United States v. Baez , 744 F.3d 30 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1025
UNITED STATES OF AMERICA,
Appellee,
v.
JOSE L. BAEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Lynch, Chief Judge,
Stahl and Lipez, Circuit Judges.
Gordon W. Spencer for appellant.
Mark T. Quinlivan, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief, for
appellee.
February 28, 2014
STAHL, Circuit Judge. In United States v. Sparks, 711
F.3d 58 (1st Cir. 2013), we held that the warrantless installation
of a global positioning system (GPS) device on a defendant's
automobile and the use of that device to monitor his and a co-
defendant's movements for eleven days fell within the good-faith
exception to the exclusionary rule, because the monitoring had
occurred before the Supreme Court decided that the installation and
use of a GPS tracker on a car constitutes a Fourth Amendment
search. See United States v. Jones, 132 S. Ct. 945 (2012). Today,
we are faced with another instance of pre-Jones warrantless GPS
tracking, but of a significantly longer duration. We nonetheless
conclude that this case falls within the rule laid out in Sparks,
and we therefore affirm.
I. Facts & Background
Defendant-appellant Jose Baez was charged with, and
ultimately pled guilty to, four counts of arson. He challenges the
district court's denial of his motion to suppress evidence that the
Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) obtained
by monitoring his black 1989 Chevrolet Caprice using a GPS device.
The GPS tracking began in August 2009 and continued for 347 days.1
1
We take this number from the district court's opinion. See
United States v. Baez, 878 F. Supp. 2d 288, 292 (D. Mass. 2012).
Baez has described the monitoring as having lasted for 346 days,
"from August 27, 2009 to August 8, 2010," but because the GPS
device was apparently still on his car on August 9, 2010 (the date
of the final fire that led to his arrest), we will use the district
court's calculation.
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The ATF decided to track Baez's car as a result of two fires that
occurred earlier that year: the first on April 29, 2009, at Jamaica
Plain Auto Body in Jamaica Plain, Massachusetts, and the second on
July 31, 2009, in a brownstone building in Boston that housed both
condominium units and a dentist's office known as Back Bay Dental.
At the scenes of both fires, surveillance cameras
captured and recorded the image of an older-model, dark-colored
Chevrolet Caprice with silver trim, a light-colored steering wheel
cover, and a silver emblem located on the driver's side C-pillar of
the car. Using the surveillance footage, ATF agents concluded that
the car had been manufactured sometime between 1986 and 1989. They
then obtained, from the Massachusetts Registry of Motor Vehicles
(RMV), a list of all of the dark-colored Chevrolet Caprices
manufactured during that time period and registered to addresses in
the Boston area. The agents located and observed each of the
thirty-eight vehicles on that list and, according to the district
court, determined "that a Chevrolet Caprice belonging to Baez,
unlike most of the other vehicles reviewed, matched the
distinguishing characteristics of the vehicle in the surveillance
tapes." United States v. Baez, 878 F. Supp. 2d 288, 290 (D. Mass.
2012).
The ATF also discovered that Baez was the only owner of
a Chevrolet Caprice on the RMV list who had been a patient at Back
Bay Dental. The office manager at Back Bay Dental reported that
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Baez had become angry in June 2009 when he had to have his veneers
re-cemented and had threatened not to pay for the procedure. In
addition, the ATF investigation revealed that Baez had been a
customer at Jamaica Plain Auto Body, had been dissatisfied with the
shop's work on a Chevrolet Impala in the summer of 2008, and had
filed an unsuccessful claim against the shop in small claims court.
Thus, on August 27, 2009, acting without a warrant, ATF
Agent Brian Oppedisano attached a GPS device to Baez's Caprice
while it was parked on a public road in front of Baez's home. The
ATF set up a "virtual perimeter" around Baez's residence and
programmed the GPS device to send a text message to Agent
Oppedisano whenever the Caprice traveled outside that perimeter;
Agent Oppedisano would then determine whether physical surveillance
of the Caprice was necessary. Agent Oppedisano testified that he
looked at the GPS location logs once every day or two, and that
agents conducted periodic physical surveillance of the Caprice
(even when it did not travel outside the perimeter) to ensure that
it was actually located where the GPS device said it was.
As it turned out, Baez drove the Caprice relatively
infrequently; he appears to have used another car (an Acura MDX) as
his primary vehicle.2 During the nearly year-long monitoring
2
Agent Oppedisano also installed a GPS device on the Acura in
January 2010 but removed that device in April 2010 after concluding
that Baez was not using the car "to scout out locations for
arsons." Baez, 878 F. Supp. 2d at 291 n.3.
