United States v. Brian Terry

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-4799
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
BRIAN D . TERRY,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of West Virginia,
at Charleston. Joseph R. Goodwin, District Judge (2:16-cr-00175-1)
Argued: October 10, 2018 Decided: November 30, 2018
Before GREGORY, Chief Judge, MOTZ, and DIAZ, Circuit Judges
Reversed, vacated, and remanded by published opinion. Chief Judge Gregory wrote the
opinion, in which Judge Motz and Judge Diaz joined.
ARGUED: Lex A. Coleman, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Charleston, West Virginia, for Appellant. Meredith George Thomas, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, West Virginia, for Appellee. ON BRIEF:
Christian M. Capece, Federal Public Defender, Jonathan D. Byrne, Research & Writing
Specialist, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Charleston, West
Virginia, for Appellant. Michael B. Stuart, United States Attorney, Charleston, West
Virginia, W. Clinton Carte, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Huntington, West Virginia, for Appellee.
GREGORY, Chief Judge:
Brian D. Terry appeals his conviction for possession of methamphetamine with the
intent to distribute. See 21 U.S.C. § 841(a)(1). Terry challenges the district court’s
denial of his motion to suppress evidence seized during a traffic stop. Drug task force
agents effectuated the stop through the illegal use of a global positioning system (“GPS”)
search. The district court found the agents committed a flagrant constitutional violation
but ultimately denied Terry’s motion to suppress for lack of standing. For the reasons
below, we conclude that Terry had standing and that the discovery of the evidence seized
during the traffic stop was not sufficiently attenuated from the unlawful GPS search to
purge the taint of the unlawful search. We therefore reverse the district court’s order
denying Terry’s motion to suppress, vacate Terry’s conviction, and remand for further
proceedings consistent with this opinion.
I.
A.
The parties do not dispute the facts underlying Terry’s motion to suppress. The
Metropolitan Drug Enforcement Network Team (“MDENT”), a drug task force operating
in Charleston, West Virginia, started investigating Terry when an officer found remnants
of drugs in trash placed outside of a residence associated with Terry. From this evidence
and other information, an MDENT agent acquired a search warrant for Terry’s residence.
On April 18, 2016, agents saw Terry leave his residence driving a gold Kia Optima and
followed him to a local store. Once Terry had parked, Corporal D.C. Johnson
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approached the Kia and smelled marijuana. After speaking with Corporal Johnson, Terry
turned over a small amount of marijuana and Corporal Johnson searched the car.
Nothing further of interest was found, and Corporal Johnson wrote Terry a misdemeanor
citation for the marijuana Terry had turned over. While Terry was speaking with
Corporal Johnson, another MDENT agent surreptitiously placed a GPS tracker onto the
Kia even though none of the agents had obtained a warrant to do so.
Following the interaction with the MDENT agents in the parking lot, Terry went
with the agents back to his residence and allowed them to search there, but no contraband
or other incriminating evidence was found. Afterwards, Corporal Johnson obtained a
warrant from a local magistrate to “ping” Terry’s cellphone and to place the GPS tracker
on the Kia—the same car on which the agents had placed a GPS tracker earlier that day.
Corporal Johnson did not inform the issuing magistrate that MDENT agents had already
placed the GPS tracker on the vehicle.
On April 20, 2016, two days after the warrantless GPS search began, the agents
relied solely on the GPS data to track the car to Columbus, Ohio, where they suspected
Terry traveled to obtain drugs. By that time, the police were no longer obtaining “ping”
data from Terry’s cellphone, suggesting that the phone was turned off or disconnected.
After the car returned to West Virginia, the officers began to follow the Kia and
determined through “pacing” that the car was speeding at five miles above the posted
speed limit of 45 miles per hour. After confirming through GPS data that the car was in
fact speeding, the officers pulled the Kia over. Tamara Moore, the owner of the Kia, was
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driving at the time, and Terry was a passenger. Corporal Johnson wrote Moore a warning
citation while another officer spoke with Terry. After the officer informed Corporal
Johnson that he smelled marijuana, Corporal Johnson ordered Terry out of the car and
performed a patdown of Terry. Johnson and the assisting officer discovered 195.5 grams
of methamphetamine and 2.9 grams of marijuana on Terry’s person.
