United States v. Joshua Dewilfond ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 22-1066
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Joshua Andrew Dewilfond
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the Southern District of Iowa - Eastern
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Submitted: October 21, 2022
Filed: December 2, 2022
[Published]
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Before LOKEN, COLLOTON, and ERICKSON, Circuit Judges.
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PER CURIAM.
Joshua Dewilfond conditionally pleaded guilty to conspiracy to distribute a
controlled substance and being a felon in possession of ammunition. He appeals the
conviction and 200 month sentence, arguing the district court1 erred in denying his
motion to suppress because law enforcement violated his Fourth Amendment rights
when he was arrested “based on the warrantless collection of GPS locational data.”
The data was collected using a tracking device installed on a vehicle with the vehicle
owner’s consent before Dewilfond borrowed it. Dewilfond initially argued this issue
in a brief filed under Anders v. California, 386 U.S. 738 (1967). We denied counsel’s
motion to withdraw, treated the Anders brief as an opening brief on the merits, and
requested a responsive brief from the government. Reviewing the district court’s
legal conclusions de novo and its factual findings for clear error, we affirm the denial
of Dewilfond’s motion to suppress. United States v. Robinson, 781 F.3d 453, 458
(8th Cir. 2015) (standard of review).
Scott County, Iowa, Detective Greg Hill was the only witness at the June 2021
suppression hearing. Detective Hill testified that on September 25, 2020, he was
investigating methamphetamine distribution in the Quad Cities area. A confidential
source (“CS”), one of three sources who had informed Hill that Dewilfond was
involved in distributing methamphetamine, informed Hill that Dewilfond wanted to
borrow the CS’s vehicle to purchase a large quantity of methamphetamine outside the
Quad Cities area. With the CS’s consent, law enforcement placed a GPS tracking
device on the vehicle. Later that day, the CS advised he had loaned the vehicle to
Dewilfond. Law enforcement monitored the vehicle’s location for the next two days
in Davenport and the surrounding Quad Cities. On September 27, the vehicle
traveled west to Oskaloosa, Iowa, where it stopped briefly at a Walmart store and then
at two gas stations before returning to Davenport. When it arrived at the Baymont
Inn, Hill testified that officers surrounded the vehicle “for a takedown” and
approached its occupants with guns drawn due to Dewilfond’s “history of eluding and
the possibility of firearms.”
1
The Honorable John A. Jarvey, then Chief Judge of the United States District
Court for the Southern District of Iowa, now retired.
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Dewilfond, in the front passenger seat, told the driver, his girlfriend, to “go, go,
go,” but officers stopped her from putting the vehicle in drive. Dewilfond initially
refused the demand to show his hands. Both occupants were removed from the
vehicle and arrested. One officer noted the vehicle smelled like marijuana. Detective
Hill interviewed Dewilfond after obtaining a Miranda waiver. Dewilfond said that
Hill would find methamphetamine in the vehicle. In a warrantless search of the
vehicle later that day, officers found over 1,000 grams of methamphetamine,
ammunition, and other contraband. A subsequent warrant search of Dewilfond’s
apartment and a second vehicle recovered additional contraband.
Before trial, Dewilfond moved to suppress all direct evidence and derivative
evidence seized as a result of the “warrantless surveillance of [his] location through
use of [GPS] monitoring.” He argued that the “derivative evidence” included his
involuntary post-Miranda statements to Detective Hill and the contraband recovered
from subsequent searches of the vehicle, Dewilfond’s cell phones, his apartment, and
the second vehicle. In denying the motion, the district court concluded that
Dewilfond’s statements to Detective Hill were not involuntary and that “any
expectation of privacy that Dewilfond had in the vehicle was eviscerated by [the
CS’s] consent to the installation of the GPS.” On appeal, Dewilfond raises a single
issue: “Whether the district court erred by denying Mr. Dewilfond’s motion to
suppress evidence derived from the warrantless GPS tracking of his movements.”
Thus, other issues are “not properly before us.” United States v. LeBeau, 867 F.3d
960, 973 (8th Cir. 2017), citing Fed. R. Crim. P. 12(b)(3), (c)(3); see United States
v. Mejia-Perez, 635 F.3d 351, 353-54 (8th Cir. 2011).