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period, the Caprice traveled outside the perimeter on just twenty-
six days, six of which were during the week before the final fire
that led to Baez's arrest.
That fire occurred on August 9, 2010, at 11 Firth Road in
Roslindale, Massachusetts. At 3:21 a.m. that day, Agent Oppedisano
received a text message alerting him that the Caprice had left the
perimeter. From a website available to him, Agent Oppedisano
determined that the car was stopped near 5 Bexley Road in
Roslindale, which runs parallel to Firth Road. Because this was an
unusual travel pattern for Baez, and given that the April 2009 and
July 2009 fires had occurred at a similar time of day, Agent
Oppedisano alerted law enforcement and directed officers to the
area. At around the same time, a fire was reported at 11 Firth
Road, a multi-unit home. After being shown a photo array, two of
the residents of 11 Firth Road identified Baez as a man who had
sold them Dominican lottery tickets.
Shortly after the fire was reported, an officer from the
Boston Police Department located Baez in his vehicle in front of
his residence and arrested him. Footage from surveillance cameras
near Baez's home confirmed his travel in the direction of Firth
Road that night, and searches of his person, his car, his
residence, and two garages that he had rented revealed various
materials associated with arson. The searches of Baez's residence
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and one of the garages also tied him to a December 2008 fire at a
Whole Foods grocery store in Cambridge, Massachusetts.
In September 2011, following his indictment, Baez moved
to suppress all of the evidence obtained as a result of the GPS
monitoring of his vehicle. With the consent of both parties, the
district court decided to hold the motion until the Supreme Court
reached its decision in Jones. In January 2012, the Court
announced 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, constitutes a 'search'" for Fourth Amendment
purposes. Jones, 132 S. Ct. at 949 (footnote omitted). The
district court convened a motion hearing and ordered supplemental
briefing. In July 2012, the district court denied Baez's motion to
suppress, concluding that, under Davis v. United States, 131 S. Ct.
2419 (2011), suppression would not serve the purposes of the
exclusionary rule, because, when he installed the GPS device and
engaged in the monitoring, Agent Oppedisano had "a good faith basis
to rely upon a substantial consensus among precedential courts."
Baez, 878 F. Supp. 2d at 289.
After Baez filed his notice of appeal but before the
parties briefed the case, we decided Sparks, in which federal
agents had tracked a defendant's car for eleven days using a GPS
device, without a warrant and before Jones was decided. 711 F.3d
at 60-61. We concluded that the good-faith exception to the
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exclusionary rule applied because, at the time that the GPS
surveillance occurred, settled, binding precedent in the form of
United States v. Knotts, 460 U.S. 276 (1983), and United States v.
Moore, 562 F.2d 106 (1st Cir. 1977), authorized the agents'
conduct. Sparks, 711 F.3d at 67. The question before us today is
whether those same cases authorized the use of the GPS device on
Baez's car.
II. Analysis
Because Baez challenges the district court's legal
conclusion that suppression was not warranted under the
exclusionary rule, our review is de novo. See United States v.
Ryan, 731 F.3d 66, 68 (1st Cir. 2013). We begin by briefly
sketching the relevant legal landscape; for a more detailed
exposition of the case law, we refer the reader to Sparks. See 711
F.3d at 65-67.
"The purpose of the exclusionary rule 'is to deter future
Fourth Amendment violations.'" Id. at 63 (quoting Davis, 131 S.
Ct. at 2426); see also United States v. Thomas, 736 F.3d 54, 60
(1st Cir. 2013) (noting that, under Herring v. United States, 555
U.S. 135 (2009), the exclusionary rule is only available "where the
benefits of deterring the police misconduct that produced the
[Fourth Amendment] violation outweigh the costs of excluding
relevant evidence"). When the police engage in conduct that
complies with existing precedent, and the law later changes, "there
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is nothing to deter; the police cannot modify their conduct to
accord with cases not yet decided." Sparks, 711 F.3d at 63. Thus,
in Davis, the Supreme Court held that "searches conducted in
objectively reasonable reliance on binding appellate precedent are
not subject to the exclusionary rule." 131 S. Ct. at 2423-24.
In Sparks, we interpreted that language as requiring
"precedent that is 'clear and well-settled.'" 711 F.3d at 64
(quoting United States v. Davis, 598 F.3d 1259, 1266 (11th Cir.
