132 S. Ct. 945 (2012) ................................................................................... passim
United States v. Katzin ___ F.Supp.2d ___, 2012 U.S. Dist. LEXIS 65677 (E.D. Pa. No. CR 11-226 May 9, 2012) ........................................................................................... 29
United States v. Knotts, 460 U.S. 276 (1983) ..................................................................................... passim
United States v. Lee, 274 U.S. 559 (1927) ............................................................................................ 18
United States v. Lee, 862 F. Supp. 2d 560 (E.D. Ky. 2012) ................................................................. 29
United States v. Leon, 468 U.S. 897 (1984) ..................................................................................... passim
United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)......................................................................... 5, 11
United States v. Miroyan, 577 F.2d 489 (9th Cir. 1978)................................................................................. 6
(vi)
United States v. Oladosu, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS 117583 (D.R.I. No. CR 10-056-01-S, Aug. 21, 2012) .............................................................................. 29
United States v. Ortiz, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS 101245 (E.D. Pa. No. CR 11-251 July 20, 2012) ......................................................................................... 29
United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010)....................................................................... 1, 4, 5
United States v. Pineda-Moreno, 688 F.2d 1087 (9th Cir. 2012)........................................................................... 1, 6
United States v. Pineda-Moreno, 688 F.3d 1087 (9th Cir. 2012)............................................................................... 6
United States v. White, 401 U.S. 745 (1971) ............................................................................................ 18
Statutes:
18 U.S.C. §2703(d) .................................................................................................. 31
28 U.S.C. § 1254(1) ................................................................................................... 1
U.S. Const., Amend. IV .................................................................................... passim
Other Authorities
Ariane de Vogue, Supreme Court Ruling Prompts FBI to Turn Off 3,000 Tracking Devices ................................................................................................. 31
BALLENTINE’S LAW DICTIONARY (3d ed. 1969) ....................................................... 29
Eric Lichtblau, More Demands on Cell Carriers in Surveillance ............................ 32
(vii)
Cert Petition, United States v. Jones, O.T. 2011, No. 10-1259 ................................................................................ 30, 32
Supreme Court Rule 10(c) .......................................................................................... 8
Supreme Court Rule 24.1(a) ..................................................................................... 30
PETITION FOR A WRIT OF CERTIORARI
Juan Pineda-Moreno respectfully petitions for a writ of certiorari to review
the judgment of the United States Court of Appeals For the Ninth Circuit.
OPINIONS BELOW
The opinion of the court of appeals on remand from this Court is set forth at
pages App. 1a-8a and is reported at 688 F.2d 1087. The circuit court’s order
denying rehearing en banc is set forth at App-9a. The circuit court’s opinion in the
initial stage of this appeal (App. 10a-19a), and the opinions dissenting from its
denial of rehearing en banc (App. 20a-32a) are reported at 591 F.3d 1212 and 617
F.3d 1120. The district court’s two unpublished orders denying petitioner’s
motion to suppress evidence are at App. 33a-35a and App. 36a-43a.
JURISDICTION
The court of appeals’ opinion was filed on August 6, 2012. Its order
denying petitioner’s timely filed petition for rehearing en banc was filed on
September 14, 2012. This Court has jurisdiction under 28 U.S.C. § 1254(1).
2
CONSTITUTIONAL PROVISION INVOLVED
The Fourth Amendment to the Constitution of the United States provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
STATEMENT OF THE CASE
1. In May 2007, an agent of the Drug Enforcement Agency in Southern
Oregon suspected that petitioner was involved in growing marijuana, after the agent
learned that petitioner, together with other men, had purchased a certain type of
fertilizer commonly used in such operations, and deer repellant. Police officers
followed petitioner’s vehicle to his home in a trailer park in Phoenix, Oregon.
They learned that petitioner also purchased irrigation equipment, although the
mobile home in which petitioner lived did not appear to have an irrigation system,
or a deer problem.
2. After getting authorization from the United States Attorney’s office,
police on July 3, 2007, secretly affixed a surveillance device that used Global
Positioning System (GPS) technology to the underside of petitioner’s car. They
then used that device, or others that used cell-tower transmissions, to track the car’s
3
movements over a period of two months. The devices enabled police to learn
exactly where the car went, down to the minute and second of latitude and
longitude, and how much time the vehicle spent at each location. The vehicle’s
location could be monitored remotely in “real time” by means of a computer
program; or, data from a device could be stored and downloaded later to a
computer, which required removal of the device from the vehicle. Several times
during this surveillance, late at night to avoid detection, police officers retrieved the
tracking devices to download information, replaced a device with a new one, and
changed a device’s batteries. At times when they did this the vehicle was parked in
a public place, but on two occasions it was parked in petitioner’s driveway, within
the curtilage of his home. Police obtained authorization from an Assistant United
States Attorney each time they removed or attached a device.