Dewilfond argues he had a reasonable expectation of privacy in his location
and movements in the borrowed vehicle, making law enforcement’s warrantless
surveillance an illegal Fourth Amendment search. The argument is based on United
States v. Jones, 565 U.S. 400, 404 (2012), where the Supreme Court held that
installation of a GPS tracking device on a suspect’s vehicle is a Fourth Amendment
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search. However, Jones while highly relevant does not control the issue in this case
for two distinct reasons. First, as Dewilfond concedes, the CS consented to
installation of the GPS tracker before Dewilfond borrowed the vehicle. In Jones the
Court noted that installation of a tracking device in a container “with the consent of
the original owner . . . when the container is delivered to a buyer having no
knowledge of [its] presence” presents a different question. Id. at 409-10 (discussing
United States v. Karo, 468 U.S. 705, 712 (1984); emphasis in original). Second,
Dewilfond challenges the surveillance of his location using a GPS tracking device,
not the device’s initial installation. The Court in Jones expressly declined “to grapple
with the ‘vexing problems’ [posed by GPS monitoring] where a classic trespassory
search is not involved.” Id. at 412-13 (cleaned up). We will separately consider these
distinctions.
A. Unlike the investigative target in Jones, whose wife owned the vehicle to
which law enforcement attached a tracking device while it was parked in public,
Dewilfond had no property interest or expectation of privacy in the vehicle when CS
consented to installation of a GPS tracking device before Dewilfond borrowed the
car. The district court found that the consent was validly given. Consent is a well-
established exception to the warrant requirement. See Karo, 468 U.S. at 717.
Detective Hill’s testimony established that CS’s consent to install the device included
consent for the government to monitor the vehicle’s location, at least in public places,
to determine if it was engaging in an intended drug purchase, as the CS reported. At
that time, Dewilfond had neither a possessory interest in that locational information
nor a reasonable expectation of its privacy. Whether CS’s consent to install the
tracking device would have extended to a warrantless search of the vehicle when the
consenting owner was not present is a separate issue we need not address.
B. Despite CS’s consent, Dewilfond argues, he had a reasonable expectation
of privacy in his public movements and location in the borrowed vehicle. We
disagree. This contention ignores the well-established Fourth Amendment principle
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that a person “has a lesser expectation of privacy in a motor vehicle because its
function is transportation.” Cardwell v. Lewis, 417 U.S. 583, 590 (1974). As the
Supreme Court subsequently held in United States v. Knotts, 460 U.S. 276, 281
(1983), “[a] person traveling in an automobile on public thoroughfares has no
reasonable expectation of privacy in his movements from one place to another.” In
this case, as in United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010), “[t]he
device merely allowed the police to reduce the cost of lawful surveillance” of a
vehicle they suspected was involved in drug trafficking. During the entire two days
of surveillance, the vehicle remained in public view; thus, use of the GPS tracker
“allow[ed] law enforcement to conduct the same sort of surveillance it could conduct
visually.” Robinson, 781 F.3d at 460 (quotation omitted).
Dewilfond argues this case is controlled by Carpenter v. United States, 138 S.
Ct. 2206 (2018), not Knotts. We disagree. At issue in Carpenter was a search of
historical cell phone location data stored by third parties, not real-time tracking of a
vehicle operating on public roadways. The Court in Carpenter emphasized that its
holding was narrow. See id. at 2220 (“We do not express a view on matters not
before us [such as] real-time [cell phone location data].”). Here, unlike Carpenter,
law enforcement officers with reason to suspect a vehicle was being used for drug
trafficking briefly used real-time GPS data “to find [Dewilfond’s] location in public,
not to peer into the intricacies of his private life.” United States v. Hammond, 996
F.3d 374, 389 (7th Cir. 2021), cert. denied, 142 S. Ct. 2646 (2022). This is an
independent ground to affirm the district court’s decision.
For these reasons, we conclude the district court properly denied Dewilfond’s
motion to suppress because law enforcement in obtaining and using real-time GPS
tracking data with CS’s consent in connection with their investigation of the vehicle’s
suspected use in drug trafficking did not violate the Fourth Amendment. The
judgment of the district court is affirmed.
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