United States v. Henry Brown , 744 F.3d 474 ( 2014 )

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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 11-‐‑1565
UNITED STATES OF AMERICA,
Plaintiff-‐‑Appellee,
v.
HENRY R. BROWN,
Defendant-‐‑Appellant.
____________________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 06-‐‑CR-‐‑327 — C.N. Clevert, Jr., Judge.
____________________
ARGUED NOVEMBER 4, 2013 — DECIDED MARCH 4, 2014
____________________
Before EASTERBROOK, KANNE, and TINDER, Circuit Judges.
EASTERBROOK, Circuit Judge. A jury convicted Henry
Brown of conspiring to distribute more than five kilograms
of cocaine. Brown’s recidivism led the judge to sentence him
to life imprisonment. His principal contention on appeal is
that the court should have prevented the prosecutor from
introducing evidence traceable to information gleaned from
a GPS (Global Positioning System) monitor that investigators
attached to a car in 2006. The Supreme Court held in 2012
2 No. 11-‐‑1565
that the intrusion on the property interest of a car’s owner is
a “search,” valid only if reasonable. United States v. Jones,

132 S. Ct. 945

  (2012).  Brown  maintains  that  employing  GPS  loca-‐‑
tion   services   is   reasonable   only   with   the   support   of   a   war-‐‑
rant  issued  on  probable  cause.
Jones   did   not   hold—though   five   Justices   suggested   in
concurring  opinions—that  monitoring  a  car’s  location  for  an
extended  time  is  a  search  even  if  the  car’s  owner  consents  to
installation  of  the  GPS  unit,  so  that  no  property  rights  have
been   invaded.

132 S. Ct. at

  954–57   (Sotomayor,   J.,   concur-‐‑
ring),  957–64  (Alito,  J.,  concurring,  joined  by  Ginsburg,  Brey-‐‑
er  &  Kagan,  JJ.).  An  extension  of  Jones  along  the  concurring
opinions’   lines   is   essential   to   Brown’s   position,   since   this
GPS   unit   was   installed   without   a   trespass.   A   Jeep’s   owner
decided  to  cooperate  with  the  police  in  their  investigation  of
his  confederates  and  authorized  the  attachment  of  a  tracker.
The  police  thought  that  this  step  is  as  permissible  as  asking
their  informant  to  wear  a  concealed  recording  or  broadcast-‐‑
ing  device;  Brown,  by  contrast,  maintains  that  monitoring  a
GPS   locator   requires   probable   cause   and   a   warrant   even   if
monitoring   an   informant’s   wire   does   not.   We   bypass   that
question,   as   well   as   other   issues   such   as   whether   a   person
using   someone   else’s   car   (or   that   person’s   co-‐‑conspirator)
can   protest   the   use   of   evidence   derived   from   a   device   that
shows  no  more  than  the  car’s  location.  No  matter  how  these
substantive   issues   come   out,   it   would   be   inappropriate   to
use  the  exclusionary  rule  to  suppress  evidence  derived  from
this   GPS   locator   before   the   Supreme   Court’s   decision   in
Jones.  Until  then,  precedent  would  have  led  reasonable  offic-‐‑
ers  to  believe  that  using  GPS  to  track  a  car’s  location  was  not
a  search.
No.  11-‐‑1565                                                                    3
The   exclusionary   rule   is   designed   to   deter   violations   of
the   fourth   amendment.   The   Supreme   Court   has   concluded
that   the   slight   deterrent   benefit   of   excluding   evidence   de-‐‑
rived  from  searches  that  were  proper  when  conducted—but
held  to  be  invalid  in  light  of  later  precedent—does  not  justify
the  injury  to  the  public  weal  when  criminals  go  unpunished.
Davis   v.   United   States,

