Friday, November 30, 2018

Speeding Two Days Later Doesn't Purge Taint of Warrantless GPS Tracker Placement

USv. Terry: Terry was the subject of a local drug task force investigation in Charleston, West Virginia. As part of that the officers put a GPS tracker on a car he drove without a warrant. A warrant was subsequently obtained (using facts that had produced a prior search warrant of Terry’s home that turned up nothing), but the officer didn’t tell the magistrate that the tracker had already been placed. Two days later, the officers used to the GPS to track the car to Columbus, Ohio and back, setting up pursuit that resulted in pulling the car over for doing 50 mph in a 45 zone. Terry was the passenger, his girlfriend was the driver. Eventually, nearly 200 grams of meth were found on Terry’s person. He was charged with possession with intent.

Terry moved to suppress the meth, arguing that the warrantless placement of the GPS tracker violated Jones and that the subsequent stop and discovery of the meth were fruit of the poisonous tree. The Government countered that an intervening act – the speeding – purged the taint of the warrantless search and thus suppression was inappropriate. The district court held that the officers had flagrantly violated the Fourth Amendment in placing the GPS tracker on the car without a warrant, but that Terry lacked standing to challenge it because he wasn’t driving when the stop happened. The district court didn’t get to the Government’s attenuation argument. Terry pleaded guilty and was sentenced to 156 months in prison.

On appeal the Fourth Circuit reversed the denial of the suppression motion. First, it held that, in line with the Government’s concession of error, that Terry indeed had standing to challenge the stop of the car and the search that uncovered the meth under the fruit of the poisonous tree doctrine. Then it examined the Government’s attenuation argument and found that the stop and search was not sufficiently attenuated from the warrantless placement of the GPS tracker. The time between the placement and the stop was minimal, the conduct of the officers in making the initial violation was flagrant, and the intervening act was a minor traffic offense. Those factors distinguished this case from earlier Fourth Circuit cases finding attenuation. Terry’s conviction was vacated and the case remanded to the district court.

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