3. By means of the tracking devices police learned that petitioner’s car
had traveled on more than one occasion to a remote, mountainous area just across
the California border. On one occasion the men bought groceries before going to
that location, where they stayed for only about five minutes. Police later
discovered a marijuana-growing operation in the same area, and a person arrested in
4
connection with that discovery pointed towards the mountains and told police that
there was a larger marijuana-growing operation located there.
4. On the basis of this new information, police on September 12, 2007,
arrested petitioner, and then obtained his consent to search his home, where they
found marijuana. Petitioner was indicted for manufacture and conspiracy to
manufacture a controlled substance.
5. Petitioner moved to suppress the evidence found in his home,
contending that the warrantless attachment of the devices, entry by police onto the
curtilage of his home, and surveillance of his travels using the devices violated his
rights under the Fourth Amendment. After the district court denied the motion,
petitioner was convicted, upon his conditional guilty plea, of conspiracy to
manufacture a controlled substance, and sentenced to 51 months in prison.
6. The Court of Appeals For the Ninth Circuit affirmed the denial of
petitioner’s motion to suppress. United States v. Pineda-Moreno, 591 F.3d 1212
(9th Cir. 2010). It concluded that neither the attachment of the devices, nor their
use to conduct surveillance of petitioner’s travels, constituted either a search or
5
seizure under the Fourth Amendment.1 The panel also held that police did not
violate petitioner’s rights under the Fourth Amendment when they entered the
curtilage of his residence without his knowledge or consent in order to attach a
tracking device to his vehicle.
7. This Court granted certiorari, vacated the circuit court’s decision, and
remanded for reconsideration in light of United States v. Jones, 132 S. Ct. 945
(2012). Pineda-Moreno v. United States, 132 S. Ct. 1533 (2012).
8. On remand, the same panel of the Ninth Circuit again affirmed the trial
court’s denial of petitioner’s motion to suppress, but on a different basis. It
concluded that the exclusionary rule did not apply when police attached the tracking
devices, and used them to monitor petitioner’s travels, because there were binding
circuit court precedents in effect at the time holding that neither the attachment of
the devices, nor their use, constituted a search or seizure within the meaning of the
Fourth Amendment. The precedents the panel cited were United States v. McIver,
186 F.3d 1119 (9th Cir. 1999), with respect to the attachment of the devices, and
1 The Government argued on appeal that petitioner had not preserved the claim that surveillance of his travels using the GPS device violated his rights under the Fourth Amendment. The Ninth Circuit reached, and rejected that claim on its merits, without deciding whether or it had been preserved in the district court. United States v. Pineda-Moreno, 591 F.3d 1212, 1216 n.1 (9th Cir. 2010).
6
United States v. Hufford, 539 F.2d 32 (9th Cir.), cert. denied, 429 U.S. 1002
(1976), and United States v. Miroyan, 577 F.2d 489 (9th Cir. 1978), with respect to
their use to conduct surveillance. United States v. Pineda-Moreno, 688 F.2d 1087
(9th Cir. 2012).2
9. The circuit court denied petitioner’s petition for rehearing en banc,
without comment.
REASONS FOR GRANTING THE PETITION
This Court recently held that the exclusionary rule does not apply when
police act in “objectively reasonable reliance on binding judicial precedent,” even if
that precedent is later overruled. Davis v. United States, 131 S. Ct. 2419, 2428
(2011). In Davis, however, the precedent upon which police were held to have
reasonably relied had announced what was considered “for years … to have set
down a simple, bright-line rule.” Davis, 131 S. Ct. at 2424. That precedent, this
2 In order to avoid addressing whether police acted in good faith when they entered the curtilage of petitioner’s home without a warrant in the middle of the night to affix the tracking device to his car, the Ninth Circuit for the first time distinguished between the information police obtained after that placement of the device, and the information obtained after they affixed the device while the vehicle was parked on a public street, and concluded that the latter information, combined with other incriminating information police already had, was sufficient to constitute probable cause to arrest petitioner. United States v. Pineda-Moreno, 688 F.3d at 1090-91.
7
Court stated, “specifically” authorized the “particular” police practice at issue. 131
S. Ct. at 2429.
A “bright line” rule is one that is easy to understand, with clearly defined
boundaries, and that was the case in Davis with respect to the permissible scope of
the search of an automobile incident to the arrest of its occupant. This case
presents a question that is vitally important for the continued application of the
exclusionary rule, because the precedents upon which, according to the Ninth
Circuit, police reasonably relied in conducting warrantless surveillance of petitioner
using a GPS tracking device, fell far short of establishing a “bright line” rule that
applied to the type of surveillance involved. Instead, they only arguably
authorized that conduct. Those 30-year-old precedents did not specifically
authorize the “particular” practice involved, because they addressed a different type
of surveillance tool, namely a “beeper,” whose capacity for information-gathering is
primitive compared to GPS technology. The controlling law at the time the police
act actually was unsettled and subject to significant doubt.