B.
Based on the drugs seized during the traffic stop, Terry was charged with
possession with intent to distribute an unspecified quantity of methamphetamine. Terry
filed a motion to suppress the methamphetamine and any other evidence derived from the
traffic stop, arguing that the placement of the GPS tracker without a warrant violated the
Fourth Amendment. At the suppression hearing, Corporal Johnson testified that he knew
a warrant was required to place the GPS tracking device on the Kia. He further admitted
that MDENT had affixed GPS trackers to cars without first obtaining a warrant in other
instances as well. Corporal Johnson confirmed that he had no way of following the Kia
on April 20, 2016, other than through use of the GPS tracker.
Although the district court found that MDENT’s conduct constituted a flagrant
constitutional violation, it nevertheless denied Terry’s motion to suppress on the basis of
standing. The district court reasoned that Terry had a possessory interest in the Kia when
the MDENT agent attached the GPS tracker to the car, because he was driving the Kia at
that time. However, because Terry had relinquished control over the Kia on the day of
the traffic stop, the district court concluded that Terry lacked standing to challenge the
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GPS search of the Kia on that day. Terry filed a motion to reconsider the district court’s
ruling and submitted evidence that Terry regularly used the Kia and kept the Kia at his
residence. The district court denied Terry’s motion to reconsider.
Following the denial of the motion to suppress but before the district court ruled
on Terry’s motion for reconsideration, a federal grand jury returned a superseding
indictment charging Terry with possession with intent to distribute 50 grams or more of
methamphetamine. Terry filed a motion to dismiss the superseding indictment, which the
district court denied. After trial, a jury convicted Terry of the offense charged in the
superseding indictment. The district court sentenced Terry to a term of 156 months in
prison, followed by a 5-year term of supervised release. Terry timely appeals his
conviction.
II.
In considering the denial of a motion to suppress, we review a district court’s legal
conclusions de novo and its factual findings for clear error. United States v. Perkins, 363
F.3d 317, 320 (4th Cir. 2004). We construe the evidence in the light most favorable to
the Government. Id.
III.
As an initial matter, Terry argues that the district court erred in finding that he did
not have standing to challenge the MDENT agents’ GPS search of the Kia. The
Government concedes error on this point, and we agree. Terry has standing to move for
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suppression of the evidence that resulted from the illegal GPS search, because he was the
driver of the Kia when officers surreptitiously placed the GPS device on the vehicle on
April 18, 2016. See United States v. Rusher, 966 F.2d 868, 874 (4th Cir. 1992) (holding
that defendant, though not the owner of a vehicle, had standing to challenge the search of
the vehicle where he was the driver and no evidence in the record tended to show that he
was illegitimately in possession of the vehicle).
The district court’s holding that Terry did not have standing to move for
suppression of the evidence seized during the traffic stop on April 20, 2016, ignores the
basic principle underlying the “fruit of the poisonous tree” doctrine: defendants may
seek to suppress not only evidence obtained as a direct result of an illegal search but also
evidence later discovered as a result of that search. See Utah v. Strieff, 136 S. Ct. 2056,
2061 (2016); United States v. Oscar-Torres, 507 F.3d 224, 227 (4th Cir. 2007). Having
found that Terry has standing to challenge the warrantless GPS search, we now turn to
the question of whether the evidence later discovered as a result of that search should
have been suppressed as fruit of the poisonous tree.
In general, evidence discovered as a result of a Fourth Amendment violation is
subject to suppression under the exclusionary rule. United States v. Andrews, 577 F.3d
231, 235 (4th Cir. 2009). However, not all such evidence is inadmissible. Oscar-Torres,
507 F.3d at 227. Evidence derived from an illegal search may be admissible depending
upon “whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead by
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means sufficiently distinguishable to be purged of the primary taint.” Id. (citing Wong
Sun v. United States, 371 U.S. 471, 488 (1963)). “Thus, where there is sufficient
attenuation between the unlawful search and the acquisition of evidence, the ‘taint’ of
that unlawful search is purged.” United States v. Gaines, 668 F.3d 170, 173 (4th
Cir. 2012).