2010), aff'd, 131 S. Ct. 2419). We went on to examine whether
clear and well-settled precedent authorized the GPS monitoring at
issue in Sparks. That monitoring occurred a little over two years
before the Supreme Court decided, in Jones, that installing a GPS
device on a vehicle and using that device to track the vehicle
constitutes a Fourth Amendment search. We concluded that, before
Jones was decided, two cases governed the installation and use of
a GPS device on a vehicle in this circuit: Knotts, 460 U.S. 276,
and Moore, 562 F.2d 106. Moore addressed the initial "trespass
involved in installing a tracking device on a car," concluding that
it "was, by itself, immaterial for Fourth Amendment purposes."
Sparks, 711 F.3d at 67. As for the subsequent monitoring, we found
that Knotts laid out an "apparent bright-line rule that the Fourth
Amendment is unconcerned with police surveillance of public
automotive movements." Id.
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We paused to address the fact that the monitoring in
Sparks had gone on for eleven days, whereas Knotts involved less
than a day of monitoring. "Knotts did note that abusive 'dragnet
type' surveillance might be governed by 'different constitutional
principles,'" id. (quoting Knotts, 460 U.S. at 284), but we
concluded that "there was no suggestion in the Knotts opinion that
this rather brusque dismissal of the defendant's Orwellian warnings
imposed a concrete temporal limitation on the case's apparently
unqualified holding." Id.Today, we are asked to reexamine the Knotts "dragnet"
language. The crux of Baez's claim is that the GPS monitoring to
which he was subjected was the very kind of abusive surveillance
anticipated in Knotts, rendering that case inapplicable and placing
the ATF's conduct outside the protection of the good-faith
exception. As he describes it, Agent Oppedisano put the GPS device
on Baez's car "indefinitely, or until further notice, to see if he
could get lucky," without any evidence of an ongoing crime or a
reasonable basis to believe that Baez might engage in further
arson. That, he claims, sets his case apart from Sparks, in which
the monitoring period was much shorter and there was reason to
think that the defendant might commit additional robberies.
Baez relies upon the following passage from Knotts:
Respondent . . . expresses the
generalized view that the result of the
holding sought by the government would be that
"twenty-four hour surveillance of any citizen
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of this country will be possible, without
judicial knowledge or supervision." Br. for
Resp., at 9 (footnote omitted). But the fact
is that the "reality hardly suggests abuse,"
Zurcher v. Stanford Daily, 436 U.S. 547, 566
(1978); 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.
460 U.S. at 283-84. At the time of the GPS installation and
monitoring at issue here, the Supreme Court had not provided any
further explanation of that language, and lower courts had offered
varying assessments of its meaning. See, e.g., United States v.
Maynard, 615 F.3d 544, 556-57 (D.C. Cir. 2010) (interpreting Knotts
as having reserved the issue of prolonged surveillance), aff'd sub
nom. Jones, 132 S. Ct. 945;3 United States v. Garcia, 474 F.3d 994,
998 (7th Cir. 2007) (suggesting that Knotts reserved the issue of
mass surveillance).
In the government's view, Sparks's conclusion that the
Supreme Court imposed no "concrete temporal limitation" on its
"apparently unqualified holding" in Knotts forecloses a pre-Jones
Fourth Amendment claim based on the duration of the GPS tracking.
Sparks, 711 F.3d at 67. It is true that Sparks found "scant reason
to think that the duration of the tracking" in Knotts (less than a
3
The D.C. Circuit decided Maynard just three days before the
ATF removed the GPS device from Baez's car. Baez, 878 F. Supp. 2d
at 293. We mention the opinion here not because we believe that it
should necessarily have informed the ATF's conduct, but simply to
point out that the meaning of Knotts's "dragnet" passage was
unclear.
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day) "was material to the Court's reasoning." Id. Sparks also
concluded that the length of the monitoring in that case (eleven
days) was not enough to render Knotts inapplicable for purposes of
the good-faith exception. Id. But Sparks did not say that the
duration of the GPS surveillance could never be relevant for Fourth
Amendment purposes. Nor did Sparks rule out the possibility that
tracking conducted in the pre-Jones era could otherwise be so
abusive in nature as to fall outside the scope of Knotts.4 After
all, Davis requires that a particular police practice be clearly
authorized by judicial precedent, Sparks, 711 F.3d at 64, and
perhaps one could imagine a warrantless GPS investigation so
extensive or indiscriminate that the officers who conducted it
could not fairly be said to have been complying with Knotts. See,
e.g., Garcia, 474 F.3d at 998 (describing the possibility of a
program of "wholesale" or "mass" surveillance).