Accordingly, the Ninth Circuit’s decision represents a dangerous,
unwarranted extension of the “reasonable reliance” exception to the exclusionary
rule, which threatens to eliminate application of that rule in all but the most
8
egregious cases of unlawful conduct by police. Review is therefore warranted
because “a United States court of appeals has decided an important question of
federal law that has not been, but should be, settled by this Court.” Rule 10(c).
A. This Court’s “reasonable reliance” decisions all involve well-defined factual situations that are easily applied and confined within clear boundaries.
Beginning in 1984, this Court has identified several situations in which
police, although they were later determined to have violated the Fourth
Amendment, did so in “objectively reasonable reliance” (or in “good faith” belief)
that their conduct was lawful. Under those circumstances, this Court has held there
was no need to exclude evidence that was obtained as a result of the unlawful
conduct, because the deterrent value of doing so was outweighed by the legitimate
interests of effective law enforcement.
A hallmark of all of those cases, however, has been that the situations
presented have been well-defined by clearly marked boundaries. In several of
these cases, police reasonably relied upon either information or legal authorization
that had been provided by a third party, when there was no apparent reason to doubt
the reliability of that information or the validity of the official acts. Thus, this
Court held that the exclusionary rule does not apply when police rely on
information provided by an employee of a court, Arizona v. Evans, 514 U.S. 1
9
(1995), or by an employee of the sheriff’s department, Herring v. United States,
555 U.S. 135 (2009). Nor does the exclusionary rule apply when police rely on a
search warrant issued by a neutral magistrate, United States v. Leon, 468 U.S. 897
(1984), or on a statute that authorized certain conduct by police. Illinois v. Krull,
480 U.S. 340 (1987).
In three other cases, this Court has held that the exclusionary rule does not
apply when police acted unlawfully based on their own assessment of what the law
permitted. Each of those cases, however, also involved a well-defined situation, so
that the scope of the exception can easily be confined, and does not call into
question the applicability of the exclusionary rule in other situations.
Davis, for example, involved case law that “[f]or years [had been] widely
understood to have set down a simple, bright-line rule” upon which police relied.
Davis, 131 S. Ct. at 2424. The rule stated that “when a policeman has made a
lawful custodial arrest of the occupant of an automobile, he may, as a
contemporaneous incident of that arrest, search the passenger compartment of that
automobile.” New York v. Belton, 453 U.S. 454, 460 (1981). Because a police
officer cannot be faulted for following the law in effect at the time he acted, there
10
was little deterrent value in excluding the evidence he discovered, regardless of
how the law might have changed afterwards.
Similarly, in Michigan v. Hudson, 547 U.S. 586 (2006), this Court held that
the failure of police to “knock and announce” before entering a residence to execute
a search warrant did not require exclusion of the evidence discovered. There
seldom will be any doubt regarding whether police did or did not comply with the
“knock and announce” requirement of the Fourth Amendment. And, in Groh v.
Ramirez, 540 U.S. 551 (2004), in which police acted pursuant to a search warrant,
this Court emphasized that when a police officer “himself prepared the warrant”
that plainly violated the Fourth Amendment’s particularity requirement, he could
not claim that he reasonably relied on a “Magistrate’s assurance that the warrant …
was valid.” Groh, 540 U.S. at 564. This Court emphasized that because the
particularity requirement is set forth in the text of the Fourth Amendment, “no
reasonable officer could believe that a warrant that plainly did not comply with that
requirement was valid.” 540 U.S. at 563.
This case, however, is very different. The precedents cited by the Ninth
Circuit to support its holding that police had reasonably relied in conducting the
warrantless surveillance involved may have established a “bright line” rule for the
11
use of a beeper, but those precedents did not establish a “bright line” rule with
respect to the warrantless use of GPS technology. A much different situation is
presented when police have acted in compliance with precedents that only arguably
authorized the conduct contemplated.
B. The governing law was unsettled at the time police acted.
The Ninth Circuit panel was correct that, at the time police acted, its own
precedent had established that the mere act of attaching a tracking device to a
suspect’s car without a warrant was not a search or seizure within the meaning of
the Fourth Amendment. United States v. McIver, 186 F.3d 1119, 1126-27 (9th Cir.
1999). Because there was no questioning that clear, authoritative precedent, police
acted in good faith when they attached the devices to the underside of petitioner’s
vehicle. This Court later determined in Jones that the Ninth Circuit was wrong in
McIver, because even what the circuit court considered to be a trivial trespass
constituted an infringement upon the owner’s security in his “effect” under the
Fourth Amendment, as long as the purpose of the trespass was to obtain
information. Jones, 132 S. Ct. at 949. Under Davis, police nonetheless acted in
good faith under the law as it existed at the time, and the exclusionary rule does not
apply.
12
That was not the case, however, with respect to the warrantless use of the
GPS tracking devices. Contrary to the Ninth Circuit’s view, the law governing the
warrantless use of such devices was actually unsettled.