In determining whether the taint of the illegal search is purged, we evaluate the
three factors articulated in Brown v. Illinois, 422 U.S. 590, 603-04 (1975). First, we look
to the “temporal proximity” between the unconstitutional conduct and the discovery of
the evidence to determine how closely the discovery of the evidence followed the
unconstitutional search. Id. at 603. Second, we consider the presence of intervening
circumstances. Id. at 603–04. Third and “particularly” significant, we examine “the
purpose and flagrancy of the official misconduct.” Id. at 604; see also Strieff, 136 S. Ct.
at 2062; Gaines, 668 F.3d at 173. “Evidence is admissible when the connection between
unconstitutional police conduct and the evidence is remote or has been interrupted by
some intervening circumstance, so that the interest protected by the constitutional
guarantee that has been violated would not be served by suppression of the evidence
obtained.” Strieff, 136 S. Ct. at 2061 (internal citation and quotation marks omitted).
In this case, we must determine whether there is sufficient attenuation between the
unlawful GPS search and the discovery of the drugs. The government argues that the
intervening act of speeding purged the taint of the warrantless GPS search. Terry, by
contrast, argues that the taint of the warrantless search was not purged, especially given
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the flagrancy of the constitutional violation, and that the evidence should be suppressed.
We agree with Terry.
The attenuation factors set forth by the Supreme Court in Brown v. Illinois
strongly favor suppression here. First, as to temporal proximity, a mere two days passed
between the unlawful placement of the GPS tracker and the discovery of the evidence—
an insubstantial amount of time, as the Government concedes. See Strieff, 136 S. Ct. at
2062 (“Our precedents have declined to find that this factor favors attenuation unless
‘substantial time’ elapses between an unlawful act and when the evidence is obtained.”
(internal citation omitted)); accord United States v. Najjar, 300 F.3d 466, 478 (4th Cir.
2002) (finding a period of weeks to be an insubstantial amount of time in the context of
the attenuation analysis).
Second, even if the illegal conduct in this case—driving five miles above the
speed limit—was an intervening circumstance, this would favor the Government only
slightly. The Government admits that the agents used the illegally obtained GPS data to
confirm the speed of the Kia after first “pacing” the vehicle, calling into question whether
the agents had probable cause for the traffic stop absent the unlawful GPS search. We
can assume without deciding that the agents independently had probable cause, such that
the speeding infraction constituted an intervening circumstance that was unconnected
with the GPS search. Regardless, the other attenuation factors substantially outweigh this
minor infraction.
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Third, and “particularly” important, the constitutional violation here was flagrant.
The exclusionary rule exists to deter police misconduct, and the third attenuation factor
“reflects that rationale by favoring exclusion only when the police misconduct is most in
need of deterrence—that is, when it is purposeful or flagrant.” Strieff, 136 S. Ct. at 2063.
The undisputed evidence here amply supports the district court’s conclusion that the
agents’ misconduct was not simply the result of mistake or ignorance of the law but
instead constituted a flagrant disregard for the well-established warrant requirement set
forth by the Supreme Court in United States v. Jones. See 565 U.S. 400, 404 (2012)
(holding installation of a tracking device on vehicle to be a search under the Fourth
Amendment). Indeed, Corporal Johnson testified that he knew a warrant was required
for the tracking device when he placed it on the Kia, and despite this knowledge, he
failed to inform the magistrate that he had already placed the GPS tracker before applying
for the warrant—a practice that had occurred in other cases. The exclusionary rule exists
to deter exactly this type of official misconduct.
The agents’ purposeful disregard for the warrant requirement in this case renders
wholly unavailing the government’s attempts to reframe the agents’ misconduct as
justified by exigency or mere mistake. The flagrancy of the official misconduct also
readily distinguishes this case from the unpublished decision cited by the Government in
support of its attenuation argument, United States v. Richard, 528 F. App’x 323 (4th Cir.