131 S. Ct. 2419

,   2423–24   (2011),   an-‐‑
nounced   this   rule:   “searches   conducted   in   objectively   rea-‐‑
sonable  reliance  on  binding  appellate  precedent  are  not  sub-‐‑
ject   to   the   exclusionary   rule”   even   if   that   precedent   is   later
held   to   be   incorrect.   Before   Jones,   “binding   appellate   prece-‐‑
dent”  in  this  circuit  had  established  that  installation  of  a  GPS
device,  and  the  use  of  the  location  data  it  produces,  are  not
within  the  scope  of  the  fourth  amendment.  See  United  States
v.  Garcia,

474 F.3d 994

  (7th  Cir.  2007);  United  States  v.  Cuevas-‐‑
Perez,

640 F.3d 272

   (7th   Cir.   2011).   It   appears   to   follow   that
the   exclusionary   rule   does   not   apply   to   the   acquisition   of
GPS  location  data,  within  the  Seventh  Circuit,  before  Jones.
That   proposition   would   be   straightforward   if   the   evi-‐‑
dence  had  been  derived  from  a  GPS  device  after  February  2,
2007,   when   Garcia   created   the   “binding   precedent”   for   this
circuit.  See,  e.g.,  United  States  v.  Sparks,

711 F.3d 58

  (1st  Cir.
2013);   United   States   v.   Andres,

703 F.3d 828

   (5th   Cir.   2013);
United  States  v.  Pineda-‐‑Moreno,

688 F.3d 1087

  (9th  Cir.  2012);
United  States  v.  Ransfer,

2014 U.S. App. LEXIS 1669

  (11th  Cir.
Jan.  28,  2014).  All  of  these  decisions  conclude  that  Davis  fore-‐‑
closes  the  use  of  the  exclusionary  rule  for  pre-‐‑Jones  monitor-‐‑
ing  that  had  the  blessing  of  circuit-‐‑level  precedent.
But  the  GPS  data  that  led  to  the  evidence  at  Brown’s  trial
was  acquired  in  2006.  He  contends  that  there  was  no  “bind-‐‑
ing   appellate   precedent”   in   2006   and   that   the   exclusionary
4                                                                  No.  11-‐‑1565
rule  therefore  is  available.  He  relies  on  United  States  v.  Mar-‐‑
tin,

712 F.3d 1080

   (7th   Cir.   2013),   which   doubted   whether
Davis   applies   to   pre-‐‑Jones   GPS   data   within   the   states   of   the
Eighth   Circuit,   which   lacked   any   decisions   comparable   to
Garcia   and   Cuevas-‐‑Perez.   A   panel   of   the   Third   Circuit   lent
support   to   Brown’s   position   by   holding   that   Davis   is   irrele-‐‑
vant  to  pre-‐‑Jones  GPS  data  within  the  Third  Circuit’s  territo-‐‑
ry,  precisely  because  it  had  not  held  (before  Jones)  that  using
GPS  to  reveal  a  car’s  location  was  not  a  search.  United  States
v.  Katzin,

732 F.3d 187

  (3d  Cir.  2013).
Martin   ruminated   about   the   effect   of   Davis   but   did   not
produce   a   holding   on   that   score   because   the   panel   found
that  the  GPS  unit  was  only  remotely  related  to  the  contested
evidence.  Katzin  has  been  vacated  on  the  grant  of  rehearing
en   banc.

2013 U.S. App. LEXIS 24722

   (3d   Cir.   Dec.   12,   2013).
And  United  States  v.  Aguiar,

737 F.3d 251

  (2d  Cir.  2013),  disa-‐‑
greeing   with   the   Third   Circuit’s   panel,   squarely   holds   that
Davis  covers  pre-‐‑Jones  GPS  monitoring  in  a  jurisdiction  that,
like  the  Third  and  Eighth  Circuits,  did  not  have  local  prece-‐‑
dents.   Aguiar   concludes   that   for   the   purpose   of   Davis   the
“binding  appellate  precedent”  is  supplied  by  United  States  v.
Knotts,