First, the two cases cited by the panel involved factually distinguishable
situations. The device those cases addressed, in 1976 and 1978, did not use GPS
technology, but rather was a “beeper” – the same device whose warrantless use this
Court approved in United States v. Knotts, 460 U.S. 276 (1983). A beeper is a
primitive tool by today’s standards. It does not either store information or transmit
its precise location. Rather, it only “emits periodic signals that can be picked up by
a radio transmitter.” Knotts, 460 U.S. at 277. The signal provides only an
estimate of the receiver’s distance and direction from the transmitter, and requires
police continuously to remain within transmission-receiving distance.
A person traveling by car in public does randomly and fleetingly display his
location to a number of unassociated people. He knowingly takes the risk that
someone who knows him will see him arrive at some location when he would prefer
to keep that information secret. He also takes the risk that someone in another car
will follow him (although when he travels to a remote location, as petitioner did, it
becomes more difficult for the person following to avoid detection). That type of
13
information is not significantly different than the information police derive by use
of a beeper hidden inside a suspect’s car.
Surveillance with a GPS tracking device, in contrast, enables police easily to
obtain much more comprehensive and precise locational information. The device
enables this information to be collected and recorded automatically over a
prolonged period of time with little effort or cost. It also discloses exactly how
much time a person has spent at each location. Accordingly, neither Knotts nor the
circuit court precedents the lower court cited “specifically [authorized the]
particular police practice” involved. Davis, 131 S. Ct. at 2429 (emphasis added).
Moreover, the “good faith” exception to the exclusionary rule “requires
police to have a reasonable knowledge of what the law prohibits.” Leon, 468 U.S.
at 920 n.20. Here, because of warnings this Court sounded in Knotts, and again in
a later, watershed case it decided after the circuit court precedents cited by the
Ninth Circuit, but several years before the police acted, they should have known
that the relative sophistication of the sense-enhancing technology involved could
affect the lawfulness of its warrantless use.
This Court’s warning in Knotts came in response to the defendant’s argument
that upholding the warrantless, one-time use of a beeper to follow a suspect to his
14
destination would also mean that “twenty-four hour surveillance of any citizen of
this country will be possible, without judicial knowledge or supervision.” Knotts,
460 U.S. at 283 (quoting respondent’s brief). This Court responded that “if such
dragnet-type law enforcement practices as respondent envisions should eventually
occur, there will be time enough then to determine whether different constitutional
principles may be applicable.” Knotts, 460 U.S. at 284. This Court later referred
in Jones to Knotts as having “reserved” the question of whether different principles
might apply to the type of law-enforcement practices “that GPS tracking made
possible here.” Jones, 132 S. Ct. at 952 n.6.
To be sure, reserving judgment on a question is not the same as deciding it.
But this Court is not in the practice of including irrelevancies in its opinions. Its
reservation in Knotts at the least sounded a clear warning that a different, more
comprehensive type of surveillance might require a different legal analysis.
As it turns out, a majority of this Court later agreed that, even under the
standard “legitimate expectation of privacy” analysis, a different result does follow,
when surveillance using GPS technology is conducted. Five justices of this Court
– those who joined in the concurring opinion of Justice Alito in Jones, plus Justice
Sotomayor, who separately concurred – agree that, at least with respect to
15
ordinary offenses, when GPS surveillance is conducted over an extended period of
time, a search warrant is required. Specifically distinguishing the type of
surveillance approved in Knotts, Justice Alito’s opinion states that
longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not secretly monitor and catalogue every single movement of an individual’s car for a very long period of time.
Jones, 132 S. Ct. at 964 (Alito, J., concurring in the judgment). Justice
Sotomayor, although joining in the Court’s trespass analysis, agreed with that
portion of Justice Alito’s opinion, 132 S. Ct. at 955, and elaborated at greater length
on the type of privacy interests that may be violated by prolonged GPS surveillance.
Jones, 132 S. Ct. at 955-56 (Sotomayor, J., concurring).
Moreover, in Kyllo v. United States, 533 U.S. 27 (2001), this Court adopted
the principle of “otherwise imperceptiblity.” 533 U.S. at 35 n.5. Under that
principle, the warrantless use by police stationed in a public place of sophisticated,
sense-enhancing technology, “not in general public use,” 533 U.S. at 40, can
change what otherwise would be “plain view” observation into a search subject to
the Fourth Amendment.
16
This Court’s analysis in Knotts, like the analysis applied in the two Ninth
Circuit precedents, was based on two premises, which were both undermined by
Kyllo. First, the Court in Knotts reasoned that the defendant had no protected
privacy interest, because when he “traveled over the public streets he voluntarily
conveyed to anyone who wanted to look the fact that he was traveling over
particular roads in a particular direction, the fact of whatever stops he made, and the
fact of his final destination when he exited from public roads onto private
property.” Knotts, 460 U.S. at 281-82. Second, the Court concluded that
“[n]othing in the Fourth Amendment prohibited the police from augmenting the
sensory faculties bestowed upon them at birth with such enhancement as science
and technology afforded them in this case.” Id., 460 U.S. at 282.
