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United States of America v. Miguel Ortiz

July 20, 2012

UNITED STATES OF AMERICA
v.
MIGUEL ORTIZ, A/K/A "MIGUELITO,"



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM TABLE OF CONTENTS

I. INTRODUCTION.............................................................................................................. 1

II. BACKGROUND

................................................................................................................ 1

A. How GPS Trackers Work and How DEA Agents Use Them ........................................ 2

B. Initial Investigation-Information from Confidential Source of Information ............ 4

C. Investigation Following November 8, 2010, Meeting with Confidential Source of Information; Tracker Number One Installed ................................................................. 6

D. Use of Tracker Number One; Increase in Activity at the Warehouse .......................... 8

E. Surveillance of Defendant on January 24, 2011 .............................................................. 9

F. Placement of Tracker Number Two ............................................................................... 11

G. Monitoring of Tracker Number Two Leads to Recovery of $2.3 Million in Suspected Drug Proceeds .................................................................................................................. 14

III. LEGAL STANDARD ...................................................................................................... 15

IV. DISCUSSION ................................................................................................................... 15

A. United States v. Jones ...................................................................................................... 16

B. Whether the Use of the GPS Trackers Was Lawful ..................................................... 18

1. Reasonable Suspicion ................................................................................................... 18

2. The Automobile Exception .......................................................................................... 29

3. Conclusion ..................................................................................................................... 34

C. Whether the Exclusionary Rule Applies ........................................................................ 34

1. The Exclusionary Rule and Davis v. United States ................................................... 35

2. Parties' Arguments ...................................................................................................... 37

3. Analysis ......................................................................................................................... 38

V. CONCLUSION ................................................................................................................ 44

I. INTRODUCTION

Defendant Miguel Ortiz is charged by Third Superseding Indictment with offenses arising from his alleged involvement in a large-scale drug distribution scheme. Defendant filed several pretrial motions, and the Court held a hearing and oral argument on June 21 and 22, 2012. This Memorandum addresses defendant's Motion to Suppress Evidence, which presents issues relating to the government's use of GPS tracking devices left unsettled by the United States Supreme Court's decision in United States v. Jones, 132 S. Ct. 945 (2012). For the reasons that follow, the Court concludes that installation and monitoring of a Global Positioning System ("GPS") tracking device on a vehicle requires a warrant. The Court further concludes that the so-called "good faith" exception to the exclusionary rule does not apply due to the absence of binding precedent authorizing warrantless GPS installation and tracking. Accordingly, the Court grants defendant's Motion to Suppress Evidence.

II. BACKGROUND

Defendant is charged by Third Superseding Indictment with: one count of conspiracy to distribute five kilograms or more of cocaine, twenty-eight grams or more of cocaine base ("crack"), and marijuana, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)--(C); two counts of distribution of and aiding and abetting the distribution of five kilograms or more of cocaine, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A) and 18 U.S.C. § 2; and one count of distribution of and aiding and abetting the distribution of five kilograms or more of cocaine within 1,000 feet of a school, in violation of 21 U.S.C. § 860(a) and 18 U.S.C. § 2.*fn1 Defendant filed a document entitled Omnibus Pre-Trial Motions on May 11, 2012 ("Omnibus Motion"), which contained ten separate motions, including the Motion to Suppress Evidence. He subsequently filed two amendments to the Omnibus Motion as well as a Motion in Limine.

The Court held a hearing and heard oral argument on June 21 and 22, 2012. At the hearing and by Orders dated June 22, 2012, the Court resolved a number of defendant's pretrial motions, set forth a schedule and procedure to address certain other motions, and took under advisement, inter alia, defendant's Motion to Suppress Evidence, on which the Court now rules.

The Motion to Suppress Evidence arises from the fact that Drug Enforcement Administration ("DEA") agents attached two separate GPS tracking devices to defendant's vehicle during their investigation without obtaining a warrant. Defendant moves to suppress the GPS data and "any and all observations made by agents as a result of utilizing" the GPS monitoring. (Def. Mot. Suppress Evidence ("Def. Mot."), part of Def. Miguel Ortiz's Omnibus Pre-Trial Motions, at 3.)

A. How GPS Trackers Work and How DEA Agents Use Them

DEA agents typically use a GPS tracker that is "the size of [a] fist, and it has two very strong magnets attached to it." (June 21, 2012, Hr'g Tr. ("6/21/12 Tr.") 65.) Because each tracker has its own battery, it does not rely on the car for power. (Id.) The DEA agents call this style of device a "slap on" tracker because it can be installed merely by "slapping it" onto a vehicle's undercarriage. (Id. at 67.) The case agent, DEA Special Agent David Pedrini, testified that agents generally place the tracker on "the bottom of the undercarriage of the vehicle, . . . usually towards the rear bumper." (Id. at 65.) The tracker "pings" periodically, meaning that its location is logged wirelessly to a remote computer server at a time interval that is adjustable.*fn2

(Id. at 65--66; see also id. at 129.) Agents can log on to a secure website to view the log of the tracker's location. (Id. at 66.) According to Agent Pedrini, the tracker has a "50 yard to 100 yard" margin of error, so his practice is to confirm a vehicle's location by physical surveillance if he needs to determine it with precision. (Id. at 66--67.) Moreover, because the pings are one-directional, agents only know where the tracker is when it transmits a ping and cannot remotely determine where the tracker is until it pings again. (Id. at 68 ("[I]t's only telling us where the vehicle is at [intervals of] 20 minutes. Let's say we ping it at 2:00 o'clock, that vehicle can drive around and go wherever it wants until 2:20 and we don't know where that vehicle went until 2:20, then it tells us where it is.").)

