United States v. Baker , 628 F. App'x 605 ( 2015 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT October 14, 2015
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-3164
(D.C. Nos. 2:14-CV-02299-CM and
ABASI S. BAKER, 2:11-CR-20020-CM-1)
(D. Kan.)
Defendant - Appellant.
_________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Abasi Baker seeks a certificate of appealability (“COA”) to appeal the denial
of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. We deny
a COA and dismiss the appeal.
I
Baker was sentenced to 164 years in prison for his role in seven armed
robberies. In the underlying investigation, video surveillance caused police to
investigate a car owned by Baker’s girlfriend’s mother. His girlfriend told the police
that Baker often used the car. Police then sought a warrant in the U.S. District Court
*
This order and judgment is not binding precedent, except under the doctrines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.
for the District of Kansas to retrieve cell phone tower records for Baker’s phone and
to access the GPS tracking device on his phone. In addition, and without a warrant,
the FBI placed a GPS tracking device on the car and tracked it. Baker asserts that the
device was on the car for two days—from March 2 to March 3, 2011. The GPS
surveillance allowed police to link the car to a robbery on March 3. Baker was then
pulled over and arrested, at which point the police found evidence of the crime.
In the court below, and in his brief before this court, Baker claims ineffective
assistance of counsel in violation of the Sixth Amendment. He alleges that his
attorney failed to review or investigate the record, erroneously informed Baker that
the police had secured a warrant to install the car GPS tracker, and failed to file a
motion to suppress evidence based on the warrantless tracking. Baker contends that
if his attorney had filed a motion to suppress, the result of his criminal trial would
have been different. Baker also argues ineffective assistance because the jury
instructions failed to reflect that conviction under 18 U.S.C. § 924(c) for the use of or
carrying a firearm during and in relation to a crime of violence requires that the
person accused of “aiding and abetting” knew in advance that one of his cohorts
would be armed. Rosemond v. United States, 134 S. Ct. 1240, 1243 (2014).
II
We may issue a COA “only if the applicant has made a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). A “substantial
showing” exists if “reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner or that the issues
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presented were adequate to deserve encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). Because Baker alleges a violation of his Sixth
Amendment right to effective assistance of counsel, he must demonstrate that
reasonable jurists could debate whether: (1) his counsel’s performance was deficient;
and (2) the deficient performance prejudiced his defense in a manner “so serious as to
deprive [him] of a fair trial . . . whose result is reliable.” Strickland v. Washington,
466 U.S. 668, 687 (1984). If the petitioner fails to make a substantial showing under
either prong, we need not address both components. Id. at 697 (“If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . .
that course should be followed.”).
We thus begin our analysis under the “sufficient prejudice” prong. Baker
contends that had counsel moved to suppress, the court likely would have excluded
the evidence gathered with the aid of the warrantless GPS tracking. Courts exclude
evidence obtained as a result of an unreasonable search. See Gaitan v. United States,
295 F.2d 277, 278 (10th Cir. 1961). The Supreme Court has stated that “searches
conducted outside the judicial process, without prior approval by judge or magistrate,
are per se unreasonable under the Fourth Amendment—subject only to a few
specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S.
332, 338 (2009). One such exception is that evidence will not be excluded if “law
enforcement officials reasonably believed in good faith that their conduct was in
accordance with the law even if decisions subsequent to the search or seizure have
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held that conduct of the type engaged in by the law enforcement officials is not
permitted by the Constitution.” United States v. Peltier, 422 U.S. 531, 538 (1975).
Neither the Supreme Court nor the Tenth Circuit established that GPS tracking
of a vehicle is a search under the Fourth Amendment until ten months after the FBI
placed the GPS device on Baker’s car. United States v. Jones, 132 S. Ct. 945, 949
(2012). For the two-day period during which the device was used, the agents could
reasonably have relied on prior Supreme Court decisions to provide authority for
warrantless tracking. See United States v. Hohn, 606 F. App’x 902, 906 (10th Cir.
2015) (unpublished) (officers could reasonably have relied on Supreme Court
precedent to support their authority for warrantless GPS tracking between July and
November 2011). In particular, the agents could have relied on the holding in United
States v. Knotts, 460 U.S. 276 (1983), that “[a] person travelling in an automobile on
public thoroughfares has no reasonable expectation of privacy in his movements” and
that electronic tracking of those movements “does not alter the situation.” Id. at 281-
82. In addition, because the agents placed the device while the car was in Missouri,
the agents could have relied on Eighth Circuit precedent holding that “when police
have reasonable suspicion that a particular vehicle is [involved in a crime], a warrant
is not required when . . . they install a . . . GPS tracking device on it for a reasonable
period of time.” United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010).
Baker argues that, even though precedent supports applying the good faith
exception in certain pre-2012 cases, the facts of this case demonstrate that the agents
acted in bad faith and so the exception must not apply. We disagree.
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Baker first alleges that the FBI agent intentionally concealed the GPS tracker
from the court. Even if this is true, it merely raises the question of whether the agent
had an obligation to disclose. As described above, Supreme Court precedent
reasonably suggested that he had no such duty. Intentionally failing to disclose
information that one reasonably believed he did not have a duty to disclose does not
violate good faith.1
Baker also asks us not to apply the good faith exception because the agent did
not have actual knowledge of relevant Supreme Court precedent, but instead relied on
advice from the assistant U.S. attorney (“AUSA”). This argument misconstrues the
exception, under which evidence is suppressed “only if it can be said that the law
enforcement officer had knowledge, or may properly be charged with knowledge,
that the search was unconstitutional.” Peltier, 422 U.S. at 542. As discussed above,
a reasonable reading of Supreme Court precedent in 2011 was that law enforcement
did not need a warrant to use GPS to track vehicles. Thus, we cannot say that the
agent in this case had or should have had knowledge that such tracking was
unconstitutional.
Finally, Baker contends that because a judge sitting in Kansas would not have
had the authority to issue a warrant to place a GPS device on a vehicle in Missouri,
1
Baker also alleges that bad faith occurred when, he argues, the FBI acted
after his arrest to deliberately mislead the court regarding use of the tracker.
Whether the agent acted in bad faith after the search does not affect our conclusion
that he did not act in bad faith by failing to disclose the GPS device at the time of the
search.
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18 U.S.C. § 3117(a), the FBI agent should have known that both he and the AUSA
also lacked authority to place a warrantless device in Missouri. This reasoning again
relies on the assertion that a warrant was clearly necessary at the time the tracker was
installed. It was not, particularly in light of Eighth Circuit precedent expressly
condoning warrantless GPS tracking of vehicles. Marquez, 605 F.3d at 610. If
anything, that the tracker was installed in Missouri—within the Eighth Circuit—
supports finding good faith.
For these reasons, there was not a reasonable probability that the trial court
would have granted a motion to suppress. Thus, Baker has not made a substantial
showing that his counsel’s deficiency was so serious as to deprive him of a fair trial
whose result is reliable. Strickland, 466 U.S.at 687.
III
Baker also raises a claim of erroneous jury instructions. However, his
discussion of this issue is limited to one paragraph in his Statement of Facts. He does
not make any attempt to develop the argument, or to apply the Strickland test to this
claim. For this reason, “we lack the information to address this challenge in any
meaningful fashion.” Williams v. Trammell, 782 F.3d 1184, 1208 (10th Cir. 2015).
The claim is waived. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 679 (10th Cir.
1998) (“Arguments inadequately briefed in the opening brief are waived.”).
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IV
We DENY a COA, and DISMISS the appeal.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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