The first of these premises was brought into question, and the second flatly
contradicted by Kyllo. First, the defendant in Kyllo, like the defendant in Knotts,
“voluntarily conveyed to anyone who wanted to look” certain information about his
activities. At the time the police obtained information about the suspect in Kyllo,
both the information, in the form of certain levels of infrared radiation, and the
police, were located in a public place. The suspect in Kyllo had voluntarily sent
the infrared energy he produced out into the public realm, where anyone, including
17
the police, could access it, as long as they knew how. There was no physical
intrusion whatsoever into the defendant’s home, and a search resulted only because
the information he sent out into public could be perceived only by use of
technology not in general public use, under the principle of “otherwise
imperceptibility.”3
In Kyllo police obtained information about the inside of a suspect’s home,
which is the “prototypical … area of protected privacy.” Kyllo, 533 U.S. at 34.
But this Court in Kyllo specifically noted, in the course of discussing how the use of
sense-enhancing technology by police might intrude on protected privacy interests,
that the test “may be difficult to refine … when the search of areas such as
telephone booths, automobiles, or even the curtilage and uncovered portions of
residences is at issue.” Kyllo, 533 U.S. at 34. Certainly, people out in public
might have a diminished privacy interest, but that does mean they have none
whatsoever. Two people conversing privately at a restaurant, or in a secluded area
3 Thus, a person who stands naked in his home in front of a window also sends electromagnetic radiation out into public – in the visible-light, rather than infrared spectrum – but cannot complain when he is charged and convicted of public indecency. See State v. Louis, 672 P.2d 708, 710-11 (Or. 1983) (affirming such a conviction, while noting that a different result might obtain if police made “technologically enhanced efforts” to see into a home).
18
of a public park, might legitimately be entitled to expect that their conversation will
not be intercepted by a hidden or high-powered, parabolic microphone. After all,
the suspect in another watershed Fourth Amendment case was also out in public (or
at least in a semi-public phone booth made “partly of glass”) at the time police
intercepted information he was conveying to others. Katz v. United States, 389
U.S. 347, 352 (1967), overruling Olmstead v. United States, 277 U. S. 438 (1928).
In addition, by adopting the “otherwise imperceptibility” principle, Kyllo
broke with a long line of case law addressing and approving the warrantless use by
police of sense-enhancing devices. For years before Kyllo, this Court had
considered such technology only as a boon to efficient law enforcement. See, e.g.,
Illinois v. Caballes, 543 U.S. 405 (2005) (drug-sniffing dog); Dow Chemical v.
United States, 476 U.S. 227, 229 (1986) (use of “precision aerial mapping
camera”); Smith v. Maryland, 442 U.S. 735 (1979) (pen register); United States v.
White, 401 U.S. 745 (1971) (use of radio transmitter hidden on person of informant
who converses with suspect); United States v. Lee, 274 U.S. 559, 563 (1927)
(searchlight). That is no longer the case after Kyllo. Courts and police thereafter
had to determine whether certain technology is, or is not in “general public use.” If
19
such technology is not in general public use, the principle of “otherwise
imperceptibility” must be applied and a search may have been conducted.
The police in this case therefore did not act in objectively reasonable reliance
– at least to the same extent the police did in the Davis case when they relied on a
“bright line” rule – when they relied either on Knotts or the two circuit court
precedents, when the device they decided to use was so different, and the
information it provided so much more comprehensive and detailed. After Kyllo,
police acted no more reasonably in failing to appreciate the difference between a
beeper and a GPS device than they would have in ignoring the difference between
use by police of a flashlight to enhance their perception, and use of one of the
high-tech devices mentioned in Kyllo, such as a “handheld ultrasound” system.
Kyllo, 533 U.S. at 36 n.3. This is not to argue that the police were wrong, or to
require prescience on their part in failing to predict how five Justices of this Court
would later regard the type of surveillance in question. But it shows that the law
was unsettled, and that a reasonably well informed police officer should have
known that it was.
20
C. The Ninth Circuit also erred by ignoring certain salient circumstances in assessing whether police officers acted in objectively reasonable reliance upon the precedents it cited.
The Ninth Circuit erred not only in its assessment of controlling law at the
time police acted, but also in ignoring other important aspects of the search police
conducted in this case. When determining whether or not police acted in good
faith, courts must assess their conduct “in light of all the circumstances.” Herring,
555 U.S. at 145 (2009) (quotation marks omitted). The Ninth Circuit gave
insufficient attention to two of the salient circumstances that were present here.
