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Legal Research & Writing Lockwood Memo 4 11/24/2011

United States v. Johnson Crim. No. SA-035-DJ MOTION TO SUPPRESS Sam Johnson (hereinafter referred to as the defendant) does hereby move this Court to suppress the evidence obtained as a result of the violation of his Fourth Amendment rights. In particular, defendants Fourth Amendment rights were violated when U.S. Drug Enforcement Agency (hereinafter referred to as DEA) officers placed a Global Positioning System (hereinafter referred to as GPS) device under defendants vehicle without his knowledge or consent and without a warrant and subsequently used the GPS device to continuously track the movements the defendants vehicles for a period of two months. FACTS The defendant and Louise Wilson (hereinafter referred to as Wilson) are former high school classmates. While in high school, defendant and Wilson were engaged in a personal relationship. After graduation the defendant and Wilson went their separate ways and lost touch. Wilson purchased a ranch near Laredo, Texas (hereinafter referred to as the ranch) where she successfully grew cotton and raised angora goats. Sometime in 2011, a severe drought destroyed the ranch. Likewise in 2011, defendant and Wilson reconnected via the Internet and a personal relationship ensued. In June 2011, a local sheriff noticed an inordinate amount of vehicle traffic to and from the ranch. The sheriff contacted the DEA and the U.S. Border Patrol. DEA agents set up surveillance outside the ranch which ascertained the following information: a variety of vehicles visited the ranch; each vehicle stayed at the ranch on average between four and five hours; many
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Legal Research & Writing Lockwood Memo 4 11/24/2011

of the visiting vehicles had previously in the day crossed the border between the United States and Mexico; and two vehicles registered to defendant (manufactured by Mercedes-Benz and Range Rover, respectively) visited the ranch multiple times in a single day and stayed for an average of three hours per visit. This information led DEA agents to suspect that Wilson was involved in the illegal drug trafficking. Subsequently, DEA agents began monitoring every vehicle that entered and exited the ranch. The surveillance from outside the ranch produced limited information because events that transpired within the metes and bounds of the ranch were inaccessible. After the second occasion in which DEA agents observed a vehicle registered to defendant visiting the ranch, DEA agents followed defendants vehicle to a Holiday Inn motel in Laredo, Texas, where DEA agents confirmed defendant met with three Mexican nationals. While defendants car was unattended in the parking lot of the Holiday Inn, DEA agents placed a GPS device under defendants vehicle. Sometime later, defendant and Wilson drove to San Antonio, Texas together in a truck registered to Wilson. While Wilsons truck was unattended, DEA agents placed a GPS device on the truck. DEA agents subsequently installed GPS devices on the vehicles of fifteen additional individuals whom at some point consorted with either defendant or Wilson, including Wilsons mother, sister, and her hairdresser. DEA agents tracked the movement of each vehicle for two months during which time DEA agents gathered the following information: defendant and Wilson frequently travelled to a motel in Laredo, Texas; defendant and Wilson travelled to Mexico at least twice a week; defendants vehicle travelled onto the ranch nearly every day; defendant parked the surveilled vehicle in his garage; Wilson visited a psychiatrist office and pharmacy; defendant visited a psychiatrist office, a hair replacement clinic and several live adult entertainment establishments.
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Legal Research & Writing Lockwood Memo 4 11/24/2011

The DEA obtained an arrest warrant for defendant and Wilson based on the incriminating pattern of travel revealed by the GPS monitoring and the testimony of an individual caught with crystal methamphetamine near Wilsons ranch that testified that he was delivering the crystal methamphetamine to Wilson and that defendant was the boss. Defendant and Wilson were arrested, charged and convicted of illegal drug trafficking offenses. TRADITIONAL FOURTH AMENDMENT ANALYSIS The Fourth Amendment provides the right of the people to secure in their person, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated U.S. Const., amend. IV. Currently, Fourth Amendment challenges are governed by the reasonable expectation of privacy test announced in Katz v. United States, 389 U.S. 351 (1967). In Katz, the Court declared that the use of a warrantless wiretap installed on a public phone booth violated the privacy upon which he justifiably relied, and thus constituted an unreasonable search and seizure. Id. at 353. The Court has also stated that a reasonable expectation of privacy must be grounded in something outside the Fourth Amendment, such as being recognized or permitted by society. Rakas v. Illinois, 439 U.S. 128, n.12 (1978). Therefore, the essential inquiry is whether the DEA agents installation of a GPS device and subsequent monitoring of defendants vehicular movements for two months violated a socially recognized expectation of privacy?