460 U.S. 276

  (1983),  and  United  States  v.  Karo,

468 U.S. 705

   (1984),   both   of   which   long   predate   the   monitoring   to
which  Brown  objects.
Knotts  holds  that  monitoring  a  signal  from  a  “beeper”—a
radio  that  transmits  a  signal  whose  location  may  be  derived
via   triangulation—is   not   a   search.   A   GPS   unit   used   in   law
enforcement   transmits   or   stores   its   own   location;   triangula-‐‑
tion  by  the  police  is  not  required;  but  the  information  the  po-‐‑
lice  obtain  is  the  same  no  matter  which  technology  they  use.
Karo  adds  that  the  installation  of  a  beeper  is  not  a  search,  or
No.  11-‐‑1565                                                                    5
at  least  does  not  require  probable  cause  or  a  warrant,  if  the
owner   of   the   property   into   which   the   beeper   is   placed   con-‐‑
sents,  even  if  the  beeper  then  is  used  to  monitor  the  location
of   someone   who   did   not   consent.   We   concluded   in   Garcia
and   Cuevas-‐‑Perez   that   Knotts   and   Karo   jointly   show   that
tracking   a   car’s   location   by   GPS   is   not   a   search   no   matter
how  long  tracking  lasts.  We  earlier  held  in  Garcia,  relying  on
those  two  decisions,  that  installation  of  the  GPS  locator  does
not   come   within   the   fourth   amendment   because   it   does   not
interfere  with  the  vehicle’s  use  in  transportation.  Jones  rejects
that   understanding   but   states   that   the   holding   of   Karo   con-‐‑
cerning   devices   installed   with   consent   “is   perfectly   con-‐‑
sistent  with  the  one  we  reach  here.”

132 S. Ct. at 952

.
Because the GPS unit that played a role in the gathering
of evidence against Brown was installed with the consent of
the Jeep’s owner, Knotts and Karo are “binding appellate
precedent” for the purpose of Davis. It may well be that five
Justices (those who joined the two concurring opinions in
Jones) are prepared to hold that long-‐‑term monitoring of a
GPS tracker is a search, even if installation has the imprima-‐‑
tur of the vehicle’s owner, but Jones did not reach that con-‐‑
clusion, and as of 2006 Karo supported the device’s installa-‐‑
tion, while Knotts meant that the monitoring was not within
the fourth amendment’s scope. If those conclusions are
wrong, the Supreme Court has yet to hold so, so Knotts and
Karo provided solid ground for objectively reasonable reli-‐‑
ance by the police.
That conclusion makes it unnecessary to decide whether
this circuit will follow Aguiar in holding that Davis governs
all pre-‐‑Jones GPS tracking. How Davis applies to non-‐‑
consensual installation before February 2, 2007, when Garcia
6 No. 11-‐‑1565
was released, remains an open question here. But with the
panel decision in Katzin having been vacated, all of the ex-‐‑
tant appellate precedent is on the side of applying Davis.
There is legitimate debate about whether precedent from
Circuit A could be deemed “binding” (for the purpose of
Davis) when the search occurs in Circuit B, where the issue
remains unresolved. Still, police and the FBI (or the lawyers
advising them) often rely on precedent from one circuit
when another has yet to address a question. 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. If the
question were whether police who installed a GPS locator, in
reliance on Circuit A’s precedent, could be ordered to pay
damages when, years later, Circuit B disagreed with Circuit
A, the answer would be no. It’s hard to see why the exclu-‐‑
sionary rule should be handled differently. But that’s a ques-‐‑
tion for another day.
Brown makes three other arguments, none of which re-‐‑
quires extended discussion.
Kevin Arms owned the Jeep in which the GPS unit had
been installed. He alerted police one day that Troy Lewis
was driving the Jeep to Milwaukee with 10 kilograms of co-‐‑
caine for Arms and his confederates (including Brown). A
GPS device does not reveal a vehicle’s contents, but it may
have been used to locate the Jeep, which was stopped in Ra-‐‑
cine. Police found 10 kilograms of cocaine, just as Arms said
they would. And Lewis, like Arms, flipped after being
caught; he testified against Brown at trial. Brown proposed
to cross-‐‑examine Lewis about a 1995 conviction; the district
No. 11-‐‑1565 7
judge curtailed this cross-‐‑examination under Fed. R. Evid.
403, ruling that it would take the trial too far afield. That was
not an abuse of discretion. The right to cross-‐‑examine wit-‐‑
nesses is not unlimited; it suffices if the judge allows the ac-‐‑
cused to explore a witness’s background and potential bias.
The judge allowed the defense that latitude and acted rea-‐‑
sonably in concluding that diverting the trial into an investi-‐‑
gation of a mid-‐‑1990s drug enterprise, operating eight years
before the outset of the conspiracy with which Brown was
charged, could confuse the jury. That’s an adequate basis for
invoking Rule 403. See, e.g., United States v. Smith,