Agent Pedrini stated at the hearing that his "practice" in determining whether or not to use a tracker in an investigation is that "if the target is big enough, and we believe that the . . . vehicle is used to distribute drugs, or distribute or pick up drug proceeds, then . . . I would like to put [a] tracker on that vehicle." (Id. at 64--65.) When asked whether he believed he needed a warrant to install a tracker, Agent Pedrini testified that, in his fifteen years of experience with the DEA in the Eastern District of Pennsylvania, "if the vehicle was parked on a public way, on a public street," the agents did not need a warrant or a court order. (Id. at 67; see also id. at 125 ("I thought I was acting in good faith, in my 15 years here in the district. I didn't believe we needed a warrant.").) However, Agent Pedrini understood that "if the vehicle was parked inside of a garage," a warrant would be necessary. (Id. at 67.) He testified that if he had

Air Force Space Command, "Factsheet: Global Positioning System," United States Air Force (June 26, 2012), http://www.af.mil/information/factsheets/factsheet.asp?id=119. The twenty-four satellites "orbit the earth every 12 hours, emitting continuous navigation signals," and devices like the trackers "receive these signals to calculate time, location and velocity." Id. needed a warrant in this case, he would have applied for one by contacting the United States Attorney's Office. (Id. at 114.)

Defendant's counsel cross-examined Agent Pedrini extensively about the agent's understanding of the law governing the use of GPS trackers. Agent Pedrini acknowledged that the interpretation of the Constitution could change over time and that "the law changes based upon the way technology changes." (Id. at 126.) The following exchange also took place:

Q. So you certainly knew then, because you've dealt with these before, that with respect to these trackers other jurisdictions feel otherwise with respect to the trackers. Did you know that?

A. I think I did, but I also knew that this district didn't require an order.

Q. Did you[] know that there was a case on appeal . . . such that you knew that the United States Supreme Court was hearing that very issue?

A. No. Q. Did you think to yourself, at all, in any point of time that, geez, I might want to run this by an attorney, someone who may know a bit more than I about whether or not we can actually put a tracker on the car?

A. No.

Q. But it's something you could have done, you just chose not to?

A. Correct. (Id. at 126--27.)

B. Initial Investigation-Information from Confidential Source of Information

In October 2010, Agent Pedrini and his partner, DEA Special Agent Paul Gimbel, received information from a confidential source of information ("SOI") that Miguel Ortiz's co-defendant Nelson Rodriguez was operating a large drug trafficking group ("DTG") out of a garage or warehouse at 3075 Jasper Street in North Philadelphia ("Warehouse"). (Id. at 49--50.)

The SOI further informed the agents that another co-defendant, Gribbin Ortiz, was the owner of the Warehouse and that two other co-defendants, Angel Ayala-Aponte and Nelson Rodriguez's son, Nelson Rodriguez, Junior, were involved in the DTG. (Id. at 50, 54--55.)

The agents took the SOI with them to investigate the Warehouse. (Id. at 50--52.) At that site, the agents learned that it spanned an entire block between Helen and Jasper Streets and had entrances on both streets such that "if you went in on the Jasper Street side, you could . . . exit on the Helen Street side." (Id. at 50--52, 71.) Clearfield Street was the cross-street to the north, and the Willard School adjoined Helen and Jasper Streets to the south. (Id. at 51--53.) Agent Pedrini opined at the hearing that the Warehouse was "ideal for drug trafficking" for several reasons: both Jasper and Helen Streets were one-way streets without much vehicular traffic and had a "number of garages," which made it "very difficult to conduct surveillance or park for significant periods of time" because it would "look out of the ordinary"; when the school at the end of Jasper Street was not open, Jasper Street turned into a dead-end street because the school's gate would be closed. (Id. at 52--54.) Agent Pedrini also observed that there were surveillance cameras at each entrance to the Warehouse and that there were no signs that there was "an official business" operating out of the property. (Id.) By searching public records, the agents confirmed that Gribbin Ortiz was the owner of the Warehouse and that no businesses were registered as operating out of the Warehouse. (Id. at 54.) They also learned that Nelson Rodriguez and Ayala-Aponte had prior convictions for cocaine trafficking. (Id. at 58.)

Agents Pedrini and Gimbel began investigating the SOI's allegations, performing physical surveillance at the Warehouse for limited periods of time in October and November 2010 when they were not busy with other cases. (Id. at 55.) The agents noted that the Warehouse "wasn't very active," although they observed Nelson Rodriguez and Ayala-Aponte visiting the Warehouse for "short periods of time." (Id. at 55--56.) Whenever individuals entered the Warehouse, Agent Pedrini noticed that "they close[d] the garage doors pretty quickly as cars were coming in and out," which he found suspicious because he believed a legitimate business would leave its doors open. (Id. at 56--57.)

On a day in late October 2010, Agent Pedrini was parked at the intersection of Helen and Clearfield Streets when he observed a red minivan pull into the Jasper Street entrance of the Warehouse. (Id. at 56.) The garage door closed "immediately." (Id.) Seeking to confirm that drug-trafficking activity was occurring in the Warehouse, Agent Pedrini arranged for Philadelphia police officers to follow the red minivan when it left the Warehouse forty-five minutes later. (Id. at 59--60.) After "several hours" of surveillance, the police pulled over the minivan. (Id. at 60.) During ...


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