United States v. Mitchell , 653 F. App'x 651 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
June 30, 2016
TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 15-3006
v.
(D.C. No. 2:13-CR-20051-CM-1)
(D. Kan.)
WILLIAM D. MITCHELL,
Defendant - Appellant.
ORDER AND JUDGMENT *
Before HARTZ, GORSUCH, and PHILLIPS, Circuit Judges.
What should happen to evidence the government secured using a GPS
tracking device placed on a defendant’s car without a warrant but before United
States v. Jones, 132 S. Ct. 945 (2012), opened the possibility a warrant might be
required? That’s the question we face in this case. Like the district court, we
conclude that Davis v. United States, 564 U.S. 229 (2011), permits the
government to use at trial the evidence the tracking device yielded.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Our case began back in September 2011 when a confidential informant told
authorities that William Mitchell was a drug dealer. Acting on this tip, police
worked with the informant to set up a controlled buy. But Mr. Mitchell was
easily spooked and at first failed to show. So the officers tried a new tactic.
They found Mr. Mitchell’s car parked on a public street and, without a warrant,
attached a GPS device to its bumper. That’s when the officers’ luck turned. They
used the GPS device to track Mr. Mitchell’s movements and, some weeks later
and at a time they were confident he had just purchased drugs for resale, they
pulled him over and eventually found drugs. In time, a federal jury convicted Mr.
Mitchell of drug distribution charges. And now on appeal he asks us to reverse
that conviction on the basis that any evidence secured using the GPS device
should have been excluded from his trial.
But even assuming (without deciding) that a warrant would be required for
the type of GPS surveillance that took place here, exclusion is not the appropriate
remedy. There was a time, of course, when the Supreme Court “treated
identification of a Fourth Amendment violation as synonymous with application
of the exclusionary rule.” Arizona v. Evans, 514 U.S. 1, 13 (1995). But
eventually the Court came to the judgment that this “reflexive application” of the
exclusionary rule “exact[ed] a heavy toll on both the judicial system and society
at large.” Davis, 564 U.S. at 237-38 (internal quotation marks omitted). It
“require[d] courts to ignore reliable, trustworthy evidence bearing on guilt or
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innocence” and operated “to suppress the truth and set the criminal loose in the
community without punishment.” Id. at 237. A high price for a “judicially
created remedy” not mentioned by the Constitution and meant only as a practical
deterrent to future Fourth Amendment violations. United States v. Calandra, 414
U.S. 338, 348 (1974). And so, in time, the Supreme Court came to restrict the
exclusionary rule’s operation to those cases in which it “most efficaciously
serve[s]” that deterrence goal, id., explaining that suppression is a “bitter pill”
society must swallow only as a “last resort,” Davis, 564 U.S. at 237 (internal
quotation marks omitted).
How do we know when we’ve reached the end of the road and exclusion
becomes the only recourse? The Court has suggested the task requires balancing
competing social interests — examining the “deterrence benefits of suppression”
in relief against its heavy social costs. Id. But trying to weigh these
incommensurate goods on a grand societal scale can be a difficult business. See
generally United States v. Nicholson, 721 F.3d 1236, 1256 (10th Cir. 2013)
(Gorsuch, J., dissenting). So the Court has more recently offered a bit more
guidance. “[T]he deterrence benefits of exclusion,” it has now explained,
“‘var[y] with the culpability of the law enforcement conduct’ at issue.” Davis,
564 U.S. at 238 (quoting Herring v. United States, 555 U.S. 135, 143 (2009)).
Only when the police engage in “deliberate, reckless, or grossly negligent
conduct” will the deterrent value of exclusion tend to outweigh the resultant
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costs. Herring, 555 U.S. at 144. By contrast, and in the usual case, “when the
police act with an objectively reasonable good-faith belief that their conduct is
lawful, or when their conduct involves only simple, isolated negligence, the
deterrence rationale loses much of its force and exclusion cannot pay its way.”
Davis, 564 U.S. at 238 (citations and internal quotation marks omitted).
Applying that standard to this case we see no reason to believe the officers
acted less than reasonably. After all, when they attached the GPS device to Mr.
