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United States v. Jesus-Nunez

July 27, 2010

UNITED STATES OF AMERICA
v.
EDWARD JESUS-NUNEZ



The opinion of the court was delivered by: Sylvia H. Rambo United States District Judge

MEMORANDUM

On January 27, 2010, Defendant, Edward Jesus-Nunez was charged in a four-count indictment with (1) criminal conspiracy to distribute and possession with intent to distribute cocaine hydrochloride and cocaine base, in violation of 21 U.S.C. § 846; (2) criminal conspiracy to distribute and possession with intent to distribute marijuana, in violation of 21 U.S.C. § 846; (3) distribution and possession with intent to distribute cocaine hydrochloride and cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 18 U.S.C. § 2; and (4) use of a communication facility in committing a drug crime, in violation of 21 U.S.C. § 843(b). On January 29, 2010, Defendant pled not guilty to the charges in the indictment. On June 18, 2010, Defendant filed a motion to suppress evidence claiming the Government violated his Fourth Amendment rights by attaching and monitoring the movement of his vehicles on public thoroughfares via a magnetic Global Positioning System ("GPS"). (Doc 143.) The parties have briefed the motion, and it is ripe for disposition. For the reasons that follow, the court will deny Defendant's motion.

I. Background

The following facts are taken from the parties' respective briefs. The federal Drug Enforcement Agency ("DEA"), Lebanon County Drug Task Force, Lebanon Police Department, Lebanon County District Attorney's Office, Internal Revenue Service, United States Postal Service, and the Pennsylvania State Police began an investigation into Defendant's drug-trafficking activity in late 2008.

The Government asserts that from the time the investigation began until February 9, 2009, investigators gathered information from several confidential sources that Defendant was a large scale supplier of drugs, and that he supplied drug dealers in Lebanon, Pennsylvania, and elsewhere with crack-cocaine and marijuana. According to the Government, some of these sources also told investigators that Defendant had personally sold them crack-cocaine and/or marijuana. In addition, visual surveillance conducted by investigators witnessed Defendant engaging in numerous transactions in which they firmly suspected he was selling or buying crack-cocaine or marijuana.

On February 9, 2009, DEA Special Agent Joseph Myers attached a magnetic GPS device to the underside of the rear bumper of Defendant's Mercedes Benz, which was parked on a public street outside of Defendant's apartment. In March 2009, Special Agent Myers attached a separate magnetic GPS device to the underside of the rear bumper of Defendant's Honda Accord, which was also parked on a public street outside of Defendant's apartment. The magnetic GPS devices were not hard-wired into either car, and did not interfere with Defendant's use of either vehicle. From the time that these GPS devices were attached until Defendant's arrest on January 22, 2010, investigators used the GPS devices to track the movement of Defendant's vehicles. According to the GPS report, there were 4,307 registered stops. The only thing that the GPS device tracked was the date, time, and precise location of each stop; information that could have been obtained by 24-hour visual surveillance of Defendant's vehicles.

On several occasions during the eleven plus months that the GPS devices were attached, Special Agent Myers briefly removed the magnetic GPS devices from the underside of the rear bumpers of Defendant's vehicles to change the batteries and then re-attached them to the underside of the rear bumpers of Defendant's vehicles. Every time Special Agent Myers changed the batteries of the GPS devices, he did so when the vehicles were parked on a public street.

II. Discussion

Defendant argues that the Government infringed upon his Fourth Amendment rights by tracking the movements of his vehicles with the GPS devices for an extended period of time without first obtaining a warrant or having probable cause to do so. Defendant does not argue that the mere act of placing the GPS device on the undercarriage of his cars constituted an unreasonable search and seizure. Thus, the court confines its analysis simply to whether the Government's conduct of using a GPS device to track the movement of Defendant's vehicles for nearly a year without first obtaining a warrant violates Defendant's Fourth Amendment rights.

The Fourth Amendment protects against "unreasonable searches and seizures." U.S. CONST. amend. IV. Although it is not entirely clear from his brief, it appears that Defendant argues that the GPS tracking device constituted an unreasonable search under the Fourth Amendment as opposed to an unreasonable seizure. Defendant does not argue that the GPS device in any way interfered with his possessory interest in his vehicles such that they affected the cars' performance or Defendant's ability to drive them whenever and where he wanted, which is the test for whether a Fourth Amendment seizure occurred. See United States v. Karo, 468 U.S. 705, 712-713 (1984) ("A 'seizure' occurs when there is some meaningful interference with an individual's possessory interests in [the] property.") (internal citations omitted).

Whether a search violates the Fourth Amendment embraces two discrete questions: (1) whether the individual has exhibited an actual, subjective expectation of privacy; and (2) whether the individual's expectation of privacy is one that society recognizes as reasonable. See Katz. v. United States, 389 U.S. 347, 361 (1967). From the court's review of the case law, Defendant loses on both accounts.

Defendant candidly acknowledges the applicability of United States v. Knotts, 460 U.S. 276 (1983).In Knotts, a beeper was placed inside a five-gallon container of chloroform, then sold by a Minneapolis chemical company to a co-defendant, who then delivered it to another individual who later delivered it to the defendant's cabin nearly 100 miles away in rural Wisconsin. Id. at 278. The government used the beeper to track the movement of the container as it traveled. The defendant filed a motion to suppress arguing that the warrantless installation of the beeper violated his Fourth Amendment rights. The district court denied his suppression motion, and the defendant was convicted at trial. Id. at 279. A divided panel of the Eighth Circuit reversed the conviction, finding that the monitoring of the beeper was prohibited by the Fourth Amendment because its use had violated the defendant's reasonable expectation of privacy, and that all of the information derived after the location of the cabin was a result of the illegal beeper monitoring. Id. The Supreme Court disagreed and reversed the Eighth Circuit. In so doing, it reasoned as follows:

The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile.

A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [the co-defendant] travelled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction, the fact of whatever stops he ...


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