First, it neglected to consider that, in each of this Court’s “good faith” cases,
police were required to make what this Court called a “hurried judgment.” Krull,
480 U.S. at 351. When police are required to act in the heat of the moment – for
example, in deciding whether to take a fugitive into custody, or to search an
automobile after an arrest, or to “knock and announce” before entering a residence
to execute a search warrant – they are reasonably entitled to a measure of deference
when a court later determines whether an officer acted in “objectively reasonable
reliance” upon precedent or the official acts of others. No such deference is
appropriate here, when police did not have to act hurriedly, but rather had time to
21
deliberate calmly before deciding whether or not to employ a certain surveillance
technique.
Second, the Ninth Circuit also neglected to consider whether police were
entitled to less deference when, in effect, it was not they who decided to use that
technique, but the lawyer whose approval they obtained. The Government argued
below that the fact that police acted with the advice of counsel in deciding to use
the GPS device to monitor petitioner’s movements made that determination all the
more reasonable. On the one hand, police do act reasonably when they consult
with counsel, and that is how one circuit court has weighed such a factor. United
States v. Brown, 951 F.2d 999, 1005 (9th Cir. 1991). But getting advice from an
Assistant United States Attorney is different than relying on a warrant issued by a
neutral magistrate, because “[j]udges and magistrates are not adjuncts to the law
enforcement team.” Krull, 480 U.S. at 348, quoting Leon, 468 U.S. at 917. Here,
it was the determination of the entire “law enforcement team,” which included both
the police officers and, as an “adjunct” member, their attorney, that should be
assessed to determine whether the team acted in objectively reasonable reliance
upon binding judicial precedent.
22
Under those circumstances, the law-enforcement team should be held to have
acted with the benefit of not only a “reasonable” knowledge, Leon, 468 U.S. at 920
n.20, but a comprehensive knowledge of the governing legal principles and case
law. This standard would require awareness of the warning in Knotts about
“twenty-four hour surveillance” and a thorough knowledge of Kyllo and how it
arguably changed the analysis of the warrantless use by police of sophisticated,
sense-enhancing technology.
D. Applying the “objectively reasonable reliance” exception when the law is unsettled endangers continued application of the exclusionary rule.
For the foregoing reasons, the governing law in existence at the time police
acted was unsettled. No precedent clearly and authoritatively permitted the
particular conduct under consideration. Accordingly, the circuit court’s holding
that the “reasonable reliance” exception to the exclusionary rule applies under those
circumstances constitutes a dangerous, unwarranted extension of that exception.
Under the Ninth Circuit’s decision, the good-faith exception applies not only when
police act in accordance with a “bright line” rule, but also when the pertinent
precedents are subject to significant doubt and only arguably authorized the
particular conduct involved. Because there are no clearly defined boundaries to the
situation presented, as there have been in all of this Court’s “good faith” decisions
23
thus far, the Ninth Circuit’s holding threatens the continued vitality of the
exclusionary rule as a protection enjoyed by all citizens against unlawful police
intrusion into protected areas of privacy.
Fourth Amendment law is litigated prodigiously, and sometimes the
particular facts, down to minute detail, can make the difference between lawful and
unlawful conduct by police. See, e.g., Arizona v. Hicks, 480 U.S. 321 (1987)
(police officer lawfully present in apartment acted unlawfully by turning a stereo
component to examine its serial number). As noted by a dissenting Justice in
Davis, “Fourth Amendment precedents frequently require courts to ‘slosh’ their
way through the factbound morass of ‘reasonableness.’” Davis, 131 S. Ct. at 2427
(Justice Breyer, dissenting), quoting Scott v. Harris, 550 U.S. 372, 383 (2007).
With thousands of circuit court and state-court precedents to choose from,
addressing a wide variety of factual circumstances, it will be the rare case when
lawyers representing the police cannot show, after the fact, that the police acted
with at least an arguable belief that their conduct complied with the Fourth
Amendment.
This case therefore presents a question of the utmost importance to the
continued use of the exclusionary rule as the primary remedy for a citizen who may
24
be charged with a crime based on evidence that police obtained by violating the
citizen’s Fourth Amendment rights. The decision, now applicable in the nine
states in the Ninth Circuit, which holds about one-fifth of our Nation’s population,
creates a real risk that it will, if followed in other circuits, eliminate application of
the exclusionary rule in all but egregious violations by police. At the least, the
Ninth Circuit’s decision threatens to create a new overlay to a significant amount of
litigation under the Fourth Amendment, under which appellate courts will have to
decide important privacy issues on a “one step removed” basis; that is, the question
will usually become not whether police actually violated the Fourth Amendment,
but only whether they acted in objectively reasonable reliance upon precedents.
And, if the standard is to be whether case law arguably authorized their conduct,
that will not be a difficult standard to meet.