Mitchell’s car in 2011, this circuit’s precedent seemed to suggest the officers
needed no warrant. Decades ago, the Tenth Circuit held that officers could attach
an “electronic tracking device” to a car and monitor it without a warrant so long
as they had probable cause. United States v. Shovea, 580 F.2d 1382, 1387-88
(10th Cir. 1978). Five years later and still long before the events here, the
Supreme Court went further still, holding the Fourth Amendment was not
implicated when police tracked a defendant’s car by monitoring an electronic
beeper secreted in a five-gallon drum that had been sold to the defendant. United
States v. Knotts, 460 U.S. 276, 277, 281-85 (1983). And then it went further still,
holding that neither the installation of a beeper inside a can (with the owner’s
consent) nor the transfer of that can to an unwitting target constituted a “search”
or “seizure” within the meaning of the Fourth Amendment. United States v.
Karo, 468 U.S. 705, 711-13 (1984).
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To be sure, yesterday’s beepers are a far cry from today’s GPS devices.
See Jones, 132 S. Ct. at 951-52; id. at 955-56 (Sotomayor, J., concurring); id. at
963-64 (Alito, J., concurring in the judgment). Neither is there any question that
the five weeks spent tracking Mr. Mitchell’s car far outstripped the hours of
surveillance at issue in Knotts and Karo. See 460 U.S. at 279; 468 U.S. at 708.
But what’s not obvious is that these distinctions would have obviously mattered
to a reasonable officer in 2011. In basic function beepers and GPS devices are
alike — they permit the monitoring of vehicular movements on public streets.
See, e.g., United States v. Katzin, 769 F.3d 163, 175-76 (3d Cir. 2014) (en banc);
United States v. Aguiar, 737 F.3d 251, 261-62 (2d Cir. 2013). The bright-line
drawn in Knotts, moreover, appeared to render the length of the surveillance
immaterial for Fourth Amendment purposes. United States v. Sparks, 711 F.3d
58, 67 (1st Cir. 2013). In light of this, we think a reasonable officer could be
forgiven for thinking, prior to Jones, that existing appellate precedent authorized
him to install and monitor a GPS device on a private vehicle without a warrant.
See United States v. Hohn, 606 F. App’x 902, 905-07 (10th Cir. 2015) (holding
officers relied in good faith on Knotts and Karo when warrantlessly tracking
vehicle with GPS device).
If this analogous and binding appellate precedent weren’t reason enough to
think the officers here tried in good faith to comply with the law’s demands,
consider too how many other circuits had already specifically and expressly
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approved of the warrantless use of GPS tracking devices. Of the five circuits that
had considered the question before September 2011, four had said no warrant was
required — either because the surveillance did not constitute a “search” within
the meaning of the Fourth Amendment or because some degree of suspicion
would suffice to render the search “reasonable” even without a warrant. See
generally United States v. Hernandez, 647 F.3d 216, 220-21 (5th Cir. 2011);
United States v. Garcia, 474 F.3d 994, 996-98 (7th Cir. 2007); United States v.
Marquez, 605 F.3d 604, 609-10 (8th Cir. 2010); United States v. Pineda-Moreno,
591 F.3d 1212, 1216-17 (9th Cir. 2010). Yes, this circuit had not yet addressed
the question and one circuit had gone the other way. See United States v.
Maynard, 615 F.3d 544, 555-56 (D.C. Cir. 2010). But the Supreme Court had
agreed to review that outlying circuit decision by September 2011. See United
States v. Jones, 131 S. Ct. 3064 (2011) (mem.). And a reasonable officer could
have taken the Court’s decision to review the only contrary authority as a sign it
was prepared to overrule it.
Under these circumstances, and even assuming the officers in our case
violated the Fourth Amendment by failing to obtain a warrant, we can attribute to
them no more than simple negligence. Otherwise we’d have to condemn them for
conforming their behavior to the vision of four rather than the voice of one — and
to demand of them a degree of legal foresight even four out of five circuit courts
of appeal could not muster. That much we’re not prepared to do. Cf. United
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States v. Brown, 744 F.3d 474, 478 (7th Cir. 2014) (“One can doubt that much
deterrence is to be had from telling the police that they are not entitled to rely on
decisions issued by several circuits, just because the circuit covering the state in
which an investigation is ongoing lacks its own precedent.”). Neither, it seems, is
any other circuit, for every one to have faced a case like ours has resolved it
much as we do. See Hohn, 606 F. App’x at 907 (collecting cases); United States
v. Robinson, 781 F.3d 453, 458-60 (8th Cir. 2015).
Affirmed.
ENTERED FOR THE COURT
Neil M. Gorsuch
Circuit Judge
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