2013) (finding no flagrancy where officers conducted warrantless GPS search before the
Supreme Court’s decision in United States v. Jones and determining there was sufficient
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attenuation between the official misconduct and discovery of evidence). Because the
attenuation factors all weigh in favor of suppression here, and especially considering the
flagrancy of the official misconduct, we hold that the evidence discovered as a result of
the GPS search is fruit of the poisonous tree and should have been suppressed.
Contrary to the government’s assertion, our holding in United States v. Sprinkle,
106 F.3d 613 (4th Cir. 1997), does not compel a different result. In Sprinkle, we held that
a defendant was not entitled to suppression of the firearm he used to shoot at police
officers, even though the officers had unlawfully stopped him without reasonable
suspicion. 106 F.3d at 619. Our decision in Sprinkle is readily distinguishable from the
case before us here.
First, unlike the officers in Sprinkle, who happened upon the defendant in the
course of their neighborhood patrol and decided to conduct an investigative stop, see id.
at 616, the agents here sought out and followed the Kia using the illegally placed GPS
tracker. Indeed, Corporal Johnson testified that he could not have observed the traffic
violation or initiated the traffic stop but for the GPS data. Second, unlike the minor
speeding violation observed by the agents here and confirmed by the GPS tracker, the
shooting in Sprinkle was “entirely unconnected” with the illegal stop. See Strieff, 136 S.
Ct. at 2062 (finding an outstanding warrant to constitute an intervening circumstance
because it was “entirely unconnected” with the illegal stop and predated the officer’s
investigation). Here, the traffic violation was not “entirely unconnected” with the illegal
GPS search. In fact, the speeding violation was confirmed by—and intimately tied to—
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the illegal GPS search. Third, we expressed concern in Sprinkle that the defendant would
have avoided the consequences of the serious intervening criminal activity if the weapon
had been suppressed. See 106 F.3d at 619. Here, there is no indication in the record that
the consequences of the speeding infraction would have been avoided were the
methamphetamine to be suppressed. Thus, the policy concerns animating our decision in
Sprinkle simply are not present here.
Finally, contrary to the government’s position, our decision in Sprinkle did not and
could not establish a bright-line rule that any illegal conduct by a defendant will
inevitably attenuate the taint of a Fourth Amendment violation. It is true that a suspect’s
commission of a new, distinct crime as serious as striking a law enforcement officer,
aiming a gun at police, or shooting a firearm will virtually always constitute a severe
intervening circumstance that breaks the causal chain. See id. at 619, 619 n.4. But as the
Supreme Court’s fact-intensive analysis in Strieff demonstrates, a proper attenuation
analysis requires a case-specific balancing of the circumstances in light of the objectives
of the exclusionary rule. We therefore reject the Government’s attempt to ossify Sprinkle
into an inflexible maxim.
The attenuation exception to the exclusionary rule applies when the nexus between
the government’s illegal conduct and the evidence is so weak that the taint of the
illegality is dissipated. Segura v. United States, 468 U.S. 796, 805 (1984). Because the
nexus between the agents’ illegal conduct and the evidence is strong, and considering the
flagrancy of the constitutional violation in this case, we find that the discovery of the
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evidence seized during the traffic stop was not sufficiently attenuated from the unlawful
GPS search such that the taint of that unlawful search was purged. Thus, the evidence is
fruit of the poisonous tree and should have been suppressed. * To hold otherwise would
allow the government to disregard a constitutional requirement simply by using an illegal
GPS search long enough to observe a minor traffic violation. Such a holding would
entirely undermine the very purpose of the exclusionary rule: to deter police misconduct.
IV.
For the foregoing reasons, we reverse the district court’s denial of Terry’s
suppression motion and vacate his conviction.
REVERSED, VACATED, AND REMANDED
*
Because we hold that the methamphetamine should have been suppressed and
vacate Terry’s conviction on this ground, we need not address his remaining arguments
as to the superseding indictment and his sentence.
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