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Legal Research & Writing Lockwood Memo 4 11/24/2011

THE CURRENT STATE OF THE LAW ON GPS MONITORING The Court has not yet ruled upon the constitutionality of warrantless placement, tracking, and monitoring by a GPS device. In United States v. Karo, 468 U.S. 705 (1984), the Court held the governments monitoring of a tracking beeper inside a metal can of ether inside a residence constituted a Fourth Amendment search, despite the physical intrusion into the home. In Kyllo v. United States, 533 U.S. 27 (2001), the Court found the governments use of a thermal imager upon the defendants home was a Fourth Amendment search because the technology revealed information that was unavailable to the public without physical intrusion into the home. The most relevant case is United States v. Knotts, 460 U.S. 276, 281 (1983), in which the Court found no Fourth Amendment search when government agents monitored a tracking beeper while the suspect traveled over public roads because the defendants movements were in plain view. The beepers used in Knotts were battery operated radio transmitters that provided relative location in case visual surveillance was lost. Id. at 277. The Court explained that officers followed the car in which the [beeper] had been placed, maintaining contact by using both visual surveillance and a monitor which received signals sent from the beeper. Id. at 278. At trial, it was the officers that testified to what they saw. Id. at 278. Knotts stands for the proposition that human observation supplemented with technology does not intrude on a reasonable expectation of privacy and is therefore not a Fourth Amendment search.

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Legal Research & Writing Lockwood Memo 4 11/24/2011

KNOTTS IS NOT CONTROLLING The use of GPS devices is entirely different the use of beepers in Knotts. In Knotts, law enforcement agents monitored a discrete journey and made limited use of the beeper signals. Id. at 284. The DEA agents in the case at bar continuously monitored the totality of the defendants movements for two months. In Knotts, law enforcement agents utilized one beeper to track the relative location of the defendant as a stopgap in case agents lost visual contact; the beeper was used to supplement visual observation. Id. at 278. In the case at bar, the GPS devices were used to supplant human observation. DEA agents utilized seventeen GPS devices, each of which was wholly automated. Once each device was installed and activated, it automatically and continuously received latitude, longitude and altitude coordinates allowing real-time pinpoint location within a few centimeters. Brief of Center for Democracy & Technology, Electronic Frontier Foundation, et al. as Amici Curiae Supporting Respondents at 6, United States v. Jones, No. 10-1259 (U.S. argued Oct. 3, 2011), WL 4590838 [hereinafter Brief]. In Knotts, the testimony of the law enforcement agents was the surveillance evidence. Knotts, 460 U.S. at 278. In the case bar, no testimony was required by the DEA agents; rather, thousands of pages of data garnered from the GPS devices constituted the surveillance evidence. Knotts does not control the issue at bar because of the drastically longer length of the surveillance and the autonomy and number of devices used.

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Legal Research & Writing Lockwood Memo 4 11/24/2011

AN EXPECTATION OF PRIVACY THAT SOCIETY RECOGNIZES AS REASONABLE Whether an expectation of privacy is reasonable depends largely upon whether the information gathered has been expose[d] to the public. Katz, 389 U.S. at 35. In Bond v. United States, 529 U.S. 334 (2000), a Border Patrol agent squeezed the soft luggage of a passenger to determine if it contained drugs. The Government argued the defendant did not have an expectation of privacy because the luggage was exposed to the public. Id. at 337. The Court determined the action of the Border Patrol agent constituted a Fourth Amendment search even though the luggage was exposed to the public because the defendant did not expect that other passengers or bus employees [would], as a matter of course, feel the bag in an exploratory manner. Id. at 338-39. Therefore, to determine if something is exposed to the public, the inquiry is what a reasonable person expects another person might do, not what another person can physically or lawfully do. Id. A reasonable person cannot expect another person to gather information by means not readily duplicated by a member of the public at large. Dow Chemical Co. v. United States 476 U.S. 227, 238 (1986). In Dow, the Court held that the EPAs aerial observation of a chemical plant was not a Fourth Amendment search because the photos taken were akin to mapmaking which [a]ny person with an airplane and an aerial camera could readily duplicate. Id. In the case at bar, a reasonable person similarly situated as the defendant would not expect a member of the public at large to install seventeen GPS devices to continuously monitor his movements and the movements of his companion, friends and family within a 150-mile radius. Indeed, to affix such a device to an owners vehicle and track his movements without his consent would undoubtedly give rise to tort liability, and several states have criminally sanctioned such use.
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Legal Research & Writing Lockwood Memo 4 11/24/2011