In addition, this Court arguably used language in Herring and Davis that
went beyond what was required to decide those cases. In Herring, police
reasonably relied on information contained in a computer database of arrest
warrants. Then, out of an abundance of caution, they requested an actual copy of
the warrant they were about to execute. They learned only minutes too late that the
computer database was in error, because someone had neglected to enter the
25
withdrawal of the warrant into the database. And in Davis, police relied on a
“bright line” rule. Yet, this Court may have used over-generalized language in
explaining why the exclusionary rule should not apply in those situations. In
Herring it referred to the “flagrancy” of the police conduct involved in prior cases,
555 U.S. at 506-07, to whether police acted “recklessly,” 555 U.S. at 507 and 509,
and to a required assessment of a police officer’s “culpability.” Herring, 555 U.S.
at 508. Such terminology seems out of place when what is happening is actually
an assessment of what case law does or does not prohibit. Although the court
below did not rely on that language, it may have also created a risk that courts will
apply the “reasonable reliance” exception in cases other than when the controlling
law is clear.
An incentive should not be created for police to err on the side of taking
aggressive action, and to let the lawyers sort it out later. As this Court has said, in
a case addressing whether a new rule under the Fourth Amendment should be
applied retroactively:
If, as the Government argues, all rulings resolving unsettled Fourth Amendment questions should be nonretroactive, then, in close cases, law enforcement officials would have little incentive to err on the side of constitutional behavior. Official awareness of the dubious constitutionality of a practice would be counterbalanced by official certainty that, so long as the Fourth Amendment law in the area
26
remained unsettled, evidence obtained through the questionable practice would be excluded only in the one case definitively resolved the unsettled question.
United States v. Johnson, 457 U.S. 537, 561 (1982). Under the circuit court’s
ruling, when police know that evidence they discover will be suppressed only if
their conduct lacks any arguable support in case law, they will have a lesser
incentive to err on the side of protection of a citizen’s rights under the Fourth
Amendment. Taking a calculated risk that their attorneys will not be able to find
any legal support authorizing their conduct would not necessarily mean that they
acted with “deliberate” or “reckless” or “grossly negligent” disregard for Fourth
Amendment rights, but only that they made a good-faith, but erroneous judgment
regarding the meaning of case law in what can be an exceedingly complex area.
If the Ninth Circuit’s expansive view of what constitutes “binding judicial
precedent” is allowed to stand, it could potentially have far-reaching consequences.
Under the Fourth Amendment, the dividing line between the state, acting through
its police force, and a free citizenry out in public, is defined primarily by the
meaning of “reasonable suspicion” that a person is involved in criminal activity,
because that is what authorizes a police officer to stop a person and make a limited
search. Terry v. Ohio, 392 U.S. 1 (1968). Police make such determinations
27
hundreds of thousands of times every year. In many of those cases a stop leads to
an arrest when police discover evidence of crime after conducting the limited
investigation permitted under Terry, and courts later review the lawfulness of the
stop in connection with a motion to suppress the evidence discovered on the ground
that it followed what was an unlawful stop. In those cases police and reviewing
courts confront a multiplicity of factual circumstances. Even so, as this Court has
recognized, whether reasonable suspicion justifying an investigatory stop exists is,
in part, a legal determination, involving case law and fact-matching. Ornelas v.
United States, 517 U.S. 690, 696-97 (1996).
It is only because of the exclusionary rule that the lawfulness of these stops
has been litigated so extensively, so that the location of this vitally important
boundary line has, through hundreds of appellate-court decisions, been refined
down to the minutest detail. If suppression of evidence does not automatically
follow when police are later shown to have violated that important boundary, but
only occurs when they are shown to have committed a flagrant violation, or when
case law cannot be found that even arguably supports their conduct, the law will be
changed dramatically, and in response to that change, police conduct will also
change.
28
Under the Ninth Circuit’s overly broad conception of “binding precedent”
upon which police are entitled to rely without risking the suppression of evidence,
this boundary line become less well defined, wasting those years of refinement.
Perhaps more important, that now-blurred line will be moved in the direction of law
enforcement, and away from protection of the right of persons out in public to be
free from police interference. There will be many fewer legal challenges to those
stops by criminal defendants, but that benefit will come at a substantial cost.
This case well illustrates why the situations in which the “good faith”
exception to the exclusionary rule will be applied need to be defined with “clear
line[s].” Herring, 555 U.S. at 516 (Breyer, J., dissenting). Davis draws such a
line, but only if the exception it applied is limited to when police act in accordance
with a “bright line” rule. The Ninth Circuit’s construction of the “objectively
reasonable reliance” exception breaches that clear limit, with potentially harmful
consequences.
It is too soon since Davis for any circuit court split to have developed.4 But
because of the importance of the exclusionary rule to the development of the law
4 District courts, on the other hand, have split regarding whether the “good faith” exception to the exclusionary rule applies to data gathered by warrantless GPS surveillance. Some district courts outside the Ninth Circuit have, applying
29
under the Fourth Amendment, and the uncertainty created by the divergence
between the facts and language in Herring and Davis, this Court should not wait for
such a split to develop before providing needed clarity. This case would serve as a
useful vehicle to provide such clarity. In such a situation, this Court should heed
the 125-year-old warning of Justice Bradley, who wrote in Boyd v. United States,
116 U.S. 616, 635 (1886), that “[i]t is the duty of courts to be watchful for the
constitutional rights of the citizen, and against any stealthy encroachments thereon.
