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United States v. Howard

United States District Court, M.D. Alabama, Southern Division

November 15, 2019

UNITED STATES OF AMERICA
v.
JOSHUA DRAKE HOWARD

          MEMORANDUM OPINION AND ORDER

          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 reasonable suspicion for his February 22, 2018 stop (Doc. # 61, at 5-14) are due to be overruled and the Recommendation adopted with modifications. His objection relating to his July 13, 2018 stop (Doc. # 61, at 14-15) is due to be overruled and the Recommendation adopted without modification. The Recommendation's findings of fact and its conclusions of law regarding installation of the GPS device and probable cause to search the truck (Doc. # 50, at 2-6, 7-10, 19-20) are due to be adopted without modification.

         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. 28 U.S.C. § 636(b)(1). The district court “may accept, reject, or modify the recommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions.” Fed. R. Crim. P. 59(b)(3). De novo review requires that the district court independently consider factual issues based on the record. Jeffrey S. ex rel. Ernest S. v. State Bd. of Educ., 896 F.2d 507, 513 (11th Cir. 1990). If the Magistrate Judge made findings based on witness testimony, the district court must review the transcript or listen to a recording of the proceedings. Id. The district court cannot reject a credibility determination without rehearing live testimony. United States v. Powell, 628 F.3d 1254, 1257 (11th Cir. 2010). But the district court may, without a new hearing, modify findings in a way consistent with the Magistrate Judge's credibility determination. See Proffitt v. Wainwright, 685 F.2d 1227, 1240-41 (11th Cir. 1982).

         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.)

         At Investigator Tye's request, the CI consented to the Dothan Police Department placing a GPS tracker on her truck on February 21, at 2:37 p.m. (Doc. # 42, at 8-9); (Doc. # 38, Gov. Ex. # 4.) Mr. Howard took possession of the truck roughly two hours later, at which point Investigator Tye began monitoring the GPS device. The GPS device transmitted the truck's location every five seconds while the truck was in motion. (Doc. # 42, at 11-12); (Doc. # 38, Def. Ex. # 3.) Around 7:30 p.m., Investigator Tye personally confirmed that the truck was parked at the first location where it stopped, but he did not see Mr. Howard. (Doc. # 42, at 12- 14, 28-29.) Investigator Tye monitored the GPS device's movements-but conducted no visual surveillance-over the next (roughly) nineteen hours as the truck made several stops, including in Phenix City, and then began driving back toward Dothan. (Doc. # 42, at 13-16.)

         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 police station, where he waived his Miranda rights and made incriminating statements. (Doc. # 38, Def. Ex. # 2, at 3.)

         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 on July 13, 2018. (Doc. # 61.) Concluding that the GPS monitoring and related stop were lawful, the court need not reach Mr. Howard's fourth objection that his incriminating statements on February 22, 2018, should be excluded as the fruit of an illegal search and/or seizure. (Doc. # 61, at 14.) Additionally, this opinion will only address those portions of the Recommendation to which Mr. Howard has objected. All unobjected-to portions of the Recommendation-namely its legal conclusions relating to the February 21 installation of the GPS device and probable cause to search the truck (Doc. # 50, at 7-10, 19-20)-are due to be adopted without further discussion.

         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.” U.S. Const. amend IV. Thus, there must be a “search” or a “seizure” to trigger the Fourth Amendment's protections. Mr. Howard argues that he was searched because he had a reasonable expectation of privacy in his movements while operating the borrowed truck. (Doc. # 61, at 6.) Under the principles set forth in United States v. Knotts, 460 U.S. 276 (1983), Mr. Howard did not have a reasonable expectation of privacy, so no search occurred. The simplicity of that conclusion fails to capture the complexity of getting there.

         1.

         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 contradictory guidance as to whether non-trespassory GPS vehicle monitoring, as in this case of a borrowed truck, is an unreasonable search under the Fourth Amendment.

         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 ...


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