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.

Suspended Sentence Is "Criminal Justice Sentence" Under Guidelines

USv. Brown: Brown pleaded guilty to being a felon in possession of a firearm in 2017. In 2008, he was convicted in Virginia state court of possession with intent to distribute cocaine and sentenced to 10 years in prison, with 8 years and 9 months suspended, provided he maintained “good behavior for ten years upon release.” He was released from custody in 2008. His criminal history score on the firearm charge was enhanced by two points because he committed the offense while still “under a criminal justice sentence.”

The Fourth Circuit affirmed Brown’s sentence, including the two-point enhancement. Brown argued that for the enhancement to apply the sentence must have a “custodial or supervisory component,” which the 10-year “good behavior” period was not. The court disagreed, concluding that although he was not being actively supervised, Brown was “still subject to the authority of the state court, which could revoke the suspended sentence.” It was essentially the same as “unsupervised probation,” which the Guideline commentary specifically includes in the definition of criminal justice sentence.

Conviction Under 21 USC 843 Is "Controlled Substance Offense"

USv. Allen: Allen pleaded guilty to being a felon in possession of a firearm. One of his prior felonies was a conviction under 21 USC 843 for using a communication facility to facilitate a drug trafficking crime. At sentencing, the district court concluded that Allen’s prior conviction qualified as a “controlled substance offense” and enhanced his sentence accordingly.

The Fourth Circuit affirmed. The Court noted that in 1995 it had held that 843 convictions were controlled substance offenses under the Guidelines and commentary as they then existed. Since then, the commentary has been revised (to fix a circuit split) to specifically include 843 convictions as controlled substance offenses, so long as the offense that was facilitated was itself a controlled substance offense. Because Allen’s prior conviction facilitated possession of crack with the intent to distribute it, it counted as a controlled substance offense.