Their motto should be obsta principiis.” That is, this Court should “Withstand or
resist the beginnings,” BALLENTINE’S LAW DICTIONARY (3d ed. 1969), p. 877, or in
other words, nip it in the bud.
Davis, found that the warrantless use of a GPS tracking device to conduct surveillance, although unlawful, does not require exclusion of evidence. United States v. Oladosu, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS 117583 (D.R.I. No. CR 10-056-01-S, Aug. 21, 2012); United States v. Ford, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS 155208 (E.D. Tenn. No. 11-CR-42, Oct . 30, 2012). Others have concluded that the “good faith” exception to the exclusionary rule does not apply to data gathered through warrantless GPS surveillance. United States v. Lee, 862 F. Supp. 2d 560 (E.D. Ky. 2012); United States v. Ortiz, ___ F. Supp. 2d ___, 2012 U.S. Dist. LEXIS 101245 (E.D. Pa. No. CR 11-251 July 20, 2012) (rejecting good-faith exception in part because of the difference between beeper and GPS device); United States v. Katzin ___ F.Supp.2d ___, 2012 U.S. Dist. LEXIS 65677 (E.D. Pa. No. CR 11-226 May 9, 2012).
30
E. Review of this case would also permit consideration of the important underlying question, unaddressed in Jones of whether warrantless GPS surveillance over a prolonged period violates the Fourth Amendment.
In Leon, this Court noted that, although the Government’s petition for
certiorari asked this Court to review only whether the exclusionary rule applied
when police acted in good faith, it was “undoubtedly … within our power to
consider” the underlying question on its merits, under what is now this Court’s Rule
24.1(a). Leon, 468 U.S. at 905. This case accordingly would permit this Court
also to address the important question left undecided in Jones: whether
warrantless use of a GPS tracking device violates the Fourth Amendment, when
police commit no trespassory violation.
In urging this Court to review Jones, the Government stated the question
presented as whether the warrantless “use” of a GPS tracking device to monitor a
vehicle’s movements violated the Fourth Amendment, and said that “[p]rompt
resolution of this conflict is critically important to law enforcement efforts
throughout the United States.” Cert. Petition, United States v. Jones, O.T. 2011,
No. 10-1259, at pp. I, 12. Presumably because Jones prohibits the warrantless
attachment of GPS devices to suspicious vehicles, the use of such devices by the
Government has decreased dramatically, because it was the ease of attachment
31
device that made use of the device so prevalent.5 Given how difficult it is to trick a
driver into allowing a tracking device into his car, the method used by police in
Knotts, that alternative will not be used as frequently.
But police may discover other, nontrespassory methods by which they can
secretly hide a GPS device in a person’s car, or even on his person, without
committing any trespass. And there are other means by which police can use GPS
technology to monitor the travels of a suspect. Third parties, such as cell-service
providers and companies like Google, LoJack, and OnStar collect and store vast
amounts of location information regarding their customers. Many mobile phones
now carry embedded GPS technology, and police may be able to access historical,
as well as prospective location information from these third parties under a
less-than-probable-cause showing, by obtaining a court order under the Stored
Communications Act, 18 U.S.C. §2703(d). It has been recently been reported that
cell services providers alone have responded to 1.3 million demands for subscriber
information from law enforcement agencies seeking, among other data, “caller
5 See Ariane de Vogue, Supreme Court Ruling Prompts FBI to Turn Off 3,000 Tracking Devices, ABC News website (Mar. 7, 2012), available at http://abcnews.go.com/blogs/politics/2012/03/supreme-court-ruling-prompts-fbi-to-turn-off-3000-tracking-devices.
32
locations.” Eric Lichtblau, More Demands on Cell Carriers in Surveillance, NY
Times (July 8, 2012).
Because of the basis upon which this Court decided Jones, this separate issue
was left undecided. Accordingly, the split between state and circuit courts upon
which the Government relied in seeking certiorari in Jones still exists. Cert.
Petition, United States v. Jones, O.T. 2011, No. 10-1259, at pp. 20-23. Review of
this case would permit resolution of this other important question.
CONCLUSION
The petition for a writ of certiorari should be granted.
Respectfully submitted.
Harrison LATTO Law Office of Harrison Latto 1631 NE Broadway, No. 533 Portland, Oregon 97232 Telephone: (503) 223-0783 E-mail: [email protected]
TIMOTHY R. VOLPERT Davis Wright Tremaine LLP 1300 S.W. Fifth Avenue Suite 2400 Portland, Oregon 97201-5610 Telephone: (503) 241-2300 E-mail: [email protected]
Attorneys for Petitioner