454 F.3d 707

,  714  (7th  Cir.  2006).
The   second   dispute   concerns   evidence   that   Brown   fled
from   the   police   when   they   tried   to   arrest   him.   (The   flight
was   a   high-‐‑speed   car   chase,   but   details   do   not   matter.)   The
district   judge   allowed   the   jury   to   infer,   from   that   flight,
Brown’s   consciousness   of   his   own   guilt.   He   maintains   that
he   did   not   know   that   he   was   under   investigation;   if   so,   it
would   be   inappropriate   to   infer   from   the   flight   any   mental
state   other   than   unwillingness   to   be   in   custody.   See   United
States   v.   Russell,

662 F.3d 831

, 850 (7th Cir. 2011). But the
prosecution introduced evidence that a search warrant had
been executed at the residence of Brown’s brother Randye
the week before, and that during the search the officers said
that they were looking for Brown, for whom an arrest war-‐‑
rant had been issued, as part of an investigation into the dis-‐‑
tribution of cocaine. The jury was entitled to conclude that
Brown and his brother were in contact; Brown fled in
Randye’s car.
Finally, Brown contends that the district judge should
not have admitted an affidavit from attorney Jack Rimland
8 No. 11-‐‑1565
attesting that a receipt for $10,000 found in a search of
Brown’s residence was a business record—in other words,
that Rimland had issued the receipt to Brown as payment for
legal services. He allows that if the receipt was a business
record it was admissible under Fed. R. Evid. 803(6) and
902(11), and was relevant to the prosecution’s case, but
maintains that the affidavit was hearsay and, since Rimland
did not testify, violated the confrontation clause of the sixth
amendment. (The receipt, by contrast, is not testimonial and
is outside the scope of the confrontation clause. On the defi-‐‑
nition of “testimonial” materials, see Michigan v. Bryant,

131 S. Ct. 1143

  (2011).  The  affidavit  likewise  was  not  testimonial,
see  United  States  v.  Ellis,

460 F.3d 920

, 923–24 (7th Cir. 2006).)
The district judge should not have allowed the jury to see
Rimland’s affidavit, which in addition to being hearsay was
not relevant to any issue in the prosecution. Its only function
was to get the receipt into evidence. The prosecutor, the de-‐‑
fense attorney, and the judge all appear to have assumed
that the jury needed the affidavit in order to decide whether
the receipt is a business record. Yet judges, not juries, decide
whether evidence is admissible, and for the purpose of that
decision the hearsay rule does not apply. See Fed. R. Evid.
104(a). The judge should have decided for himself whether
the receipt is a business record (which it is) and, having
made that decision, allowed only the receipt into the trial
record.
Although the affidavit should not have been admitted,
the error was harmless precisely because it served only to
pin down the status of the receipt. If the judge had followed
Rule 104(a) and used the affidavit outside the jury’s pres-‐‑
ence, the receipt still would have been admitted, for whatev-‐‑
No. 11-‐‑1565 9
er value it had. The affidavit did not make matters worse for
Brown and so does not entitle him to a new trial.
AFFIRMED