This, however, is not that case. Contrary to Baez's
claims, Agent Oppedisano was not taking a shot in the dark when he
installed the GPS device on Baez's Chevrolet Caprice; the ATF had
ample reason to suspect that Baez had set the 2009 fires at Jamaica
Plain Auto Body and Back Bay Dental. Specifically, the ATF knew
that: (1) Baez had been a customer at, and had had disputes with,
4
But cf. United States v. Cuevas-Perez, 640 F.3d 272, 279
(7th Cir. 2011) (Flaum, J., concurring) ("Regardless of the precise
contours of Knotts's reservation, . . . I do not believe it invests
lower courts with the authority to depart from the case's
holding."), vacated and remanded, 132 S. Ct. 1534 (2012).
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both businesses; (2) he owned a Caprice with the same
distinguishing features as the one seen on the surveillance tapes
at the scenes of both fires; and (3) he was the only individual the
ATF had identified who fit both of those characteristics. The ATF
also had reason to believe that Baez might engage in further arson.
Given his altercations with both Jamaica Plain Auto Body and Back
Bay Dental in the time period before the fires, Baez exhibited some
of the traits of a serial arsonist, defined (according to an expert
affidavit that is part of the record in this case) as a person who
commits "three or more arsons at separate locations, with a
cooling-off period in between," to relieve stress or exact revenge.
Though the tracking went on for nearly a year, apparently without
any evidence of criminal activity on Baez's part, the record in
this case also establishes that it is not uncommon for a
significant amount of time (often months, but sometimes years) to
pass between a serial arsonist's fires. The particularly lethal
nature of Baez's July 2009 fire provided further cause for concern:
that fire was set in the front vestibule of a residential building
in the middle of the night. In short, as in Knotts, the reality
here "hardly suggests abuse." 460 U.S. at 283 (quoting Zurcher,
436 U.S. at 566).
We need not decide whether the ATF had probable cause, or
reasonable suspicion, to track Baez's car, or whether the existence
of either would excuse Agent Oppedisano's failure to obtain a
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warrant.5 See Jones, 132 S. Ct. at 954 (leaving that question
open). Nor need we determine what type of law enforcement conduct,
if any, might have implicated the Knotts "dragnet" passage in the
pre-Jones era. It is enough for us to say that what occurred in
this case was not the indiscriminate monitoring that Baez
describes. This was relatively targeted (if lengthy) surveillance
of a person suspected, with good reason, of being a serial
arsonist.
Under these circumstances, it was objectively reasonable
for the ATF to believe that its conduct fell within the rule laid
out in Knotts that "[a] person travelling in an automobile on
public thoroughfares has no reasonable expectation of privacy in
his movements from one place to another." 460 U.S. at 281. We
therefore conclude that the good-faith exception applies. See
Davis, 131 S. Ct. at 2423-24.
There is, of course, a postscript: after Baez was
monitored and arrested, Jones came along and taught us that the
majority of circuit courts had misunderstood Knotts and that GPS
tracking does in fact constitute a Fourth Amendment search. See
132 S. Ct. 945.6 Jones also shed some new light on the Supreme
5
Baez argues that probable cause was required under Moore,
but as we clearly stated in Sparks, Knotts abrogated Moore's
probable-cause requirement. Sparks, 711 F.3d at 65.
6
It remains to be seen, at least in this circuit, whether a
warrant is required for such tracking. See Sparks, 711 F.3d at 62.
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Court's understanding of a "dragnet," suggesting that the twenty-
eight days of GPS monitoring at issue in that case, which generated
more than 2,000 pages of data about the defendant's movements, id.
at 948, constituted a "dragnet" within the meaning of Knotts. See
id. at 952 n.6 (describing Knotts as having "reserved the question
whether 'different constitutional principles may be applicable' to
'dragnet-type law enforcement practices' of the type that GPS
tracking made possible here"); see also id. at 956 n.* (Sotomayor,
J., concurring) ("Knotts reserved the question whether 'different
constitutional principles may be applicable' to invasive law
enforcement practices such as GPS tracking."). But Agent
Oppedisano, who placed the GPS device on Baez's car in August 2009,
did not have the benefit of Jones, which was decided almost two and
a half years later.
III. Conclusion
Our conclusion today certainly should not be read as an
endorsement of prolonged warrantless electronic surveillance. We
share the concerns that the respondent articulated in Knotts and
that the Supreme Court later acted upon in Jones. Moving forward,
new rules will apply, and perhaps congressional action will follow.
See Jones, 132 S. Ct. at 962-63 (Alito, J., concurring in the
judgment). But in this case, as in Sparks, the agents were acting
in objectively reasonable reliance on then-binding precedent. We
therefore find that the good-faith exception to the exclusionary
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rule applies, and we affirm the district court's denial of Baez's
motion to suppress.
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