UNITED STATES OF AMERICA v. BRIAN D. TERRY
US Court of Appeals for the Fourth Circuit, Gregory, November 30, 2018,
GPS – A car stopped for speeding based on a GPS device placed without a warrant or exception was illegal, even though a warrant was obtained after the device was placed on the car.

Facts:
In 2016, WV police obtained information that Terry was involved in CDS distribution.
While conducting surveillance, they observed Terry drive a gold Kia Optima to a local store. Once he parked, officers approached Terry. One officer spoke with Terry (and wrote him a marijuana citation for the small quantity of marijuana he had in his possession) while the other secretly placed a GPS tracker on the car Terry was driving.
Afterwards, the WV officers obtained a search warrant to “ping” (instantly get location information from) Terry’s cell-phone and place a GPS tracker on the car that Terry had been driving.
The affiant did not mention in the warrant that a tracker had already been placed on the car.
When GPS data showed that the car drove to Ohio and was on its way back, the WV officers conducted a car stop for speeding. The stop was based on pacing confirmed by GPS data showing that the car was traveling at 5 mph above the speed limit. Apx. 200 grams of methamphetamine was recovered from Terry.
Terry challenged the seizure, arguing that the evidence should be thrown out because it was only obtained because of an illegal search in placing the GPS on the car.
During the suppression hearing, one of the WV officers testified that he knew he was supposed to get a warrant. He also testified that his drug unit had placed GPS devices on cars without a warrant other times in the past.
The district court found that Terry didn’t have standing to challenge the search because it wasn’t his car (it belonged to his girlfriend).
Terry appealed, arguing that because the GPS was placed on the car when he was driving it, he had standing. Because of this, and because he argued that the GPS placement was illegal, Terry argued that the evidence from the car stop should be suppressed.

Held: The Fourth Circuit held that because the GPS device was placed while Terry was driving the car, he had standing to challenge the search. Because the GPS was placed without a warrant or exception, it was an illegal search.

GPS Tracker – Placing a GPS tracker on a vehicle is a “search” that must be justified by a search-warrant or an exception to the warrant requirement

Search – Exclusionary Rule – Attenuation – Evidence recovered after an illegal search or seizure might still be used in evidence if something “attenuated” the police misconduct.

Exclusionary Rule – Attenuation – The more closely related the recovery of evidence was to the police misconduct, the more likely it is to be excluded.

Exclusionary Rule – Attenuation – To decide whether illegal evidence has been attenuated and may be allowed at trial, the Court will consider the following factors:
– How much time elapsed between the illegal action and the recovery of evidence?
– Were there intervening circumstances?
– What was the purpose and “flagrancy” of the police misconduct?

From the Case: “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…”

From the Case: 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” given how minor the crime is.

Exclusionary Rule – “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.”

From the Case: The officers’ “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… Indeed, Corporal Johnson testified that he knew a warrant was required for the tracking device when he placed it on the Kia…”

From the Case: “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 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.”

Note: Exigent Circumstances requires probable cause that, if you wait to get a warrant, there is a substantial risk of: harm to a person, destruction of evidence, or escape of someone subject to arrest.

From the Case: “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 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.”

Practice Note: In some cases, exigent circumstances may justify placement of a GPS device on a vehicle before you are able to obtain a warrant. If you are justified in doing so, include that in the search-warrant application. Do not pretend that it didn’t happen, since that works against your argument that it was required by exigent circumstances.