United States District Court, E.D. California
KIMBERLY J. MUELLER, District Judge.
This matter is before the court on defendants' motion to suppress evidence gained from a Global-Positioning-Satellite (GPS) tracker placed on two vehicles. The government opposes this motion. The court heard testimony at an evidentiary hearing on May 21, 2014 at which Hayes Gable appeared for Erica Martinez-Rangel; Dina Santos for Isidro Gutierrez-Valencia; Michael Bigelow for Martin Garcia-Chavez; Carl Larson for Jesus Munoz-Castanon; James Greiner for Pedro Gutierrez-Valencia and specially on behalf of John Manning for Cruz Manzo-Gonzalez; Ben Williams for Alfredo Gallardo-Sosa; Danny Brace for Gumersindo Perez-Herrera. Samuel Wong, Assistant U.S. Attorney, appeared for the government. ECF No. 367. The court has considered the parties' initial briefing, the hearing testimony and the supplemental briefs submitted after hearing. The court ultimately concludes, after a careful and searching review of the record and considered reading of the applicable law, that the defendants' motion should be DENIED as explained below.
A. Procedural Background
Defendants previously sought an order from the duty magistrate judge compelling the United States to provide discovery of GPS tracker information under Federal Rule of Criminal Procedure 16 and Brady v. Maryland, 373 U.S. 83 (1983). ECF No. 282. This request was an attempt to establish that the investigating agents, who employed tracking devices on certain vehicles used to facilitate the crimes charged, did not objectively and reasonably rely on binding Ninth Circuit precedent in their warrantless use of the tracking devices. The magistrate judge denied defendants' discovery motion. ECF No. 297.
Defendant Pedro Gutierrez-Valencia initially filed the motion pending before this court on October 10, 2012, and supplemented it on September 25, 2013. Defs.' Mot., ECF Nos. 270, 271; Supp. Mem. P.&A., ECF No. 330. The United States filed its opposition on November 16, 2013. Opp'n, ECF No. 331. As noted, defendants supplemented their briefing following the evidentiary hearing. ECF No. 404. The government filed a supplemental opposition brief. Supp. Brief in Opp'n, ECF No. 422. Defendants submitted a reply to the opposition. Supp. Reply, ECF No. 423.
B. The Parties' Arguments
Defendants claim (1) the use of tracker devices without a warrant violates their Fourth Amendment rights, and (2) the information obtained from the devices should be suppressed under the exclusionary rule. Mem. P. & A. in Supp. at 11, 14, ECF No. 271; Supp. Mem. P.&A. at 2, ECF No. 330. Defendants initially asserted that when Agent Burns placed the GPS tracking devices on the Explorer and Durango in 2009, "it is the trespass by placing the warrantless tracking device on each vehicle that violates the Fourth Amendment in this case." Mem. P. & A. in Supp. at 13, ECF No. 271. In their supplemental briefing, the defense modifies the focus of its argument, contending baldly that the Ninth Circuit has been "fundamentally wrong" regarding the Fourth Amendment issues raised in this case; it argues the decision in McIver was inconsistent with Supreme Court precedent even in 2009, so the agents here cannot be said to have been complying with then-binding precedent. See generally ECF No. 404. The defense further argues that because Agent Burns did not testify expressly that he had an understanding of the case law at the time he placed the trackers, he could not have been acting in reliance on any then-applicable law. Id. at 8.
The government contends, to the contrary, (1) law enforcement did not invade private property to place the trackers but rather placed each tracker when the vehicles were on a driveway accessible from public space in accordance with precedent at the time, (2) despite defendants' claim, no court had held at the time that the good faith exception provided by Davis v. United States, infra , does not apply where officers use a warrantless tracker device in compliance with circuit precedent, and (3) no Ninth Circuit or Supreme Court case prohibited attachment of warrantless tracker devices in public areas. Opp'n at 2, ECF No. 422.
C. Relevant Facts
This prosecution is related to an investigation of two roadside "drop point" locations in Tehama County on California Highway 36, referred to as the "Vista Drop Point" and "Guardrail Drop Point." The government suspected defendants used these two locations to drop off and pick up supplies for nearby marijuana gardens on federal land, and also to drop off and pick up marijuana garden workers. See Decl. of David Burns at 2, ECF No. 348. During pre-indictment investigation, officers placed a 24-hour surveillance camera near the Vista Drop Point to monitor activity. Ex. B, ECF No. 271 at 3.
Through surveillance between March and May of 2009, law enforcement agents identified three vehicles that stopped at the drop points multiple times. The vehicles were a 1999 Ford Explorer, a 2000 Dodge Durango, and a 2001 Saturn. Decl. of David Burns at 2. All three vehicles were registered to defendant Maria Del Rocio Arceo-Rangel. Id. Based on the surveillance footage and the belief that the Vista and Guardrail areas were being used as drop points, David Burns, Special Agent with the Bureau of Land Management, installed trackers on each vehicle on multiple occasions: on the Explorer on May 18, 2008, June 5, 2009, June 16, 2009, June 26, 2009 and July 7, 2009; on the Saturn on June 5, 2009 and June 16, 2009; and on the Durango on July 16, 2009, August 4, 2009 and August 25, 2009. Id. at 4. Defendants request the suppression of information from the trackers placed on the Explorer and Durango. Defs.' Mot. at 10.
Agent Burns attests each car was parked in the driveway of Arceo-Rangel's residence each time he placed a tracker on them, such that he could attach the tracker while standing on the public street. Decl. of David Burns at 4. On one occasion, when the Explorer was parked in a way that Agent Burns would have had to step onto the driveway to replace the tracker, he waited until the next night when he again was able to access the vehicle from the street. Id. at 4.
On cross-examination, Agent Burns testified he had not read United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010) or the subsequent Pineda-Moreno decision on remand prior to the evidentiary hearing, though he recalled the case law being discussed in his annual training before he retired in 2010. ECF No. 385 at 18-19. He testified he understood the concept of the curtilage of a residence from "various legal courses" he attended "over the course of my law enforcement career." Id. at 42. He testified, consistently with his declaration, that while he could not remember exactly the location of the Durango and Explorer at each time he placed a tracker, each vehicle was in one of the following places: the driveway, across the street on the street, or on the far or near side of the street on which Arceo-Rangel lived. Id. at 31, 38-39. Agent Burns testified to his understanding regarding the use of trackers, at the time, which was that "the current law allowed us to put those on if we were in a public place, " and officers "routinely" installed them without documentation. Id. at 52. Agent Oper's testimony at the evidentiary ...