United States District Court, M.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS UNITED STATES DISTRICT JUDGE.
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.
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.
STANDARD OF REVIEW
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).
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.
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.)
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.)
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.)
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.)
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.
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
The Dothan Police Department's monitoring of the GPS
tracker attached to Mr. Howard's borrowed truck was not a
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.
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
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.
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 ...