Brief, supra at 14. The ability of the public at large to track individuals with GPS devices is further complicated by the fact that the government itself owns the entire GPS satellite network and exclusively controls public access to it. Id. While its conceivable that a member of the public at large could engage in traditional visual surveillance to gather such information, human observation cannot duplicate the precision, scope and quantity of information garnered by a GPS device. Id. at 13. Each installed device gathered and stored an extensive amount of latitude, longitude, altitude, speed, and direction coordinates. Id. at 6. Only by the use of mapping software did this information become intelligible to DEA agents. Id. A GPS device facilitates a new technological perception of the world, that is distinct from human observation. People v. Weaver, 909 N.E.2d 1195, 119 (N.Y. 2009). One does not reasonably expect another will ascertain intimate details associated with ones life. Dow, 476 U.S. at 228. The intrusive nature of a GPS makes widespread Orwellian surveillance of innumerable persons a distinct possibility. Religious affiliation could be deduced from frequent visits to a particular church. Political affiliations could be deduced from frequent visits to a chapter or club. The Court has recognized the vital relationship between freedom to associate and privacy in one's associations. Nat'l Ass'n for Advancement of Colored People v. State of Ala. ex rel. Patterson, 357 U.S. 449, 462 (1958). Similarly, frequent visits to an oncologist could suggest a cancer diagnosis. The GPS devices in the case at bar revealed that the defendant visiting medical doctors for the treatment of alopecia and psychiatric counseling. The Court has recognized an interest in preventing the disclosure of personal matters. Whalen v. Roe, 429 U.S. 589, 599 (1977). Medical treatment lies at the heart of ones personal matters because it often involves the innermost details of ones personal life. Society has acknowledged the private nature of medical records by the ratification of The Privacy Act of 1974. 5 U.S.C.
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Legal Research & Writing Lockwood Memo 4 11/24/2011

552a (1974). Surveillance by a GPS device poses unique dangers to personal privacy that traditional surveillance techniques to do not. VISUAL SURVEILLANCE BY LAW ENFORCEMENT WILL NOT BE COMPROMISED The Government suggests that equating surveillance by a GPS device to a Fourth Amendment search renders traditional visual surveillance by law enforcement without a warrant unconstitutional. This argument is unconvincing. Traditional visual surveillance techniques, such as tailing vehicle or staking out particular premises, fall safely within the judicially sanctioned bounds of Knotts, 460 U.S. at 278. As long as technology is used to assist human observation by law enforcement, no Fourth Amendment search occurs. Id. However, when technology supplants human observation by law enforcement, a Fourth Amendment search has occurred. Id. The Government asserts that traditional surveillance techniques could have produced equivalent information in the case at bar. This argument is equally unconvincing. The information gathered by a GPS device is of an entirely different precision, scope and quantity than human observation. Brief, supra at 13. Additionally, the Court has stated that means do matter. In Kyllo, the Court stated that [t]he fact that equivalent information could sometimes be obtained by other means does not make lawful the use of means that violated the Fourth Amendment. Kyllo, 533 U.S. at 35. For example, warrantless wiretapping of ones telephone conversation is a violation of the Fourth Amendment. Katz, 389 U.S. at 353. However, recording the same conversation by planting an agent in ones midst does not violate the Fourth Amendment. Lopez v. United States, 373 U.S. 427, 429 (1963). For Fourth Amendment analysis, the means used to gather information do indeed matter. CONCLUSION

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Legal Research & Writing Lockwood Memo 4 11/24/2011

Information gathered from a GPS device cannot be readily duplicated by the public and reveals intimate details about an individuals life, which a reasonable person does not to expect to be publicly exposed. Therefore, the DEA agents use of the GPS device violated the defendants reasonable expectation of privacy, which constituted a Fourth Amendment search. DEA agents obtained no warrants for the GPS device installation or monitoring. Searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under Fourth Amendment. Katz, 389 U.S. at 357. All evidence obtained by searches and seizures in violation of the Constitution is constitutionally inadmissible in federal court. Weeks v. United States, 232 U.S. 383, 391-392 (1914). Therefore, all evidence obtained from the GPS devices should be suppressed as a matter of law.

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